1415958 (Migration)

[2015] AATA 3839

1415958 (Migration) [2015] AATA 3839 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lankatilaka Dilini Narmada Kithsiri

CASE NUMBER:  1415958

DIBP REFERENCE(S):  CLF2013/309456 CLF2013/309488

MEMBER:Mary-Ann Cooper

DATE:3 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Statement made on 03 December 2015 at 2:56pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 September 2014 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).

2. The visa applicant applied for the visa on 17 December 2013. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). In particular, the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement as a synchronised swimmer.

3. The applicant appeared before the Tribunal on 13 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the President of Victorian Synchronised Swimming Inc. and a representative of her employer, the Aquatic Centre Manager of Presbyterian Ladies’ College (PLC).

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of paragraph 858.212(2)(a) and clause 858.212. This clause relevantly provides:

   858.212

   (1)     The applicant meets the requirements of subclause (2) or (4).

   (2)     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 approved form 1000; and

   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.

   [(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note]

   (4)     The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:

   (a)the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

   (b)the Director-General of Security;

   the applicant has provided specialised assistance to the Australian Government in matters of security.

   [Tribunal emphasis]

7. As confirmed at the hearing, there is no claim or any evidence that the Minister responsible for an intelligence or security agency, or the Director-General of Security, has provided an opinion that the applicant had provided specialised assistance to the Australian government in matters of security at the time of application. The Tribunal therefore finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.

8. As recorded in the delegate’s decision, a copy of which was provided with the review application, the delegate acknowledged that the applicant had some success in synchronised swimming in Sri Lanka  and that she had contributed to the sport in Australia however he was not satisfied that, at the time of application, it was sufficient to demonstrate that she had an internationally recognised record of exceptional and outstanding achievement in the sport. Consequently the application was refused.

9. Prior to the hearing the applicant’s representative provided further documents and a written submission which asserted, among other things, that the delegate had erred in finding that the applicant’s success had not been achieved over a sustained period of time. The submissions relied on the Court’s findings in  Zhang [2007] FMCA 664 which found that the word “record” should not be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time, that a record is an aggregation or a list, not “ a large aggregation of a long list.”

10. The submission further asserted that the delegate also fell into error in placing weight on and comparing the international rankings of the Australian synchronised swimming team with the Sri Lankan team. It noted that the policy provisions require delegates to consider the applicant’s achievements in relation to both Australian and international standards and contended that the competitions in which the applicant participated were internationally recognised and included competitors of high international standard, many of whom were regular participants in FINA events. The submission further contended that to have placed 3^rd in one of these events the applicant “must possess an internationally recognised record of exceptional and outstanding achievement.” The remaining contentions dealt with other elements of cl.858.212.

11. Following the hearing the representative provided a further submission in which he claimed that the applicant has an internationally recognised record of exceptional and outstanding achievement both as a synchronised swimmer and as a coach. It noted that  she commenced synchronised swimming in 2003 and received a silver medal in her first international synchronised swimming competition in 2005. It is contended that her exceptional achievement was recognised with the award of the National Colours by the Sri Lankan government. It is noted that she moved to become a coach in 2006 and the reference from her former club stated that that she is one of those who assisted in building the sport in Sri Lanka. It is contended that her “exceptional achievements” positioned her “as the obvious choice for Head Coach of PLC Aquatic”. It also asserted that under her ‘tutelage’ a number of her athletes, one of whom is a member of the Australian national squad, have been selected to compete at the Australian national synchronised swimming championships,

