KUMAR (Migration)

[2019] AATA 952

KUMAR (Migration) [2019] AATA 952 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  PANKAJ KUMAR
RITU KUMAR SAXENA
ARITRI KUMAR
ANMOL KUMAR

CASE NUMBER:  1804828

HOME AFFAIRS REFERENCE:                BCC2018/124727

BCC2018/189289

MEMBER:Lilly Mojsin

DATE:7 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas.

Statement made on 07 March 2019 at 3:44pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – banking – Bank of India – CEO of Australian branch – made loans and attracted deposits – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212

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 8 February 2018 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant [applicant] applied for the visa on 9 January 2018.

3. The delegate refused to grant the visa on the basis that cl.858.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the field of banking.

4. The applicants appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Hilton Wood.

5. The applicants were represented in relation to the review by their registered migration agent, who did not attend the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Distinguished Talent Class BX 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.

7. The applicant provided a copy of an article in support of his claims stating

   "Union Bank of India has now been in Australia for over two years and the experience has been far better than we expected," Mr Raj Kiran Rai, Chief Operating Officer and Managing Director of one of India's largest public sector banks, the Union Bank of India, says. "In fact, we are looking at opportunities to further strengthen our brand. Australia is a heaven for us bankers."

   Minter Ellison, a leading law practice, in their annual Bank Tracker report which details asset growth and progress of foreign banks in Australia, has UBI's Sydney branch in third position among all foreign banks in Australia.

   The Indian banking system is very strong. It has funded the green revolution, the manufacturing revolution and now the infrastructure revolution. Union Bank has contributed enormously to each of these.

   At Union Bank, through all our overseas offices - and through our Australia office and its CEO Pankaj Kumar - we are keen to support the local non-resident Indians and their businesses here. We look forward to offering our wide range of services

8. At the Tribunal hearing the applicant explained that he came to Australia on 11 November 2016 and due to his work the bank has increased and now is considered the 3^rd foreign bank in Australia for its service. The bank’s licence is not for retail banking but instead gives loans and accept deposits. He wants to stay in Australia as his family like the education system and sports culture.

9. It was put to the applicant that the Bank of India is one of 47 foreign banks that have a branch in Australia[1] and that to obtain this visa required more than success at running the branch but requires an international record that had to be exceptional.  

   [1]

10. The applicant’s sponsor Hilton Wood stated that he works for the DOHA bank in Qata and the applicant is recognised as a talent in India. Amongst the foreign banks to get to grow to number 3 in Australia requires the applicant to get individual loans and work with independent developers. The applicant has attracted deposits. To reach the position of CEO and be appointed to Australia is indicative of the applicant’s abilities due to the enormous competition to attain such an appointment.

    REASONS AND FINDINGS

11. The issue in the present review is whether the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in a profession, banking.

12. To satisfy the criteria for the visa the applicant must meet the requirements of cl.858.212(2) or (4).

13. Clause 858.212(4) requires that an applicant has provided specialized assistance to the Australian Government in matters of security. There is no claim made that the applicant is seeking to meet this sub-clause. It is not applicable.

14. Clause 858.212(2) requires that the applicant:

    The applicant:

    (a) 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

    (b) is still prominent in the area; and

    (c) would be an asset to the Australian community; and

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

    (e) produces a completed approved form 1000; and

    (f) 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.

15. The applicant applied for the visa on the basis of his record and achievements as banker. He was nominated, in a Form 1000 that accompanied his visa application, by an Australian. The form was signed and dated on 14 June 2016.

16. The applicant is an employee of the Bank of India. He has worked successfully and his skills have been recognised by his employer, he has been sent to Australia to open a bank branch and he has been very successful. The Tribunal accepts that the applicant is recognised in his own country of India, and in his bank, as an exceptional achiever in the banking profession. The applicant has been not provided any evidence to the Tribunal that he has an international record of achievement and he has been unable to demonstrate that he has an international record of achievement that is exceptional and outstanding. 

17. For these reasons, the applicant does not meet cl.858.212(2)(a).

18. The Tribunal has made findings that the applicant does not meet cl.858.212(2)(a). He must meet all the criteria in cl.858.212(2). It is therefore not necessary to assess him against cls.858.212(2)(b)-(f).

19. As the applicant does not meet cl.858.212(2)(a) he cannot meet cl.858.212(2).

20. The Tribunal must affirm the decision under review.

    DECISION

21. The Tribunal affirms the decisions not to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas.

    Lilly Mojsin
    Member