Labrador (Migration)
[2024] AATA 3865
•6 September 2024
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 old, at the time of application — would be of exceptional benefit to the Australian community.
7. While cl 858.212 is situated below a sub-heading ‘Criteria to be satisfied at time of application’, in Prabhakaran v MICMA,[1] the Court held that the whole of cl 858.212 should be construed as allowing consideration of circumstances arising after lodgement of the visa application, rather than being construed as needing to be satisfied at the time of application.
[1] Prabhakaran v MICMA [2023] FedCFamC2G 357 at [56].
8. In this matter the applicant has nominated that he is applying for a distinguished talent visa based on his achievements in his profession, specifically in paediatrics. He was nominated by Anthony Ian Lewis, an Australian citizen, in a Form 1000 signed and dated 29 September 2020.
Does the applicant have an internationally recognised record of exceptional and outstanding achievement in the profession?
9. A record is an aggregation or a list, not necessarily a large aggregation or a long list.[2] ‘Achievement’ as it appears in the relevant criterion is capable of denoting a single achievement and also of operating as a mass noun to denote two or more achievements.[3] Once the record of achievement is identified, the question then is whether it amounts to one which is of exceptional and outstanding quality.
[2] Springs v MICMSMA [2020] FCCA 371 at [61]; Zhang v MIMA [2007] FMCA 664 at [36]–[37].
[3] Springs v MICMSMA [2020] FCCA 371 at [61].
In determining whether the visa applicant has a ‘record of exceptional and outstanding achievement’, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary.[4]
[4] Gaffar v MIMIA [2000] FCA 293 at [19]–[20].
With regard to ‘exceptional and outstanding’ achievement, Departmental policy states the following, among other things:
individuals with an internationally recognised record of exceptional and outstanding achievement are usually those who are leaders in their particular field;
an applicant would generally have a record of sustained and multiple achievement. However, a single achievement by an applicant may still be regarded as a record of ‘exceptional and outstanding’ achievement if that achievement is cutting edge and highly innovative in nature.[5]
[5] Policy – Migration Regulations – Schedules – Sch2 Visa 858 - Distinguished Talent – 3.3.1.1 The applicant’s distinguished talent (re-issued 15/8/2021).
Government policy does not form a pre-determined frame within which the Tribunal considers the relevant criteria, nor does the application of such policy relieve the Tribunal from considering a claim made by an applicant where the claim has a basis in the relevant criteria.[6]
[6] See Ludgero v MICMSMA [2021] FCCA 1060 (see [62]–[66], [74]).
The applicant has provided evidence in relation to employment, education, awards, peer recognition, professional memberships, and other claims to meet the criteria set out in reg 858.212(2)(a) including:
Employment
· Post-graduate medical intern, Medical Center Manila, Philippines - 1995-96
· Paediatric Resident Officer (on Training), St Luke’s Medical Center, Philippines - 1998-2000
· Therapeutic Efficacy Surveillance Physician, New Tropical Medicine Foundation, Philippines - 2001-02
· Paediatric Consultant, St Luke’s Medical Center, Philippines - 2001-03
· Fellow in Paediatric Neurology, Children’s Hospital Westmead, NSW - 2003
· Paediatric RMO (Orthopaedics and Neurology) Sydney Children’s Hospital - 2003
· Paediatric Registrar, Canberra Hospital - 2003-04
· Fellow in Rural Paediatrics, Dubbo Base Hospital - 2004-05
· Paediatric Registrar, Blacktown and Mount Druitt Hospital -2005-08
· Rotating Paediatric Registrar, Royal Children’s Hospital Melbourne - 2009-13
· Neonatology Registrar, Monash Newborn - 2013-14
· Paediatric Registrar, Dandenong and Casey Hospital - 2014-16
· Senior Paediatric Registrar, Sunshine Hospital - 2016
· Locum Paediatric Registrar, Geelong Hospital - 2016
· Neonatal Intensive Care Unit Registrar, Nepean Hospital - 2017-18
· Paediatric Registrar, Nepean Hospital - 2018-19
· Paediatric Registrar, Blacktown and Mount Druitt Hospitals - 2019-present
Education and qualifications
· Bachelor of Science in Biology, De La Salle University, Taft Avenue, Manila, Philippines 1989
· Doctor of Medicine, University of the East Ramon Magsaysay Memorial Medical Center College of Medicine, Quezon City, Philippines 1995
· Registered Physician, Professional Regulations Commission. Board of Medicine, Republic of the Philippines 1997
· Diplomate Paediatrician, Philippine Paediatric Society Specialty Boards, Philippines 2014
