Yoo (Migration) - [2019] AATA 1294

Yoo (Migration) [2019] AATA 1294 (14 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yebin Yoo
CASE NUMBER:  1801686
DIBP REFERENCE(S):  BCC2017/1558539
MEMBER:Amanda Mendes Da Costa
DATE:14 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for 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

Statement made on 14 January 2019 at 3:43pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – the arts – musician – violin soloist – young talent – internationally recognised record of exceptional and outstanding achievement – exceptional benefit to Australian community – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cls 805.212, 858.212

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [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 2 January 2018 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 28 April 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.858.212(1) in that she did not satisfy the criteria in either subclauses (2) or (4) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 8 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence by Dr Robin Wilson and Professor Nick Deutsch (by telephone).
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 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…

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 Yoo (Migration)

Details

AGLC: Yoo (Migration) [2019] AATA 1294
Case: [2019] AATA 1294
Decision Date: 14 January 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of a musician seeking a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a young violin soloist, claimed to have an internationally recognised record of exceptional and outstanding achievement in the arts. The core of the dispute revolved around whether the applicant met the specific criteria for this visa subclass, particularly concerning her level of achievement and potential benefit to the Australian community.

The Tribunal was required to determine if the applicant satisfied the requirements of clause 858.212(2) of the Migration Regulations. This involved assessing whether she possessed an internationally recognised record of exceptional and outstanding achievement in the arts, was still prominent in her field, would be an asset to the Australian community, and would have no difficulty establishing herself in Australia. Crucially, as the applicant was under 18 at the time of application, the Tribunal also had to consider whether she would be of exceptional benefit to the Australian community, as stipulated in clause 858.212(2)(f).

In its reasoning, the Tribunal examined the definitions of "exceptional" and "outstanding" and considered relevant case law, noting that while an applicant need not be a "national living treasure," the standard requires demonstrated excellence beyond the ordinary. The Tribunal found that the applicant's claims fell within the arts category as a violin soloist. It was satisfied that the applicant met clause 858.212(2)(f), concluding that her extraordinary talent, potential contribution to cultural life, and ability to inspire others demonstrated she would be of exceptional benefit to the Australian community.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the 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 matter should be remitted for reconsideration.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. 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 she has an internationally recognised record of exceptional and outstanding achievement in the area of music as a violin soloist. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(iii) as belonging to the arts 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(2)(a) is not defined in 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

The Tribunal notes that the applicant was aged 17 years at the date the visa application was made. She is therefore required to meet the requirements of cl.858.212(2)(f), which provides that if the applicant has not turned 18, or is at least 55 years old, at the time of application, he or she would be of exceptional benefit to the Australian community. The Tribunal is satisfied that the applicant’s extraordinary talent as a violin player; her capacity to contribute to the cultural life of the community; her ability to inspire other musicians and promote an appreciation of music in Australia show that the applicant would be of exceptional benefit to the Australian community. Accordingly, cl.858.212(2)(f) is met.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.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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