The Salsa Foundation (Migration) - [2020] AATA 2529

The Salsa Foundation (Migration) [2020] AATA 2529 (20 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  The Salsa Foundation Pty Ltd
VISA APPLICANT:  Ms Eglantine De Oliveira
CASE NUMBER:  1730139
DIBP REFERENCE(S):  BCC2017/827981
MEMBER:Amanda Mendes Da Costa
DATE:20 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Distinguished Talent (Migrant) (Class AL) visa for reconsideration, with the direction that the visa applicant meets the criteria in cl.124.211 of Schedule 2 to the Regulations.

Statement made on 20 March 2020 at 9:40am
CATCHWORDS
MIGRATION – Distinguished Talent (Migrant) (Class AL) – Subclass 124 – substantial record of achievements – prominent in the area of Brazilian Zouk – evidence provided – nominator is one of the most highly respected Latin dance school in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, s 65, 338, 347,
Migration Regulations 1994, Schedule 2, cl 124.211
CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 22 September 2017, to refuse to grant a Distinguished Talent (Migrant) (Class AL) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(5) of the Act.
The visa applicant applied for the visa on 2 March 2017. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.124.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because she was not satisfied that the visa applicant had an internationally recognised record of exceptional and outstanding achievement in the area of the arts, namely Brazilian Zouk dance.
The review application was lodged with the Tribunal on 30 November 2017. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b). In the present case, the review application was made by Mr Walter Villagonzalo, on behalf of the nominator, The Salsa Foundation Pty Ltd.
Mr Walter Villagonzalo, the sole director of the The Salsa Foundation Pty Ltd (the nominator) and the visa applicant appeared before the Tribunal at the hearing on 22 January 2020 to give evidence and present arguments.
At the hearing, the Tribunal raised with Mr Villegonzalo the issue that the person who is entitled to apply for review of the delegate’s decision is the nominator i.e. The Salsa Foundation Pty Ltd. Mr Villegonzalo explained that he did not have the advice of a migration agent when he filled out the review application form and mistakenly listed himself as the review applicant instead of the nominating company. He always intended to make the application on behalf…

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: The Salsa Foundation (Migration) [2020] AATA 2529
Case: [2020] AATA 2529
Decision Date: 20 March 2020

CaseChat Overview and Summary

The matter before the Tribunal concerned an application for a Distinguished Talent (Migrant) (Class AL) visa, Subclass 124, made by an applicant renowned for their achievements in Brazilian Zouk dance. The core dispute revolved around whether the applicant had demonstrated a substantial record of achievements and was still prominent in their field, as required by the visa criteria.

The Tribunal was tasked with determining if the applicant met the requirements of clause 124.211(2) of Schedule 2 to the Regulations, specifically whether they possessed an internationally recognised record of exceptional and outstanding achievement in the arts, and if they remained prominent in that area. The Tribunal also considered whether the applicant would be an asset to the Australian community and have no difficulty establishing themselves in Australia, though the primary focus was on the applicant's achievements and prominence.

In its reasoning, the Tribunal acknowledged that the applicant was within the eligible age range and that a completed Form 1000, signed by a nominator with a national reputation in the field, had been lodged. The Tribunal noted the applicant's global reputation in arranging and performing Brazilian Zouk dance styles. While the provided text indicates a finding that the applicant meets all requirements of clause 124.211(2), the ultimate decision was to remit the application for reconsideration. The Tribunal directed that the applicant meets the criteria in clause 124.211 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 Distinguished Talent (Migrant) (Class AL) visa is a permanent visa for a person who has 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. There is nothing before the Tribunal to suggest that the applicants have provided specialised assistance to the Australian Government on matters of security. The criteria for a Subclass 124 visa are set out in Part 124 of Schedule 2 to the Regulations. Relevantly, cl.124.211(2) requires the applicant to demonstrate that at the time of application, he or she:(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 an approved form 1000; and(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. In this case, the Tribunal is satisfied that the applicant (who was born on 9 May 1985) was over 18 and under 55 years at the time the visa application was lodged on 2 March 2017. Accordingly, the requirement of cl.124.211(2)(f) is not applicable. The Tribunal notes that the completed approved form 1000 dated 11 November 2016 and signed by the nominator was lodged with the application. The Tribunal is satisfied that the nominator is an Australian organisation which has a national reputation in relation to the area and therefore cl.124.211(2)(e) is met. The issue in the present case is whether the visa applicant meets the requirements in cl.124.211(2)(a). In determining this issue, the Tribunal has had regard to all of the relevant evidence before it, including the supporting documents and submissions on the Department’s and the Tribunal’s files, as well as the oral and written evidence provided at the hearing, which the Tribunal sets out as follows. The visa applicant applied for the distinguished talent visa on the basis of her skills as a dancer, teacher, performer and choreographer renowned around the world for arranging Brazilian dance styles, particularly Brazilian Zouk. The Tribunal notes that Brazilian Zouk is a partner dance originating from the Brazilian dance Lambada. The dance is now combined with a variety of music, including Caribbean Zouk music, which is how the dance became to be known as Zouk.Written references Karen Rutherford is the founder and director of the Kmotion Dance Studio in Canberra, ACT, which has been operating since 2006. She attests to the popularity of the visa applicant’s style of Zouk with the studio’s students and her reputation worldwide as the choice of dance partner for some of best male dances in the area of Latin and Brazilian Zouk dance. Ms Rutherford also attests to the demand for the visa applicant’s participation at festivals “everywhere”.

Decision

Reasons for decision

As the visa applicant meets all of the requirements in cl.124.211(2) the Tribunal finds that the applicant meets the requirement in cl.124.211(1) and accordingly meets cl.124.211 as a whole.DECISION The Tribunal remits the application for a Distinguished Talent (Migrant) (Class AL) visa for reconsideration, with the direction that the visa applicant meets the criteria in cl.124.211 of Schedule 2 to the Regulations.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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