· Medical Practitioner with General Registration. Medical Board of Australia, Australian Health Practitioner Regulation Authority 2016
Awards
· 2000 Most Love Resident Award, St. Luke’s Medical Center, Philippines
· 2000 First Place Winner, 7th Resident’s Research Forum, 5 December 1999, St. Luke’s Medical Center, Department of Paediatrics, Philippines
· 2001 “Young Investigator Award 2001”, Search for The Young Investigator Award, 25 July 2001, 1st Place Winner, Research and Biotechnology Division, St. Luke’s Medical Center
· 2004 Appreciation Award in Recognition of Contribution to Student’s Education, School of Rural Health Dubbo Campus, 30 November 2004
· 2018 Excellent Performance in Paediatrics – Recognizing Exceptional Contribution on Improving Patient Flow, Department of Paediatrics, Nepean Hospital, 09 July 2018
Papers and presentations
International
· Co-authored: “Efficacy studies of CQ+SP, SP and artemether-lumefantrine (Coartem) for uncomplicated P. falciparum malaria in Mindanao Island, The Philippines”, Final Report submitted to WHO Roll Back Malaria (September 2002) - This research led the change in the National Malaria Drug Policy in 2003 in the Philippines
Hospital and medical centre based
· “Guillain Barre Syndrome with ophthalmoplegia (Fisher-Miller Syndrome) in a paediatric patient” - a case report presented during the Fifth Resident’s Case presentation, 27 October 1998, St. Luke’s Medical Center, Third Place Winner
· “Diabetes insipidus with short stature” - a case report presented during the Tuesday Case Conference,1 February 2000, St. Luke’s Medical Center
· “Withdrawal response to painful stimulus in preterm infants given lidocaine-prilocaine cream” - a research paper presented to the 7th Research Forum, December 2000, St. Luke’s Medical Center - presented at the “Search for the Young Investigator Award 2001 Research Forum, 25 July 2001. St. Luke’s Medical Center, Young Investigator Award 2001 Winner
· “Pausing for the Hyperactive Child”, presented at Blacktown Hospital Grand Rounds, 15 March 2005
· “Ethical Dilemma in Decision -Making at the Edge of Neonatal Viability”, case report and discussion presented at Geelong Hospital Department of Paediatric Grand Rounds, 23 April 2010
· “Retropharyngeal Infections in Children”, -case report and discussion presented at Royal Children’s Department of Emergency Medicine, Wednesday Teaching, 29 September 2010
· “Neonatal Resuscitation Following an Unexpected Apparent Stillbirth”, case report and discussion presented at Box Hill Hospital Perinatal Mortality and Morbidity Conference, 12 August 2011
· “Pain Management and Analgesia in Newborn”, Monash Newborn Inservice, 31 January 2014. Also presented in Monash Newborn Grand Rounds, and Dandenong Hospital Grand Rounds, and Nepean Hospital Paediatric and NICU Meeting 20 July 2017
· “Acute Confusional State in Childhood – a case report and discussion on clinical features, differential diagnosis and management”, Wednesday Grand rounds, Dandenong Hospital, 18 November 2014
University thesis
· “The effects of 3-indoleacetic acid and gibberellic acid to the flowering and vegetative stages of Anacardium occidentale l.” a thesis presented for BS Biology Degree at De La Salle University, December 1989
Referees
· Dr. Anthony Lewis, Consultant Neonatologist, Monash Newborn, Monash Medical Centre
· Dr. Heather Coughtrey, Staff Neonatologist – Neonatal Intensive Care Unit, Nepean Hospital
· Dr. Peter Forrest, Consultant Paediatrician – Dandenong Hospital and Casey Hospital
Further recommendation letters have been received from:
· Mary Beth Franco-Tanco, Head Institute of Paediatrics and Child Health - St Luke’s Medical Centre, Philippines
· Dr Fe Esperanza Espino, Head Department of Parasitology - Research Institute of Tropical Medicine, Phillipines
· Dr A P Naidoo OAM, Consultant Paediatrician - Coffs Harbour Paediatric Clinic
In determining whether the visa applicant has a ‘record of exceptional and outstanding achievement’, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary.[7] What amounts to ‘exceptional and outstanding achievement’ is a matter of opinion and degree,[8] and it is not required that the applicant be a ‘living treasure’.[9] The circumstances that will meet this requirement will vary across different professions and activities as some will require far greater levels of knowledge and skill by a visa applicant to rise above the ordinary and the merely competent. This may well not be a level demonstrated by a person that has been in supporting roles as a professional but does not demand to be performing at the highest level.
