Lim (Migration) - [2018] AATA 1764

Lim (Migration) [2018] AATA 1764 (3 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dongyeol Lim
Mrs Sunhee Baek
Mr Chiwoo Lim
Miss Hayeon Lim
Mr Gangmin Lim
CASE NUMBER:  1607139
DIBP REFERENCE(S):  BCC2016/1002562
MEMBER:Sheridan Lee
DATE:3 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) class BX visas.

Statement made on 03 May 2018 at 5:02pm

CATCHWORDS
Migration - Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Whether the applicant has an internationally recognised record of exceptional and outstanding achievement – Kendo practitioner – Significant domestic achievements – Lack of international achievements at time of visa application – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212(2)(a)
CASES
Zhang v MIMA [2007] FMCA 664
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 3 May 2016 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).
The primary applicant, Dongyeol Lim, and members of his family unit, Sunhee Baek, Chiwoo Lim, Hayeon Lim and Gangmin Lim applied for the visas on 9 March 2016. The delegate refused to grant the visas on the basis that the primary applicant (the applicant) did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations.
The delegate did not accept that the applicant had an internationally recognised record of exceptional and outstanding talent in the sport of kendo. In particular, the delegate noted that ‘the evidence is not indicative of an athlete, instructor or referee who is considered eminent in the top echelons of the field’.
The delegate refused to grant a visa to the second, third, fourth and fifth named applicants on the basis that they did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 858 visa.
The applicant applied to the Tribunal on 19 September 2016 for a review of the delegate’s decision and a copy of the primary decision record was included with the application for review. The Tribunal has before it the departmental file relating to the application and material provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 24 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Brian Brestovac, Chairman of the Kendo Board for the Australian Kendo Renmei. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
For the following reasons, the Tribunal has concluded that the decision under review…

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 Lim (Migration)

Details

AGLC: Lim (Migration) [2018] AATA 1764
Case: [2018] AATA 1764
Decision Date: 3 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a kendo practitioner, sought review of a decision to refuse this visa. The primary issue was whether the applicant possessed an internationally recognised record of exceptional and outstanding achievement in their nominated field of sport.

The Tribunal was required to determine if the applicant met the criteria outlined in paragraph 858.212(2)(a) of the Migration Regulations 1994. This involved assessing whether the applicant had an "internationally recognised record of exceptional and outstanding achievement" in sport, specifically kendo. The Tribunal also considered and dismissed the alternative criterion under subclause 858.212(4), which relates to providing specialised assistance to the Australian Government in matters of security, as the applicant had not asserted this.

In its reasoning, the Tribunal noted that the phrase "internationally recognised record of exceptional and outstanding achievement" is not defined in the Regulations. However, it referred to judicial interpretations which indicate that a "record" does not necessitate a quantifiable, lengthy, or sustained history of achievement, but rather an aggregation or list of accomplishments. Despite the applicant having significant domestic achievements in kendo, the Tribunal found that these did not demonstrate an internationally recognised record of exceptional and outstanding achievement at the time of the visa application. Consequently, the Tribunal affirmed the decision to refuse 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 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:a profession;a sport;the arts;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 asserted that he provided specialised assistance to the Australian Government in matters of security at the time of application on 9 March 2016. Accordingly, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically kendo.Internationally recognised record exceptional and outstanding achievement The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 858.212(2)(a) is not defined in the Regulations. However, the Tribunal notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration. In particular, the Courts have held that the ordinary meaning of 'record' does not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a 'record' is an aggregation or a list, not necessarily a large aggregation or a long list.[1][1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].

Decision

Reasons for decision

It follows that the second, third, fourth and fifth applicants do not meet the secondary criteria in cl. 858.321 as they are not, nor were they previously, members of the family unit of a person who holds a Subclass 858 visa on the basis of having satisfied the primary criteria. Accordingly, the decision in respect of the secondary applicants must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) class BX visas.Sheridan LeeMember

Ratio Decidendi

Legal Principle Established

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