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

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).
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.
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.
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.
For the following reasons, the…

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 Li (Migration)

Details

AGLC: Li (Migration) [2019] AATA 1862
Case: [2019] AATA 1862
Decision Date: 11 June 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the criteria set out in clause 858.212(1) of the Migration Regulations 1994, specifically subclause (2), as the applicant had not made claims under subclause (4).

The central legal issue was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in the field of event management and international student engagement, as required by clause 858.212(2)(a). This involved interpreting the terms "exceptional" and "outstanding" in the context of the visa subclass, considering dictionary definitions and relevant case law. The Tribunal also had to assess whether the applicant was still prominent in the field, would be an asset to the Australian community, would have no difficulty obtaining employment or establishing themselves independently in Australia, and, if applicable, would be of exceptional benefit to the Australian community.

The Tribunal considered the dictionary definitions of "exceptional" and "outstanding," which indicated a need for something unusual, extraordinarily good, or extraordinarily skilled. It also had regard to case law, including *Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs* [2000] FCA 293, which clarified that while an applicant need not be a "national living treasure," the standard required for an "exceptional record of achievement" is demonstrably out of the ordinary and varies across different fields. The Tribunal found that the applicant's achievements in event management and international student engagement did not meet this high bar, concluding that the applicant was not at the top or nearly the top of their chosen field.

Consequently, as the applicant failed to satisfy the requirements of clause 858.212(2), they did not meet the criteria for the Distinguished Talent (Residence) visa. The Tribunal affirmed the decision not to grant the visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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; 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 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. In determining whether the applicant meets cl.858.212(2), all of the stated subclauses must be met. The applicant has not made any claims in relation to cl.858.212(4). The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in event management and international student engagement. 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. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a). 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.’ 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’. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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