12. Various documents and records of the applicant were attached to the submission including as follows:

    • Letter of support from the President of the Victoria Synchronised Swimming Inc., in which he claimed that the applicant had a “prominent international career as a synchronised swimmer” and her achievements are ‘notable’ considering she competed internationally after only two years as a synchronised swimmer. He also discusses the ‘dearth’ of top-level synchronised swimming coaches and the need for the applicant as an “expert coach.” He refers to her “outstanding abilities as a former performer and coach.”
    • Letter of support from the PLC Aquatic Centre Manager claiming that the applicant was identified and recruited by their Head Coach on the basis of her internationally recognised experience as a synchronised swimmer for the Sri Lankan national team and as a coach for state and national competitors in Sri Lanka.
    • Correspondence signed by four parents of children being coached by the applicant. commending her abilities and  supporting her visa application.
    • Article from Sri Lankan journal dated 20 July 2008 reporting on the 225 sportspersons who were awarded the National Colours, which included the Sri Lankan synchronised swimming team of which the applicant was a member.
    • Copy of National Sporting Honours document given to the applicant by the Sri Lankan government in 2008.
    • A photograph which appeared in the book “Sri Lanka Proud” of the Sri Lankan synchronised swimming team which competed in 2006 Doha Asian games, including the applicant
    • Copy of Diplomas awarded to the applicant for her participation in
    • the 2006 Japan Synchronised Swimming Championships Open
    • 15^th Asian Games Doha 2007
    • Certificates of Participation for the applicant for the Hong Kong Synchronized Swimming Open Competition 2005 at which the applicant was part of a team which won Silver.
    • Several award certificates given to the applicant for in swimming, diving and synchronised swimming from Musaeus College and Otter Aquatic Club in Sri Lanka over the period 2001-2008.
    • National achievements by way of certificates reflecting the applicant’s achievement of  one 1st, two 2^nd and one 3^rd placing  in 2004-6 in synchronised swimming in Sri Lanka.

    The hearing

13. At the hearing the applicant listed her achievements as including a silver medal she won as part of Sri Lankan team at international competition in Hong Kong, a bronze medal/3^rd placing in the Japan Open Synchronised Swimming Championships in 2006 and participation in the 2006 Asian Games in Doha. She claimed these were all FINA-sanctioned events. The Tribunal observed that there was a claim made in the materials provided that the team had also been invited to the World Cup in 2006 and asked if the team had participated. The applicant said that the team had broken up shortly after the Asian Games and did not participate in the World Cup. She said that after the Asian Games she concentrated on her studies and did not compete any further at an international level but had done some volunteer coaching in Sri Lanka. She said she had studied in Malaysia and came to Australia in 2011 and had completed her Master’s degree in 2013 at Swinburne College. During that period she said she approached PLC, a private secondary girls’ college in Melbourne, with her resume to see if she could train some of their swimmers and asked them about their synchronised swimming programme. She said in May 2013 she began working as a coach under PLC’s Head Coach Erika (Ballantine, formerly Leal-Ramirez), a 3 time world champion synchronised swimmer. When Erika went on maternity leave she assumed the role of Head Coach of synchronised swimming at PLC in January 2014. She said she had trained the PLC team for the 2014 Australian National Championships and they had come first in one event, second in the Duet and a first in the Solo. Overall however she said another team, Goldenfish, had won the event. She said about 12 clubs competed.

14. She told the Tribunal that one of the students was eager to go to the national camp and she and Erika had ‘coached her up’. That girl, Prateeti, was selected for the National Squad. That team, according to the evidence, is coached by Leslie Sproule, a Canadian and former Olympic competitor, who flies in to Australia from Canada and coaches at the national camps and selects competitors for the national team. The applicant stated that her role was to assist the girls who wished to go to the camps. She said that the national team won a silver medal, competing at the duet and team events at the World Cup.

15. The Tribunal asked the applicant about her international record and what made it exceptional and/or outstanding. She responded that her experience as a synchronised swimmer had helped her get the PLC team to the national championships and the World Cup and it also meant that more girls at PLC were improving in the sport. The Tribunal asked if she had international recognition as a coach. She responded that, of the Victorian clubs, only PLC and Goldenfish  have girls competing at national and international level. She said last year PLC only had 5 participants at the national championships and they now have 11. In relation to international tournaments, she said it is anticipated that Prateeti will move into international competition in the near future.

16. The Tribunal then spoke to her nominator, the President of Victoria Synchronised Swimming Inc. (VSSI), the governing body for synchronised swimming in Victoria and a member of the Australian Sports Commission.  He explained that the national camps rotated through hosting States in Australia and that international teams, such as Malaysia, NZ and Hong Kong, sometimes attend. He said some Australian teams also go to overseas competitions.

17. He claimed that the applicant had participated in major events, that Hong Kong, the Japan Open and the Asia Games were all big events, even though they were not qualifying events for the Olympics. He claimed that if PLC lost the applicant then it would probably lose PLC as a functioning club in the sport.   He said he regarded the applicant as an elite coach and that they were lucky to have her services. He stated that she quickly ‘stepped into the breach’ when PLC’s coach went on maternity leave and that she has run the team at a high level and it is now a competitive team. When asked how her personal record was internationally recognised, he responded that she has participated in major events such as the Asian Games. He acknowledged that it is the World Cup which is the qualifying event for the Olympics, however he explained that each country has to be selective about which events it attends because of funding concerns. For example, he said the Australian team will not get AOC funding for the Olympics until it qualifies, so the swimmers have been required to self-fund their participation in the World Championships in July.

