Lee (Migration) - [2018] AATA 4197

Lee (Migration) [2018] AATA 4197 (13 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sungpil Lee
CASE NUMBER:  1716901
DIBP REFERENCE(S):  BCC2016/2189161
MEMBER:Sheridan Lee
DATE:13 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations

Statement made on 13 September 2018 at 11:27am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of achievement – clarinet – voluminous record of achievements – emerging talent – achievements in international competition – contribution to the church – letter of recommendation – current employment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 858.212

CASES
Bretag v MILGEA [1991] FCA 582
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Zhang v MIMA [2007] FMCA 664
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 20 July 2017 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).
The visa applicant applied for the visa on 28 June 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate acknowledged ‘the applicant’s academic and professional achievements along with some noteworthy success at international competitions,’ however felt that the applicant’s body of work was ‘more reflective of an emerging talent, who over time may develop an internationally recognised record of exceptional and outstanding achievement’.
The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Aunt, Ms Shinduk Kwoun and Uncle, Mr Robin Yang.
The applicant was nominated for the visa by Australian citizen, Mr Gary McPherson, Professor in Music at the Melbourne Conservatorium of Music. Mr McPherson did not attend the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Distinguished Talent (Residence) (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.
The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations.
The application was…

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 Lee (Migration)

Details

AGLC: Lee (Migration) [2018] AATA 4197
Case: [2018] AATA 4197
Decision Date: 13 September 2018

CaseChat Overview and Summary

The matter before the Tribunal concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the arts, specifically as a clarinetist. The primary issue was whether the applicant met the criteria outlined in clause 858.212(1) of Schedule 2 to the Regulations, which requires meeting the requirements of either subclause (2) or (4). The application had been refused on the basis that the applicant did not satisfy paragraph 858.212(2)(a).

The Tribunal was required to determine if the applicant possessed an internationally recognised record of exceptional and outstanding achievement in the arts, was still prominent in that field, would be an asset to the Australian community, and would have no difficulty obtaining employment or establishing themselves independently in Australia. The Tribunal also considered the requirement for an approved form 1000, which necessitates attestation from a person or organisation with a national reputation in the applicant's field. The Tribunal noted that the criteria were to be assessed as at the time of application, with subsequent achievements serving only as an aid to that assessment.

The Tribunal reasoned that the applicant had satisfied all the applicable requirements under clause 858.212(2). Consequently, the Tribunal found that the applicant met the criteria in clause 858.212(1) and, by extension, clause 858.212 as a whole. The Tribunal therefore remitted the application for reconsideration with the direction that the applicant meets the criteria in clause 858.212 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Distinguished Talent (Residence) (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. The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations. The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and therefore clause 858.212. This clause relevantly provides:858.212(1) The applicant meets the requirements of subclause (2) or (4).(2) 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; andNote 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.(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or(b) the Director-General of Security;the applicant has provided specialised assistance to the Australian Government in matters of security. The applicant has not made any claims in relation to cl.858.212(4). The applicant’s claim hinges on whether he can satisfy cl.858.212(2)(a)(iii) of Schedule 2 to the Regulations. At the outset, the Tribunal notes that this is a time of application criteria: that is, the applicant must have been able to satisfy this requirement at the time he lodged his visa application on 28 June 2016. The applicant’s achievements in his field between that date and the date of this decision can be used as an aid, but in the absence of relevant evidence, they are not to be treated as determinative: Bretag v MILGEA [1991] FCA 582.

Decision

Reasons for decision

As the applicant meets all of the applicable requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations.Sheridan LeeMember

Ratio Decidendi

Legal Principle Established

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