Labrador (Migration) - [2024] AATA 3865

Labrador (Migration) [2024] AATA 3865 (6 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Dr Romeo Labrador
CASE NUMBER:  2210827
HOME AFFAIRS REFERENCE(S):          BCC2020/2394077

MEMBER:George Hallwood
DATE:6 September 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa for reconsideration with the direction that the applicant meets the criteria in cl.858.212(2) of Schedule 2 to the Migration Regulations 1994.

Statement made on 06 September 2024 at 3:13pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – satisfied Dr Labrador has a ‘record of exceptional and outstanding achievement – achievements in malaria treatment has been adopted internationally and still current – nomination is correct – still prominent in these areas – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 12 July 2022 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 September 2020. The delegate refused to grant the visa on the basis that the applicant had not satisfied subclause 858.212(2)(a) because the delegate was not satisfied that the applicant had evidenced a highly regarded international reputation as a prominent figure in paediatrics or allow the applicant to be classified as or to be ranked against others in the field as superior.

3. The applicant appeared before the Tribunal on 20 August 2024 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the requirements of cl 858.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. Clause 858.212(2) requires that:

The applicant meets the requirements of subclause (2) or (4).
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
Note: An approved form 1000 requires the applicant’s record of achievement in an area (as mentioned in paragraph (a)) to be attested to by:
a.     an Australian citizen; or
b.     an Australian permanent resident; or
c.     an eligible New Zealand citizen; or
d.     an Australian organisation;
who has a national reputation in relation to the area.
(f)if the applicant has not turned 18, or is at least 55 years…

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 Labrador (Migration)

Details

AGLC: Labrador (Migration) [2024] AATA 3865
Case: [2024] AATA 3865
Decision Date: 6 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Dr Labrador for a Distinguished Talent (Residence) (class BX) Visa, Subclass 858. The dispute concerned whether Dr Labrador possessed a record of exceptional and outstanding achievement in a field of endeavour.

The Tribunal was required to determine if Dr Labrador's achievements in the field of malaria treatment met the criteria for a Distinguished Talent visa, specifically whether these achievements had been recognised internationally and were still current, and if the nomination supporting the application was correct.

The Tribunal found that Dr Labrador's achievements in malaria treatment had indeed been adopted internationally and remained current. It was satisfied that Dr Labrador continued to be prominent in these areas, thereby meeting the requirements for the visa. Consequently, the Tribunal remitted the decision under review.

Orders