18. The Tribunal asked specifically about the applicant’s international recognition as a coach. He acknowledged that she would not be in the top 10 coaches in the world but that Australia struggles to produce or find coaches that have the technical and chorographical skills to run teams at international level. He said of the 9 local teams at the national championships only 2 have local coaches, the others all have coaches from overseas. He said it was people like the applicant who help the sport continue and repeated that without her the competition would probably lose PLC as a functioning club in 6-12 months. He said the only other potential coaches in the sport would be the ex-Olympians,  but that they are usually retired at age 30 because they have worked hard to get to the Olympics and want to start their own lives and careers. He said Australia is currently rated 19^th in the world and that Sri Lanka does not have a rating. He agreed with the Tribunal’s observation that the applicant had limited coaching experience until she commenced work at PLC, but said she had the technical skills many coaches do not possess. He said that the sport needs more swimmers and to get more of them through to the national squad. Since the applicant has commenced as coach, more swimmers have come in from PLC, they stay longer and are more competitive at a national level. He attributed this to the applicant’s skills.

19. The Tribunal asked specifically what, at the time of application, was exceptional or outstanding about the applicant’s record. He relied on the fact of her selection in a national team and the competitions in which she had participated. He said he had also seen where she had taken the PLC team. In response to the Tribunal’s direct question, he said that he considered someone could be regarded as having an international record of exceptional and outstanding achievement if the person had only had competed at the Asian Games and the Japan Cup. The Tribunal asked if these events were recognised by FINA and he said that the Japan Cup would have been sanctioned by FINA. He explained that swimmers do not get an opportunity to go to all international events, that their participation is limited to what their country can manage. For example, he claimed that Australia did not compete at the World Cup last year because of the cost. He identified the top teams as Russians, Canadians, Chinese, and the Japanese and said Australia would try to send the swimmers to competitions where these countries participated. He said that within the synchronised swimming field the applicant’s achievements were recognised.

20. The Tribunal understands from his responses that international recognition of exceptional or outstanding achievement should not be confined to participation in Olympic-level competition because many exceptional or outstanding synchronised swimmers may be restricted in their participation by virtue of their country’s resource limitations and, in any event, may be demonstrating their excellence by competing against the Olympic-level competitors in other events.

21. The Tribunal then took evidence from PLC’s Aquatic Centre Manager, the person who had hired the applicant. She told the Tribunal that the applicant started with PLC in 2013, commencing as a learn-to-swim teacher and then, when they became aware that she was experienced in synchronised swimming, she moved to coaching that sport. She said they had 4 squads and, as the existing coach could only do 4 hours per week, they were about to let the synchronised swimming team go. She said Erika, then the coach, told her that the applicant had a lot of expertise and experience and could help her. Since hiring the applicant, she told the Tribunal that the synchronised swimming team has gone from 13 to 35 participants, which she directly attributed to the applicant’s work.  In particular she mentioned one swimmer, Prateeti, who was recognised as having a lot of potential and who, she claimed, they would have lost to another club had the applicant not started at PLC. She acknowledged that the applicant was not solely responsible for Prateeti’s development but said that the additional sessions they were able to offer meant she remained at PLC. The Tribunal asked if she had been aware of the applicant’s record before hiring her. Somewhat inconsistently with her written statement, she responded that she had not known about her achievements but nor had she had initially been aware that their current coach was an Olympic champion. The Tribunal asked if the applicant had achieved any international recognition in her role as a coach at PLC. She said that she had worked with Australian national coaches, one from Russia and the current national coach who is Canadian. When asked how the applicant’s record was internationally recognised, she responded that she only knew what she had been told by the applicant and the literature she had brought in. She said that other schools had wanted to utilise her coaching skills.

22. In final submissions, the applicant’s representative acknowledged that there was no suggestion that the applicant was an Olympian but that this was too high a test and was not the threshold. He noted that Australia may be ranked 19^th but that its Olympic team is only able to beat the Malaysian junior team. It competes in Oceania region whereas Sri Lanka competes against higher ranked Asian teams. He contended that the applicant, in the Sri Lankan team, competed at an elite level against world class teams in the Japan Open and Asian Games and that this should be regarded as an internationally recognised achievement. In relation to exceptional or outstanding, the representative submitted that the applicant did not compete against these teams and come last, that the team achieved a bronze medal, and that this should be regarded as outstanding. Furthermore he asserted that the applicant’s achievements as a coach have put her into the international sphere. The PLC club has progressed significantly and he claimed this has been solely due to her coaching expertise which has been developed by her high level competition against the best teams.