[7] Gaffar v MIMIA [2000] FCA 293 at [19]–[20].
[8] Springs v MICMSMA [2020] FCCA 371 at [63]; upheld on appeal in Springs v MICMSMA [2021] FCA 197 at [80]. An application for special leave to appeal to the High Court was also dismissed: Springs v MICMSMA [2022] HCATrans17.
[9] Gaffar v MIMIA [2000] FCA 293 at [20].
In this case, Dr Labrador has contributed, in many ways, what would be expected of his role and stature in the medical profession. However, in the fields of: malaria treatment which was recognised as a paradigm shift and adopted by World Health Organisation (WHO) as a treatment tool in the Philippines, the Indo-Pacific region and worldwide (see Dr Espino’s recommendation letter); and, management of newborn pain (see Young Investigator Award) which is being widely adopted as the standard for newborn pain management; are both demonstrations of excellence which is out of the ordinary in Dr Labrador’s profession. This is attested to by his referees and supported by awards, publications and adoption by WHO. Therefore, the Tribunal is satisfied Dr Labrador has a ‘record of exceptional and outstanding achievement.
Is the achievement internationally recognised?
The record of exceptional and outstanding achievement must be ‘internationally recognised’. Achievement in a profession, a sport, the arts, or academia and research that has not been recognised at an international level would therefore not meet the criterion.
In Springs the Court considered that the question of whether an applicant has an internationally recognised record of exceptional and outstanding achievement (in this case, in the arts) involves a determination by reference to the opinions or knowledge of persons or of a class of persons (‘reference audience’) who are distributed among two or more countries and are aware of the applicant’s record of achievement. The Court suggested a non-exhaustive list of evidence which it considered may be relevant to determining whether there exists a reference audience who recognises the applicant’s record of achievement to be ‘exceptional and outstanding’ and whether that record of achievement is internationally recognised.[10]
[10] Springs v MICMSMA [2020] FCCA 371 at [63]–[64].
As earlier discussed, Dr Labrador’s achievements in malaria treatment has been adopted internationally and still current. His management of newborn pain initiatives are widely adopted in Australia and are continually being developed and slowly adopted outside Australia.
On the basis of his awards, highly qualified international referees, and publications the Tribunal is satisfied Dr Labrador’s record of exceptional and outstanding achievement is ‘internationally recognised’.
Is the applicant still prominent in the area?
The visa applicant must still be prominent in the area in which they have an internationally recognised record of exceptional and outstanding achievement.[11] It is not enough that they have a record of past achievement that is internationally recognised as outstanding and exceptional; the visa applicant must continue to have some prominence in that area.
[11] Cls 858.212(2)(b).
The term ‘prominent’ does not require that the visa applicant maintain the level of achievement referred to in relation to cl 858.212(2)(a), but only that they continue to have a degree of importance or prominence in the area in which that record of achievement has been recognised.
