Li (Migration)

[2019] AATA 1862

Li (Migration) [2019] AATA 1862 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ziang Li

CASE NUMBER:  1812484

DIBP REFERENCE(S):  BCC2018/169184 BCC2018/45403

MEMBER:Peter Emmerton

DATE:11 June 2019

PLACE OF DECISION:  Adelaide

DECISION:  The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Statement made on 11 June 2019 at 2:13pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – event management and international student engagement – substantial positive contributor within South Australia – particularly high bar – not at top or nearly the top of chosen field – decision under review affirmed

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

CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 11 April 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 visa applicant, Mr Ziang Li, applied for the visa on 3 January 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the primary applicant met the requirements of clause 858.212(a) of Schedule 2 to the Migration Regulations 1994, as they were not satisfied that applicant had demonstrated an internationally recognised record of exceptional and outstanding achievement in the fields of event management and international student engagement.

3. The applicant appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr G Chin and Mr W Spurr AO.

4. Documents provided to the Tribunal for the purpose of review included the following:

   ·Reference Mr W T Spurr AO Chair Study Adelaide, Chair Adelaide Venue Management Corporation, former Deputy Chair Adelaide Festival Centre;

   ·Evidence of awards including SA Governor’s Multicultural Youth Award, International Student Award-Community Engagement SA, Distinguished Chinese Student Award – PRC, AR Riddle Scholarship – University of Adelaide, Waler and Dorothy Ducan Trust Scholarship – University of Adelaide;

   ·Resume’ for the applicant;

   ·Master of Finance and Business Economics, Degree Certificate;

   ·Certificate of Registration of a Company – ALLBTS PTY LTD;

   ·USB demonstrating achievements of ALLBTS PTY LTD, functions, event management and entrepreneurial arts activities and events undertaken by the applicant as the Managing Director;

   ·Statement and supporting photographs of relevant positions held by the applicant including, Secretary of Chinatown Adelaide, Youth Advisor Committee for Adelaide, Founder and President of the Adelaide University Chinese Students Association, International student officer SRC of University of Adelaide, Student Representative of the Professions Faculty of the University of Adelaide, Chinese Secretary of the Chinese Association of South Australia;

   ·Form 1000.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).

7. Subclause (2) sets out the following requirements:

   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 approval 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 is not turned 18, or is at least 55 years old, at the time of application, would be of exceptional benefit to the Australian community.

8. In determining whether the applicant meets cl.858.212(2), all of the stated subclauses must be met.

9. The applicant has not made any claims in relation to cl.858.212(4).

10. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in event management and international student engagement.

11. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Regulations.

12. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

13. According to the Macquarie Dictionary online, the word ‘exceptional’ is defined to mean: ‘1. forming an exception or unusual instance; unusual; extraordinary; 2. extraordinarily good, as of a performance or product; 3. extraordinarily skilled, talented, or clever.’ It also defines the word ‘outstanding’ to mean: ‘1. prominent; conspicuous; striking; 2. that continues in existence; that remains unsettled, unpaid, etc.; 3. standing out; projecting; detached; 4. that resists or opposes.’

14. The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. Notably in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a national living treasure’.

15. The Tribunal acknowledges however that, while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

16. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, is apposite. The Tribunal notes the comments of Kieffel J at [49]-[50]:

    ‘Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.’

17. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that their record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

18. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase ‘internationally recognised record of exceptional and outstanding achievement’. The Tribunal further notes that the Department guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement (PAM – Sch-2 Visa 858 – Distinguished Talent):

    What does ‘exceptional’ mean?

    For 858.212(2)(a), applicants should be very eminent in the top echelons of the field.

    They should demonstrate extraordinary and remarkable abilities and be superior to others in the field.

    ‘Internationally recognised’ in this context means that a person’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.

    ‘Exceptional and outstanding’ should be accorded ordinary dictionary meaning within context.

    Policy requirements

    Claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such
    performance may only be realised locally, would not be regarded as exceptional and
    outstanding achievement.

    A single achievement by the applicant, particularly where it appears to be the only significant
    achievement, would not be regarded as exceptional and outstanding achievement. It is
    anticipated that an applicant would have a record of sustained achievement that is unlikely to
    diminish in the future.

    An achievement that may attract national acclaim would not be considered as ‘internationally
    recognised’ unless that achievement is in a field practised in other countries (including
    Australia) and has would attract similar acclaim in those countries.

    Given the ordinary dictionary meanings, in order to have a record of exceptional and
    outstanding achievement an applicant would be expected to have achievements remarkable
    in relation to that field and in relation to other participants in that field. An applicant should be at the very top of their field.

