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

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).
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.”
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.
Relevantly, cl.124.211(2) requires that the applicant:
·has an internationally recognised record of exceptional and outstanding achievement in one of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kujawski (Migration)

Details

AGLC: Kujawski (Migration) [2019] AATA 3073
Case: [2019] AATA 3073
Decision Date: 2 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Migrant) (Class AL) visa, subclass 124, by a Montessori teacher. The applicant sought review of a decision to refuse her visa. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 124.211(2) of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the applicant possessed an internationally recognised record of exceptional and outstanding achievement in her profession, as required by clause 124.211(2)(a), and whether she had provided a completed, approved Form 1000 from a nominator with a national reputation in the relevant field, as stipulated by clause 124.211(2)(e). The Tribunal noted that all subclauses of clause 124.211(2) must be satisfied for the visa to be granted.

The Tribunal reasoned that the applicant, a Montessori teacher, had not demonstrated an internationally recognised record of exceptional and outstanding achievement. While the applicant provided a Diploma in Montessori Method of Education and a Bachelor of Arts in Social Sciences, these qualifications, in the Tribunal's view, did not establish the level of international recognition and outstanding achievement contemplated by the visa provisions. Furthermore, the Tribunal noted the absence of an approved Form 1000 completed by a nominator with a national reputation. Consequently, the Tribunal affirmed the decision not to grant the visa. The Tribunal also found that secondary applicants, who were family members, did not meet the criteria as they were not part of a family unit of a person satisfying the primary criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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.” 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. 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. The applicant has not made any claims in relation to cl.124.211(4). 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). 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 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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