Departmental policy provides the following list of information/documentation that may demonstrate the applicant’s prominence in their field/area of expertise:[12]
[12] Policy – Migration Regulations – Schedules – Sch2 Visa 124 - Distinguished Talent – 3.3.1.2 Must still be prominent (re-issued 20/1/2021); Policy – Migration Regulations - Schedules – Sch2 Visa 858 - Distinguished Talent - 3.3.2.2 Must still be prominent (re-issued 15/8/2021).
details of recently completed projects;
details of recent publications;
details of current and recently held senior positions in a sizable business or organisation;
evidence of delivering a presentation at professional forums, conferences and events;
reference letter from a university or employer;
evidence of patents, trademarks, copyrights, and other intellectual property held;
evidence of recent national and international awards;
evidence of membership of prominent international bodies, professional associations and current registrations/ licences.
Dr Labrador has excellent current letters of recommendation from eminent experts in his field. Dr Naidoo describes Dr Labrador’s work on the management of newborn pain. This medical research was critiqued by neonatologist from Monash Hospital and is now the basis of a service training program. Dr Labrador describes having given presentations to numerous hospital Grand Rounds, including recently at Goulburn Valley Hospital, Shepparton.
For these reasons the Tribunal is satisfied that Dr Labrador is still prominent in the area.
Would the applicant be considered an asset to the Australian community?
Departmental policy states that an applicant would be considered an asset if the applicant’s settlement in Australia will be ‘useful’ to and benefit the Australian public, not limited to the applicant and/or nominator, prospective employer or the applicant’s local community. As the term ‘asset’ is not defined in the Regulations, its ordinary dictionary meaning should be applied, and it does not only refer to economic benefit but could also refer to social and/or cultural benefit to the Australian community.
Dr Labrador is an innovative doctor that has demonstrated an ability to identify and develop practical solutions to problems that face Australian children, in particular those children that are born prematurely. This is attested to by his referees, his awards, his publications, and the work he has performed at numerous hospitals and medical facilities in Australia.
For these reasons, the Tribunal is satisfied Dr Labrador would be considered an asset to the Australian community.
Would the applicant have no difficulty in obtaining employment, or in becoming established, in Australia in the area?
The requirement in cls 124.211(2)(d) and 858.212(2)(d) is that the applicant would have no difficulty in obtaining employment, or in becoming established, in Australia in the area. When assessing this criterion, Departmental policy states that consideration can be given to the following:[13]
[13] Policy – Migration Regulations - Schedules - Sch2 Visa 858 – Distinguished Talent - 3.3.2.4 Employability – 3.3.2.4.2 Assessing employability (reissued 15/8/2021).
employment contracts or offers of employment related to the area of achievement for work in Australia. This may be evidenced by current and future employment opportunities from employers, employment/recruitment agencies, universities or organisations involved with the area of achievement in Australia;
evidence of self-employment or opportunities to establish a viable business within the area of achievement;
evidence of sponsorships, scholarships, grants or other payments intended to support the applicant while they are engaged in activities related to the area of achievement;
evidence of academic qualifications in the applicant’s area of achievement; or
demonstrated track records of previous employment in the applicant’s area of achievement.
Since he has been in Australia Dr Labrador has displayed an ability to obtain employment at the highest level for his current Australian qualifications in a number of hospitals and medical facilities. It is generally acknowledged that Australia has a shortage of such qualified professionals. Dr Labrador provides an added advantage that he has a good record of working in regional areas of Australia that is hardest hit by shortages of professional staff.
For these reasons, the Tribunal is satisfied that the applicant would have no difficulty in obtaining employment, or in becoming established, in Australia in the area.
Is the Nomination correct?
Where the applicant is seeking to meet the provisions of cl 858.212(2), the approved Form 1000 must accompany the visa application.[14] An approved form 1000 requires the applicant’s record of achievement in an area (as mentioned in paragraph (a)) to be attested to, relevantly by an Australian citizen who has a national reputation in relation to the area.
[14] Items 1112(3)(c), 1113(3)(d).
Based on the application form and the approved Form 1000 on file the Tribunal is satisfied that the nomination is correct, and the application is attested to by an Australian citizen who has a national reputation in relation to the area.
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.
George Hallwood
Member
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