Silva (Migration) - [2018] AATA 3588

Silva (Migration) [2018] AATA 3588 (20 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jessica Maria Da Conceicao Silva
Mr Francesco Capra
CASE NUMBER:  1702289
DIBP REFERENCE(S):  BCC2016/2251863 BCC2016/2772974 BCC2016/3633612 BCC2017/1200202
MEMBER:Sheridan Lee
DATE:20 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Distinguished Talent (Residence) (class BX) visas for reconsideration, with the direction that the primary applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations

Statement made on 20 August 2018 at 4:07pm

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 – Samba dancer – Various high level achievements in the relevant field – Whether the applicant is still prominent – Applicant prominent within their field while in Australia – Applicant would continue to be an asset to the Australian community – Decision remitted with direction
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212(2)(a)
CASES
Gaffar v MIMA [2000] FCA 293
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 1 February 2017 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).
Mrs Jessica Maria Da Conceicao Silva and her husband, Mr Francesco Capra, applied for the visa on 1 July 2016. The delegate refused to grant the visa on the basis that the primary applicant (the applicant) did not satisfy cl. 858.212(2)(b) of Schedule 2 of the Migration Regulations 1994 as he was not satisfied that the applicant was still prominent in her area of talent.
Mrs Silva appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s nominator, Ms Li-Anne Carroll, Director of Latin Productions and Ms Sandra Paula Correia Barbosa, from SanDance Samba Academy and Bamboo Productions.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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)(b) 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…

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 Silva (Migration)

Details

AGLC: Silva (Migration) [2018] AATA 3588
Case: [2018] AATA 3588
Decision Date: 20 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Silva, an applicant for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The dispute centred on whether the applicant, a samba dancer, possessed an internationally recognised record of exceptional and outstanding achievement and whether she remained prominent in her field.

The primary legal issue before the Tribunal was to determine if the applicant met the requirements of clause 858.212(2)(b) of the Migration Regulations 1994, specifically whether she was "still prominent" in the arts as a samba dancer. The Tribunal also considered the meaning of an "internationally recognised record of exceptional and outstanding achievement," noting that judicial interpretation suggests a "record" does not necessarily require quantification in terms of size or duration.

The Tribunal reasoned that the applicant's achievements, while not necessarily extensive in duration, constituted a record of exceptional and outstanding achievement. Crucially, the Tribunal found that the applicant was still prominent within her field while in Australia and would continue to be an asset to the Australian community. Consequently, the Tribunal remitted the applications for reconsideration, directing that the primary applicant met the criteria in clause 858.212. The application of the second named applicant, who applied as a member of the family unit, was to be determined by reference to the outcome of the primary applicant's reconsidered application.

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 application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(b) 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 she provided specialised assistance to the Australian Government in matters of security at the time of application on 1 July 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)(b) of the Regulations; that is, whether the applicant is still prominent in the arts, specifically as a samba dancer.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

As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.DECISION The Tribunal remits the applications for Distinguished Talent (Residence) (class BX) visas for reconsideration, with the direction that the primary 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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