Villanueva Carrillo (Migration) - [2017] AATA 951

Villanueva Carrillo (Migration) [2017] AATA 951 (23 May 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Heldy Allen Villanueva Carrillo
CASE NUMBER:  1601775
DIBP REFERENCE(S):  BCC2015/1006514
MEMBER:Glen Cranwell
DATE OF DECISION:  23 May 2017
DATE CORRIGENDUM
SIGNED:27 June 2017
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:

1.The date of decision on the decision record (23 March 2017) should be replaced with 23 May 2017.

Glen Cranwell
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Heldy Allen Villanueva Carrillo
CASE NUMBER:  1601775
DIBP REFERENCE(S):  BCC2015/1006514
MEMBER:Glen Cranwell
DATE:23 March 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Statement made on 23 May 2017 at 1:15pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – Internationally recognised record of exceptional and outstanding achievement – Achievement in Pop Corn Art – Target audience of children – No international recognition
LEGISLATION
Migration Act 1958, s 65
Migration Regulation 1994, Schedule 1, Item 1113, Schedule 2, cl 858.212
CASES
Zhang v MIMA & Anor [2007] FMCA 664
Gaffar v MIMIA [2000] FCA 293
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 28 January 2016 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 1 April 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts.
The applicant appeared before the Tribunal on 23 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The Distinguished Talent Class BX visas are permanent visas for persons who have 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.
At the time the visa application was lodged, the Distinguished Talent (Residence) Class BX visa contained only one subclass: Subclass 858 (Distinguished Talent) visa: Item 1113 of Schedule 1 to the Regulations.
The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. The issue in dispute in this review is whether the…

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 Villanueva Carrillo (Migration)

Details

AGLC: Villanueva Carrillo (Migration) [2017] AATA 951
Case: [2017] AATA 951
Decision Date: 23 May 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Ms. Villanueva Carrillo for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant sought to establish an internationally recognised record of exceptional and outstanding achievement in the field of "Pop Corn Art," with a target audience of children.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" as required by clause 858.212(2)(a) of the Migration Regulations. This required the Tribunal to assess if the applicant's achievements in Pop Corn Art demonstrated a level of excellence that was out of the ordinary and internationally recognised.

The Tribunal applied the principle from *Gaffar v MIMIA* [2000] FCA 293, which held that a similar phrase concerning an "exceptional record of achievement" requires demonstrated excellence that is out of the ordinary. In this instance, the applicant identified her field as Pop Corn Art and stated that her artistic abilities were realised only after studying in Australia. While she presented various documents, including references from educational institutions and awards such as "Student of the Year 2012," the Tribunal found that these did not establish an internationally recognised record of exceptional and outstanding achievement in her chosen field. The Tribunal noted that the applicant's target audience was children and that she worked with children, but this, in itself, did not satisfy the criterion for international recognition of exceptional and outstanding achievement.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Distinguished Talent visa, as she failed to satisfy the requirements of clause 858.212.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the Court in Gaffar v MIMIA [2000] FCA 293 held that a similar phrase “exceptional record of achievement” in an earlier category of skilled residence visa requires a demonstrated excellence in the relevant occupation which is out of the ordinary. The Tribunal is of the view that this is equally applicable to cl.858.212(2)(a). CONSIDERATION OF CLAIMS AND EVIDENCE On the Department file are the following relevant documents:·Reference from Surf City Christian College dated 14 February 2012;·Undated reference from Surf City Christian Church;·Certificate of Appreciation from unknown organisation;·Undated reference from Surf City International Training College;·Reference from Ace Tennis Academy dated 9 March 2015;·Reference from Surf City Church dated 18 March 2015;·Certificate of Appreciation from Surf City Christian Church dated 15 December 2012;·Student of the Year 2012 award from Surf City International Training College;·Reference from Peru “Matisse” Dance and Aerobics Workshop dated 30 March 1991;·Reference from Peru “Matisse” Dance and Aerobics Workshop dated 30 October 1995;·Certificate in Hotel Management from Institute San Martin del Peru dated 4 March 2008;·Personal Development Course in Boundaries from Surf City Christian College 2012;·Personal Development Course in Extraordinary Living from Surf City Christian College 2011;·Personal Development Course in Facilitator Training from Surf City Christian College 2013;·Personal Development Course in Search for Significance from Surf City Christian College 2011;·First aid certificate;·Certificate III in Hospitality (Commercial Cookery);·Advance Diploma of Christian Ministry and Theology from Surf City International Training College dated 19 December 2013;·Certificate III in Children’s Services;·Diploma of Sport (Development) from Ace Tennis Academy;·Reference for position of Assistant of Food and beverage from Hotel Paracas dated 14 June 2006;·Camp Australia Networking Meetings Certificate of Attendance 2015 term 1;·Letter from Provincial Municipality of Pisco dated 1 September 2007 relating to earthquake damage;·Various photographs;·Camp Australia Five Smiles Systems Areas of Measure Assistant;·Payslips from Camp Australia;·Stall documentation from Culture Street Markets;·Information on Pop Corn Art;·Statement of the applicant;·Reference from Surf City International Training College dated 1 October 2015; The applicant provided the Tribunal with the following documents:·Submissions from the representative;·Reference from Surf City College dated 16 May 2017;·Information on Pop Corn Art. At the hearing, the applicant identified her field of art as Pop Corn Art. The Tribunal asked the applicant to identify her “internationally recognised record of exceptional and outstanding achievement” in Pop Corn Art. The applicant stated that before she came to Australia, she did not know about her skills and abilities. It was only when she studied in Australia that she realised her artistic abilities. She was awarded student of the year in 2012. Her target is children, and she works with children.

Decision

Reasons for decision

As the Tribunal has found the applicant does not satisfy cl.858.212, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa. Glen CranwellMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.