    Assessing this criterion

    In assessing the applicant’s record of achievement, officers may take into account information such as, but not necessarily limited to:

    ·information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement;

    ·supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia;

    ·awards or higher qualifications received from internationally recognised institutions or organisations;

    ·details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international sporting bodies, sporting scholarships received a newspaper and magazine articles testing to achievements;

    The policy guidelines in PAM3 reflect the following view in relation to the requirement of international recognition:

    International recognition required

    Achievement in a profession, a sport, the arts or academia and research that has not or would be not be recognised at an international level would not be regarded as exceptional and outstanding.

    It is expected that an applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well is international standing. In determining the international standing of the applicant, officers should consider:

    ·the international standing of the country, with the applicant’s achievements were realised, in respect of that particular field.

    ·the standing of the achievement in relation to Australian standards and the standing of the achievement in relation to international standards.

    For example an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional outstanding achievement if the:

    ·field is undertaken and recognised in a number of countries including Australia and

    ·achievement would be similarly recognised in relation to international and Australian standards for that field.

19. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it. Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case, and where appropriate, to the extent the policy is inconsistent with the regulations, the Tribunal is required to depart from it. The Tribunal has considered and taken into account the individual circumstances of the applicant.

20. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

    Applicant’s evidence

21. In addition to the written and audio-visual evidence listed in paragraph 4, the applicant explained in considerable detail the various substantial achievements of his event management company and the range of international student engagement achievements to his credit.

22. The Tribunal accepts the statement by the applicant that the applicant’s company in FY 2018 had revenues in the vicinity of $150,000 with a 10% profit margin. It also accepts the assertion that the FY 2019 period will have revenues approximating $200,000 with a similar profit margin.

23. The Tribunal accepts the evidence presented to the Tribunal, by the applicant, that the $100,000 capital used to set up the company in December 2015 was jointly provided by his family and support by his peers. It notes that he acknowledged that no payments have been made back to his backers at this stage because of their belief in what he is doing and the relative youth of his business venture.

24. The Tribunal asked the applicant to explain how he would justify establishing that he was a world leader in his endeavours. How would he rank himself against individuals internationally recognised to be at or near the top of their chosen fields.

25. The Tribunal asked him how he would rank himself against the leading events promoters and entrepreneurs in the entertainment industry globally and also within Australia.

26. The Tribunal acknowledged the substantial input from the applicant into the Chinese student community in South Australia and the Adelaide University. It went on to enquire what his activities have been outside of South Australia. In addition it enquired to what extent was his work known inside of China and Australia, other than within South Australia.

27. He stated that he considers his relative ranking at an internationally recognised level. Mr Spurr AO and Mr Chin both provided evidence to the Tribunal attesting to the meaningful contributions made by Mr Li.

28. The Tribunal was not satisfied by the evidence presented prior to the hearing nor at the hearing, that the applicant is at the top or very nearly at the top of his fields. It does however accept that he is a substantial positive contributor within South Australia and has established networks both within South Australia and parts of China which assist in his social and economic contribution to Australia. It would also be reasonable to view his achievements within his niche, which has brought otherwise relatively unknown performers, within the larger Australian population, to the attention of Australian audiences as laudable.

29. The applicant is 28 years of age and is a Chinese national. It is self-evident form his scholarly achievements and his entrepreneurial drive, which has already resulted in substantial achievements in event management, that Mr Li is developing a career path with great promise.

30. There are a substantial number of highly regarded, event management organisations, owned and lead by hard working and talented individuals, operating from Australia at both a local and international level.

31. The Tribunal is also aware of the substantial efforts made by many individuals and organisation aimed at furthering international student engagement. This is in no way seen to diminish the hard work and passion exhibited by the applicant. His achievements are both substantial and commendable.

32. However the bar which must be reached in order to satisfy the requirements of this visa type is set particularly high. It is an expectation of the Tribunal that an applicant’s achievements would be recognised as exceptional and outstanding in several comparable countries, as well as Australia. The successful applicant would need to be at or near the top of their field.

33. Based on the evidence before it, the Tribunal is not satisfied that at the time of application, the applicant had a record of exceptional and outstanding achievement as an event manager or engagement of international students, which was internationally recognised.

34. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl.858.212(2)(a).

35. As the applicant does not meet the requirements of cl.858.212(2), the applicant does not satisfy cl.858.212 for the grant of the visa and the decision under review must be affirmed.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

    Peter Emmerton
    Member