    Internationally recognised record of exceptional and outstanding achievement – paragraph 858.212(2)(a):

1. The applicant claims that she has an internationally recognised record of exceptional and outstanding achievement in synchronised swimming as both a synchronised swimmer and coach. As a result, the Tribunal finds that the applicant’s claims come within paragraph 858.212(a)(ii) as belonging to a sport for the purposes of paragraph 858.212(2)(a).  

2. The Tribunal observes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in paragraph 858.212(2)(a) is not defined in the Regulations.

3. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to paragraph 858.212(2)(a). 

4. 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.”[1] 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.”[2]

   [1]

   [2]

5. The Tribunal also notes that the concept of ‘record of exceptional and outstanding achievement’ has been the subject of judicial consideration. In particular, the Courts have held that the ordinary meaning of ‘record’ does not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a ‘record’ is an aggregation or a list, not necessarily a large aggregation or a long list.[3]

   [3]     See Zhang v Minister for Immigration and Multicultural Affairs  & Anor [2007] FMCA 664

6. In addition, the Courts have held that in determining whether the applicant has a ‘record of exceptional and outstanding achievement’, the criterion requires demonstrated excellence in the relevant occupation which is out of the ordinary.[4] Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (‘Gaffar’s case’)[5] 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 clause 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 paragraph 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 the applicant need not be a “national living treasure” and that 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.

   [4]     Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293

   [5] [2000] FCA 293 at [20]

7. The Tribunal further notes that the Departmental guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement (PAM - Sch2 Visa 858 - Distinguished Talent):

   What does ‘exceptional’ mean

   For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

   ‘Internationally recognised’ in this context means that a person’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.

   ‘Exceptional’ and ‘outstanding’ should be accorded ordinary dictionary meaning within context.

   Policy requirements

   Claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.

   A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

   An achievement that may attract national acclaim would not be considered as ‘international recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

   Given the ordinary dictionary meanings, in order to have a ‘record of exceptional and outstanding achievement’ an applicant would be expected to have achievements remarkable in relation to that field and in relation to other participants in that field. An applicant should be at the very top of their field.

   Assessing this criterion

   In assessing the applicant’s record of achievement, officers may take into account information such as, but not necessarily limited to:

   ·information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement

   ·supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia

   ·awards or higher qualifications received from internationally recognised institutions or organisations

   ·details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international sporting bodies, sporting scholarships received and newspaper and magazine articles attesting to achievements

   …

   The internet is an important source of additional material and a method of confirming the accuracy of any claims made. Any adverse or conflicting information obtained from this source should be put to the applicant for comment.

8. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”. Giving the words their ordinary meaning, it would be reasonable to say that a record is ‘internationally recognised’ if it has received some form of recognition in more than one country.  

9. The policy guidelines in PAM3 appear to reflect this view when they state:

   International recognition required

   Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.

   It is expected that an applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well as international standing. In determining the international standing of the applicant, officers should consider:

   ·     the international standing of the country, where the applicant’s achievements were realised, in respect of the particular field

   ·     the standing of the achievement in relation to Australian standards and

   ·     the standing of the achievement in relation to international standards.

   For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:

   ·     field is undertaken and recognised in a number of countries including Australia and

   ·     achievement would be similarly recognised in relation to international and Australian standards for that field.

10. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[6] Whether or not an applicant’s record of achievement is exceptional and outstanding, as well as internationally recognised, will be a question of fact to be determined in the individual case and, where appropriate, to the extent that policy is inconsistent with the Regulations, the Tribunal is required to depart from it. The Tribunal has taken into account the individual circumstances of the applicant.

    Synchronised swimming record

    [6]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

11. As previously noted, in considering the applicant’s international record of achievement, the delegate found that, at the time of application, the applicant had some success in her sport in Sri Lanka and to a lesser degree overseas but did not accept that it was sufficient to demonstrate an internationally recognised record of exceptional and outstanding achievement.

12. In his submissions, as summarised above, the applicant’s representative argued that the applicant’s record was internationally recognised and that her achievements at these events should be regarded as exceptional and outstanding.

