VARGAS RODRIGUEZ (Migration) - [2019] AATA 3074

VARGAS RODRIGUEZ (Migration) [2019] AATA 3074 (23 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Oscar Javier VARGAS RODRIGUEZ
Mrs LUISA FERNANDA ESTUPINAN CARDENAS
CASE NUMBER:  1727717
DIBP REFERENCE(S):  BCC2017/1601068 BCC2017/1666799
MEMBER:Amanda Mendes Da Costa
DATE:23 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Distinguished Talent (Residence) (Class BX) visas, 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.

Statement made on 23 May 2019 at 9:52am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – the arts – musician – music producer – internationally recognised record of exceptional and outstanding achievement – work recognised with several nominations and awards – music scholarship recipient – recognised as prominent in field – asset to Australian 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

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 26 October 2017 to refuse to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 3 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet the requirements of cl.858.212 to Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicants appeared before the Tribunal on 17 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Martin Walter Brown – music producer, who is the applicant’s nominator.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the first named applicant (the applicant) meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).
Subclause (2) sets out the following requirements:
The applicant:
(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 a completed approval form 1000.
Note: 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…

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 VARGAS RODRIGUEZ (Migration)

Details

AGLC: VARGAS RODRIGUEZ (Migration) [2019] AATA 3074
Case: [2019] AATA 3074
Decision Date: 23 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, by a musician and music producer. The applicant sought review of a decision by the Department of Home Affairs. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 858.212(2) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in the arts, as required by clause 858.212(2)(a). This subclause mandates that the applicant must have demonstrated excellence that is out of the ordinary in their field. The Tribunal considered dictionary definitions of "exceptional" and "outstanding" and relevant case law, noting that while an applicant need not be a "national living treasure," the threshold for exceptional and outstanding achievement can vary significantly between different professions and activities.

The Tribunal found that the applicant's claims as a musician and music producer fell within the scope of "the arts" under clause 858.212(2)(a). However, the Tribunal concluded that it could not definitively determine whether the applicant met the full requirements of clause 858.212(2) based on the evidence before it. Consequently, the Tribunal remitted the applications for reconsideration by the Department, with a direction that the first applicant met the criteria under 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the first named applicant (the applicant) meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4). Subclause (2) sets out the following requirements:The applicant:(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 a completed approval form 1000.Note: An approved form 1000 requires the applicant’s record of achievement in anarea (as mentioned in paragraph (a)) to be attested to by (a) an Australiancitizen; or (b) an Australian permanent resident; or (c) an eligible NewZealand citizen; or (d) an Australian organisation; who has a nationalreputation 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. The applicant has not made any claims in relation to cl.858.212(4). The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met. Clause 858.212(2)(a) requires the applicant to have an internationally recognised record of outstanding achievement in: a profession; a sport; the arts; or academia and research. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a musician and music producer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(iii) as belonging to the arts as a musician and music producer for the purposes of cl.858.212(2)(a). 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 both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a). According to the Macquarie Dictionary Online, 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 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 acknowledges, however, that, while 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.

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the applications for visas to the Department to consider the remaining criteria for a Subclass 858 visa.DECISION The Tribunal remits the applications for Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:·cl.858.212 of Schedule 2 to the Regulations.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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