Vasant (Migration) - [2019] AATA 3065

Vasant (Migration) [2019] AATA 3065 (2 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Prachi Vasant
CASE NUMBER:  1724923
DIBP REFERENCE(S):  BCC2017/1045786
MEMBER:Amanda Mendes Da Costa
DATE:2 May 2019
PLACE OF DECISION:  Melbourne
DECISION:Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.

Statement made on 02 May 2019 at 3:40pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) Class BX visa – Subclass 858 – earlier prominence as a film producer with first film – does not demonstrate internationally recognised record of exceptional and outstanding achievement at time of application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65,
Migration Regulations 1994, Schedule 2, cl 858.212(2)
CASES
Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Zhang v Minister for Immigration & Anor [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 25 September 2017 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 15 March 2017. The delegate refused to grant the visa on the basis that she did not have an internationally recognised record of exceptional and outstanding talent.
The applicant appeared before the Tribunal on 19 November and 10 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gus Howard and Mr Akshat Gupt (both by telephone).
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 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 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…

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 Vasant (Migration)

Details

AGLC: Vasant (Migration) [2019] AATA 3065
Case: [2019] AATA 3065
Decision Date: 2 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) Class BX visa (subclass 858). The applicant, a film producer, sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the arts. The Tribunal was required to determine whether the applicant met the criteria set out in 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 field of film production, as required by clause 858.212(2)(a). This involved interpreting the meaning of "exceptional" and "outstanding" in the context of the applicant's achievements, particularly in light of their first film. The Tribunal also considered the relevance of previous case law, such as *Gaffar v Minister for Immigration and Multicultural Affairs*, to the current criteria.

The Tribunal reasoned that while the applicant's claims fell within the arts category, the specific wording of clause 858.212(2)(a) required a higher threshold than previously considered in *Gaffar's* case, which dealt with a different criterion. The Tribunal noted dictionary definitions of "exceptional" and "outstanding" and acknowledged that the level of achievement required would vary by field. However, the Tribunal found that the applicant's prominence based on their first film did not, in itself, demonstrate an internationally recognised record of exceptional and outstanding achievement at the time of the application. Consequently, the Tribunal affirmed the decision not to grant the visa.

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 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. Paragraph 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 film producer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(iii) as belonging to a sport 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

Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa. DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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