Kujawski (Migration)

[2019] AATA 3073

Kujawski (Migration) [2019] AATA 3073 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Estelle Epiphene Dharshani Kujawski

VISA APPLICANTS:  Mrs Euphelia Salome Champika Solomonsz
Mr Edward Anthony Tony Solomonsz
Mr Wendell Anthony Solomonsz
Mr Warner Arden Solomonsz

CASE NUMBER:  1727521

DIBP REFERENCE(S):  BCC2017/1000700

MEMBER:Mary Sheargold

DATE:2 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants a Distinguished Talent (Migrant) (Class AL) visa.

Statement made on 02 May 2019 at 8:24am

CATCHWORDS

MIGRATION – Distinguished Talent (Migrant) (Class AL) visa – Subclass 124 (Distinguished Talent) – Form 1000 not provided – to be completed by nominator who has a national reputation in relevant field – Montessori teacher – no internationally recognised record of exceptional and outstanding achievement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 124.211(1)

CASES
Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA & Anor [2007] FMCA 66

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 September 2017 to refuse to grant the visa applicants a Distinguished Talent (Migrant) (Class AL) Subclass 124 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (visa applicant) applied for the visa on 14 March 2017. The delegate refused to grant the visa on the basis that the visa applicant did not provide an approved Form 1000 that had been completed by a nominator who has a national reputation in the relevant field.

3. The review applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, from Mr Adam Kujawski, and from Jennifer Pickard.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Distinguished Talent (Migrant) (Class AL) visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research, or have provided specialised assistance to the Australian government in matters of security.

6. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to exceptionally outstanding individuals who are eminent in the top echelons of their field, would not qualify under other visa categories, but will make substantial contributions to the Australian community because of their international achievements.”

7. The issue in the present case is whether the visa applicant meets the requirements of cl.124.211(1) of Schedule 2 to the Regulations.  Specifically, this clause requires that the visa applicant meets the requirements of either subclause (2) or (4) of cl.124.211 of Schedule 2 to the Regulations.

8. Relevantly, cl.124.211(2) requires that the applicant:

   ·has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:

   i.a profession;

   ii.a sport;

   iii.the arts;

   iv.academia and research; and

   ·is still prominent in the area; and

   ·would be an asset to the Australian community; and

   ·would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and

   ·produces a completed, approved Form 1000; and

   ·if the applicant has not turned 18, or is at least 55 years old, at the time of application – would be of exceptional benefit to the Australian community.

9. The applicant has not made any claims in relation to cl.124.211(4).

10. In determining whether the applicant meets cl.124.211(2), all of the stated subclauses must be met.  At the hearing, the Tribunal explained to the review applicant that although the Department had refused the nomination because there was not an approved Form 1000 completed by a nominator who has a national reputation in the relevant field, the Tribunal must consider each requirement set out in cl.124.211(2), and that the Tribunal had concerns in relation to cl.124.211(2)(a) as well as cl.124.211(2)(e).

11. Therefore, the first question to consider is whether the visa applicant has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research as required to satisfy cl.124.211(2)(a).

    The visa applicant’s qualifications and profession

12. The visa applicant claims her distinguished talent in a profession, specifically as a Montessori teacher specialising in teaching children 2 ½ to 6 years of age.  After the hearing, the visa applicant provided the Tribunal with a copy of her Diploma in Montessori Method of Education from the Shalford Montessori Teacher Training Centre (Sri Lanka) dated 18 March 2006 (Diploma) and a copy of her Bachelor of Arts in Social Sciences from The Open University of Sri Lanka dated 18 July 2017.  The Tribunal notes that these documents had been provided to the Department with the visa applicant’s application.

13. The visa applicant also provided the Department with a copy of her Diploma in Primary Teacher Training from the American College of Higher Education and corresponding Student Record Sheet dated 15 October 2010, a copy of her certificate of completion for a Training of Trainers Programme on Teaching Methodology from the Continuing Education Centre of the University of Vocational Technology undertaken from 27 to 31 May 2013, and a copy of her Advanced Diploma in Psychology from the Community Recovery & Development Foundation of Sri Lanka dated 4 July 2009 and Certificate of Registration from the Institute of Psychology, Counselling, Psychotherapy and Allied Professions of Sri Lanka as a psychological counsellor dated 4 July 2009.  In her oral evidence, the visa applicant stated that she has a degree in education, though the Tribunal notes there is no documentary evidence before it confirming this statement.

14. The review applicant told the Tribunal that the visa applicant has been operating her own Montessori school, Euphelia Montessori, in Colombo, Sri Lanka, since 2006.  The visa applicant gave evidence that the Association Montessori International has accepted her as a teacher trainer, and the review applicant gave evidence that the visa applicant conducts workshops training Montessori teachers on the weekends, as well as training teachers within her own Montessori school in Colombo

15. There is evidence before the Tribunal that the visa applicant owns and operates the Lorelle Montessori Teacher Training Institute in Sri Lanka, and that the visa applicant is qualified to train Montessori teachers in Sri Lanka.  Ms Pickard gave evidence that in Australia, training as a Montessori teacher is only available to those already holding a formal teaching qualification, and that training is completed either online via distance education, or in face-to-face settings in Melbourne, Sydney and Brisbane.

