Lkhagvadorj (Migration) - [2019] AATA 2815

Lkhagvadorj (Migration) [2019] AATA 2815 (11 February 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Altantulga Lkhagvadorj

Ms Uugantsetseg Javzandulam Miss Chinkhuslen Altantulga

CASE NUMBER: 1820481

DIBP REFERENCE(S): BCC2017/4441902 BCC2017/4617105

MEMBER: Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS: 11 February 2019 at 3:43 pm (QLD time)

DATE OF WRITTEN REASONS: 25 February 2019

PLACE OF DECISION: Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the first- named applicant meets the following criteria for a Subclass 858 visa:

·cl.858.212 of Schedule 2 to the Regulations.

Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the second-named and third-named applicants.
Statement made on 25 February 2019 at 11:58am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 – table tennis player – nominated by Table Tennis Queensland – best Mongolian table tennis athlete of his generation – impact on table tennis in Australia to help the sport grow – sustained excellence internationally – requirement of ‘prominent’ less than requirement of outstanding and exceptional record of achievement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cl.858.212

CASES
Gaffar v MIMA [2000] FCA 293
Zhang v MIMA [2007] FMCA 664

APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 25 June 2018 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under the Migration Act 1958 (the Act).

At the hearing on 11 February 2019, the Tribunal made an oral decision. The following are the written reasons for that decision.

STATEMENT OF DECISION AND REASONS

The first-named applicant (the applicant) is a 30-year-old citizen of Mongolia. The second- named and third-named applicants are identified in the visa application as the applicant’s partner and daughter.

The Subclass 858 (Distinguished Talent) 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 criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

The applicants applied for the visas on 23 November 2017 on the basis that the applicant satisfied the primary criteria as he had an internationally recognised record of exceptional and outstanding achievement in the sports area of table tennis.

The delegate refused to grant the visas on the basis that they were not satisfied that the evidence provided demonstrated that the applicant had an internationally recognised record…

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.

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Details

AGLC: Lkhagvadorj (Migration) [2019] AATA 2815
Case: [2019] AATA 2815
Decision Date: 11 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the application of Mr Lkhagvadorj for a Distinguished Talent (Residence) (Class BX) visa (subclass 858). Mr Lkhagvadorj, a table tennis player, was nominated by Table Tennis Queensland, which asserted he was the best Mongolian table tennis athlete of his generation and that his presence in Australia would significantly contribute to the growth of the sport. The delegate of the Minister had refused the visa application.

The primary legal issue before the Tribunal was whether Mr Lkhagvadorj met the criteria for the Distinguished Talent visa, specifically whether he had an internationally recognised record of sustained excellence in his field and whether his achievements were such that he would be able to make a significant contribution to the Australian community. The Tribunal was required to assess the applicant's international standing and the potential impact of his contribution to table tennis in Australia.

In its reasoning, the Tribunal noted that the requirement for a "prominent" applicant was less stringent than that of an applicant with an "outstanding and exceptional record of achievement." It found that Mr Lkhagvadorj's international achievements, while not necessarily placing him in the absolute elite globally, demonstrated sustained excellence and that he had been recognised as the best in his country. The Tribunal concluded that the delegate had erred in their assessment of the applicant's potential contribution to table tennis in Australia. Consequently, the Tribunal remitted the decision to the delegate for reconsideration.

Orders