Zorrilla Madariaga (Migration) - [2020] AATA 3090

Zorrilla Madariaga (Migration) [2020] AATA 3090 (11 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jose Antonio Zorrilla Madariaga
Ms Helga Germania Moraga Mejias
Ms Francisca Paz Zorrilla Moraga
Ms Javiera Antonia Almendra Zorrilla Moraga
CASE NUMBER:  1905134
DIBP REFERENCE(S):  BCC2018/1556149 BCC2018/1695167
MEMBER:John Cipolla
DATE:11 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for a 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.
Statement made on 11 June 2020 at 2.25pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the profession of Computer Engineer – asset to the community – applicant developed radio podcast system – concept and technology now used by streaming services – promotion of Internet of Things (IoT) – Information Technologies Architect – innovative air pollution reduction technology for underground mines developed in Australia – IoT devices for agri-tech and water management – development of cyber security IT systems – mentoring engineering students – value of the applicant’s knowledge and the experience to his employer – credentialled eligible nominator – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 20 February 2019 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 primary visa applicant (hereinafter referred to as the applicant) applied for the visa on 5 April 2018. The delegate refused to grant the visa on the basis that the delegate could not be satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in a profession, namely as a Computer Engineer.
The applicant appeared before the Tribunal on 4 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bill Farias and Mr Richard Freeman the applicant’s Australian employer.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
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)…

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: Zorrilla Madariaga (Migration) [2020] AATA 3090
Case: [2020] AATA 3090
Decision Date: 11 June 2020

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, specifically Subclass 858. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the profession of Computer Engineering, asserting that they would be an asset to the Australian community. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 858.212(1) of the Migration Regulations 1994, which requires applicants to satisfy subclause (2) or (4). The Tribunal focused on subclause (2), which mandates that an applicant must have an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research, and must still be prominent in that area, be an asset to the Australian community, and have no difficulty obtaining employment or establishing themselves independently in Australia.

The Tribunal considered the definitions of "exceptional" and "outstanding" from the Macquarie Dictionary and relevant case law, including *Gaffar v Minister for Immigration and Multicultural Affairs*. It noted that while an applicant need not be a "national living treasure," the standard of "exceptional and outstanding achievement" requires demonstrated excellence that is out of the ordinary. The Tribunal found that the applicant's claims fell within the category of a profession (Computer Engineering) for the purposes of clause 858.212(2)(a). However, the Tribunal concluded that the specific wording of the current clause, requiring an "internationally recognised record of exceptional and outstanding achievement," meant that *Gaffar's* case had limited application.

The Tribunal remitted the applications for reconsideration by the Department, with a direction that the applicant met the criteria in clause 858.212 of Schedule 2 to the Regulations. This indicated that while the applicant had satisfied some aspects of the visa requirements, further consideration was needed for the remaining criteria.

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 he has an internationally recognised record of exceptional and outstanding achievement as a Computer Engineer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(iii) as belonging to a profession 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 the relevant dictionary meanings. The Tribunal has had regard to the Macquarie Dictionary Online, where 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 has also had regard to case law applicable to cl.858.212(2)(a). 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 notes that whilst 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 a 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.John CipollaSenior Member

Ratio Decidendi

Legal Principle Established

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