16. At the hearing, Ms Pickard gave evidence that in Sri Lanka, “Montessori” is synonymous with the style of long daycare commonly found in Australia.  This is consistent with the visa applicant’s Diploma being noted as specialised in education for children aged 2 ½ to 6 years of age.  The Tribunal notes the visa applicant’s Diploma records her grades for her course of study as follows:

    ·Project Work: A

    ·Practical Examination: C

    ·Written Examination: A

    ·Overall Grading: Credit

17. The Tribunal accepts the evidence before it that the visa applicant is qualified to teach the Montessori method of education to children aged 2 ½ to 6 years of age, and that she operates both a Montessori pre-school in Colombo, Sri Lanka, as well as a Montessori teacher training institute.

    Record of exceptional and outstanding achievement as a Montessori teacher

18. At the hearing, the Tribunal emphasised to both the review applicant and the visa applicant that satisfying cl.124.211(2)(a) required more than demonstrating that the visa applicant is an excellent Montessori teacher and that she has employment opportunities available in Australia.  The critical consideration is whether she had an internationally recognised record of exceptional and outstanding achievement at the time she applied for her Subclass 124 visa on 14 March 2017.

19. The ordinary meaning of “record” does not require that the record be quantifiable as large or lengthy or as having been sustained over a period of time. A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA & Anor [2007] FMCA 664. The Tribunal is mindful of the reasoning in Gaffar v MIMIA [2000] FCA 293 that the legislative requirement does not require something that makes the visa applicant's record unusual or special or out of the ordinary.

20. Although the Tribunal is not bound by Departmental policy, it is worth noting that the approach to “exceptional and outstanding achievement” set out in PAM3 includes that applicants should be eminent in the top echelons of their field, and that they should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

21. There is little evidence before the Tribunal attesting to the visa applicant having an internationally recognised record of exceptional and outstanding achievement as a Montessori teacher.  The Tribunal notes the oral evidence of the review applicant, stating that the visa applicant is at the top of Montessori teaching in Sri Lanka, but in the absence of verifiable evidence in support of her statements, the Tribunal gives little weight to that statement.  The Tribunal notes, respectfully, that the visa applicant’s Diploma grades set out above are not indicative of a person who is likely to be in the top echelon of Montessori teachers.  Further, the Tribunal finds that the results achieved by the visa applicant in her other courses of study set out in paragraph 13 above do not support a finding that she has a record of exceptional and outstanding achievement in her profession as a Montessori teacher.

22. While the Tribunal acknowledges the recognition from the Association Montessori International the visa applicant has achieved in being accepted as a teacher trainer as discussed in paragraph 14, the Tribunal finds that this does not demonstrate that the visa applicant has a record of exceptional and outstanding achievement as a Montessori teacher.

23. In her oral evidence, Jennifer Pickard stated that she visited the visa applicant’s school, Euphelia Montessori, in late 2017, and noted that “the children were working in the most perfect Montessori setting [she had] seen anywhere.”  Ms Pickard stated that she has been attending various Montessori schools around the world in recent years to see how they operate.  Ms Pickard told the Tribunal she has over 40 years of experience in education, but only qualified as a Montessori teacher in 2016.  Given Ms Pickard’s relative inexperience as a Montessori teacher, and again in the absence of verifiable evidence in support of her claims, the Tribunal gives little weight to that oral evidence.

24. Ms Kerry Black, the Director of the Accademia di Montessori Long Day Preschool in South Australia, has offered to employ the visa applicant as the Head Montessori Teacher at that preschool and has written to the Tribunal on two occasions in support of the visa applicant’s application. On 29 December 2018, she wrote to the Tribunal stating that “there is currently a shortage of Montessori qualified and trained teachers and educators in Australia,” and that “Mrs Solomonsz replied to our advertisement with great potential bringing a comprehensive skill set and high level of competence to the position, raising it to a standard of excellence in our service.”  In that same letter, Ms Black stated that since first offering the visa applicant this position in October 2017, “we have since again advertised internationally with no success and again have asked Mrs Solomonsz to fill this position as we have been unable to find an alternative suitable candidate during 2018.”

25. On 8 January 2019, Ms Black wrote to the Tribunal stating that her company’s financial situation “is now critical” and that “if we do not pick up our enrolments in the next three months we will need to liquidate our service…the downfall in our numbers can only be attributed to not having a qualified Montessori teacher to validate our program.”  While the Tribunal accepts that the visa applicant’s skills are sought by at least one institution in Australia, this does not of itself demonstrate that she has an internationally recognised record of exceptional and outstanding achievement as a Montessori teacher.

26. The review applicant and the visa applicant have not provided any additional evidence that demonstrates that the visa applicant has an internationally recognised record of exceptional and outstanding achievement as a Montessori teacher.

27. Given the lack of evidence to support the proposition that the visa applicant has an internationally recognised record of exceptional and outstanding achievement as a Montessori teacher, the Tribunal finds she does not meet the requirements of cl.124.211(2)(a), and as such, she does not meet cl.124.211(2) of the Regulations, a requirement for the grant of the visa.

28. Having made this finding, there is no need to consider the other criteria that must be met for the grant of the visa.

29. The Tribunal finds that the secondary applicants do not meet cl.124.311 of the Regulations because they are not members of the family unit of a person who satisfies or has satisfied the primary criteria set out in Subdivision 124.21 of the Regulations.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicants a Distinguished Talent (Migrant) (Class AL) visa.

    Mary Sheargold
    Member