Son (Migration) - [2020] AATA 5894

Son (Migration) [2020] AATA 5894 (22 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hyojin Son
CASE NUMBER:  1729790
DIBP REFERENCE(S):  BCC2017/2046159
MEMBER:John Cipolla
DATE:22 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the applicant meets the following criteria:
cl.858.212 of Schedule 2 to the Regulations.

Statement made on 22 September 2020 at 4.21pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – swimming coach – applicant’s various achievements and accolades – widespread recognition by peers in South Korea – ongoing prominence in the field – asset to the community – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212
CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 9 November 2017 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 8 June 2017. The delegate refused to grant the visa on 09 November 2017 on the basis that the applicant has not met clause 858.212 of Schedule 2 of the Migration Regulations. Clause 858.212(2)(a) requires that the applicant have an internationally recognised record of exceptional and outstanding achievement in their designated field.
Having recourse to the information available, the delegate noted that the applicant had 52 awards recognised by The President of Korea Swimming Federation as a professional swimmer, and was recognised as ‘Best Coach’ by Rally Co. Sports Pty Ltd in 2011 for outstanding coaching at the second Rally’s National Masters Swimming Championship. It was also observed that the applicant had attained a position as the Head Swimming Coach for Manjimup Marlin Swimming Club Inc. and that they had been sponsored by Swimming WA, who believed the applicant would be an asset to regional swimming in the state. It was deemed by the delegate that this record was not sufficient for the applicant to meet the requirements of 858.212(2)(a) for grant of the visa.
The applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a number of witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for…

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 Son (Migration)

Details

AGLC: Son (Migration) [2020] AATA 5894
Case: [2020] AATA 5894
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered whether an applicant for a Distinguished Talent (Residence) visa had an internationally recognised record of exceptional and outstanding achievement in sport as a swimming coach at the time of their visa application on 8 June 2017.

The Tribunal was required to determine the meaning of "internationally recognised record of exceptional and outstanding achievement" as it appeared in clause 858.212(a) of the Migration Regulations 1994, given that this phrase was not defined within the Regulations. The Tribunal also had to consider the applicability of existing case law, such as *Gaffar v Minister for Immigration and Multicultural Affairs*, to the specific wording of the current clause.

In its reasoning, the Tribunal referred to dictionary definitions of "exceptional" and "outstanding" to understand their ordinary meanings. It noted that while case law, such as *Gaffar's case*, established that an exceptional record of achievement requires demonstrated excellence that is out of the ordinary, this precedent had limited application because it concerned different wording in a previous regulation. The Tribunal acknowledged that the standard required would vary across professions and activities, and that exceptional circumstances are those that are unusual or set a person apart from others in a comparable situation.

The Tribunal concluded that the matter should be remitted for reconsideration by the Department, with a direction that the applicant met the criteria in clause 858.212 of Schedule 2 to the Regulations.

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 issue in the present case is whether or not the applicant at time of application for the visa on 8 June 2017, had an internationally recognised record of exceptional and outstanding achievement in sport as a swimming coach. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations). In this context, the Tribunal has had regard to the relevant dictionary meanings. The Tribunal has had regard to the Macquarie Dictionary Online, where 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 has also had regard to case law applicable to cl.858.212(2)(a). 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 Affairs (Gaffar’s case) [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 also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity. The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.” Therefore, Gaffar’s case, has limited application in the current context. The Tribunal notes that whilst 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. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425. 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.

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 858 visa.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the following criteria:cl.858.212 of Schedule 2 to the Regulations.John CipollaSenior Member

Ratio Decidendi

Legal Principle Established

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