13. The evidence before the Tribunal demonstrates that the applicant has participated in the sport of synchronised swimming in both Sri Lanka and Australia and has participated as part of the Sri Lankan team in three international events. It also establishes that, of her list of achievements in the sport, the majority of her success was achieved in Sri Lanka in local competitions involving local participants. Similarly in Australia, her coaching activity has been focussed on coaching young persons for national competitions for the purpose of selection for the national team. The Tribunal notes that there is little in the evidence before it that supports a claim that this record is internationally recognised record as exceptional and outstanding.

14. In summary the Tribunal notes that the applicant’s record at an international level is as follows:

    ·     Silver medal in the Open Team routine at the Hong Kong Synchronised Swimming Open competition in 2005.

    ·     Bronze medal in team event at Japan Open Synchronised Swimming Championships in 2006.

    ·     Participation as part of the Sri Lankan team in 15^th Asian Games in Doha in 2006.

15. The Tribunal notes that in each of these events she participated as part of the Sri Lankan team and the achievements were team achievements (as opposed to medals for a solo or duet events). The Tribunal acknowledges her receipt of many awards both as an individual swimmer and a synchronised swimmer in Sri Lanka but, given Sri Lanka’s low international profile in the sport, (it had and has no international ranking), it does not consider that these achievements can appropriately be characterised as achieving or contributing to international recognition of her record as an exceptional and outstanding synchronised swimmer. That is, although her achievements received acclaim in Sri Lanka, by international standards, given the absence of Sri Lanka in the world rankings, they do not necessarily translate to international recognition of a record of exceptional and outstanding achievement.

16. The Tribunal has had regard to the evidence of the President of the VSSI as to the reasons a country may not be able to participate at the highest level internationally and why some countries, such as Australia, might be represented in world rankings merely by virtue of the being part of a smaller, less competitive pool. As explained in further submissions, Australia participates in the Oceanic pool whereas Sri Lanka participates in the Asian pool which, for example, contains the highly ranked countries of China and Japan. Therefore, notwithstanding the talent or ability of the team members, it will be harder for a team in that pool to achieve an international ranking than for Australia. As submitted by the representative, by virtue of these inconsistencies in a nation’s assessment and competition levels, it is an error to assess the applicant’s recognition or achievements by comparing Australia’s ranking in the sport with that of Sri Lanka.

17. Notwithstanding these submissions, the Tribunal is required to determine, as a matter of fact, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in her sport. The issue is not the fairness of the rankings or whether they truly reflect a country’s ability or talent but whether, as matter of fact, the particular individual who is applying for the visa has the requisite recognition. That recognition may be detrimentally affected by the ‘pool’ in which her country competes or the difficulties the country experiences with resourcing, but ultimately, in the absence of evidence otherwise, this is not a particularly relevant consideration in determining whether, as a matter of fact, she has an internationally recognised record of exceptional and outstanding achievement.

18. It is uncontroversial that Sri Lanka is not, and was not at the time of application, or at the time of the applicant’s achievements, a world ranked country in the sport of synchronised swimming. Although the applicant, as part of the Sri Lankan team, won a silver medal at the Hong Kong championships, on the evidence before the Tribunal only three teams competed. They were Hong Kong, Macau and Sri Lanka. Nothing in the evidence before the Tribunal indicates that any of these countries has a high ranking in the sport. The Tribunal accepts that the field against which the team competed in the Japan Open in 2006 was much stronger, and that the team’s bronze medal was a remarkable achievement which may have resulted in a measure of international recognition. Similarly the fact of the team’s participation in the Asian Games in 2006, an event recognised by the International Olympic Committee, would have contributed favourably to its international recognition. On this basis, the Tribunal accepts that Sri Lanka’s participation in these latter events meant its synchronised swimming team achieved a level of international recognition in the sport in 2006. The documents provided demonstrate that in Sri Lanka, over the period 2006-2008, the team’s members were recognised for these achievements. On the basis of reports in local newspapers and the award of the National Colours to each team member, and the associated publicity, the Tribunal accepts that the applicant’s international record was recognised in Sri Lanka. There is however little in the supporting documentation that demonstrates that this recognition translated to an internationally recognised record for the applicant of exceptional and outstanding achievement in the sport.

19. The PLC Aquatic Centre Manager, in her oral evidence, was unable to comment specifically on this aspect, saying she only knew what she had been told about the applicant’s record and in material she had brought in (paragraph 21). Conversely, the evidence of the President of VSSI was that these achievements did constitute the relevant record for the applicant as an individual (paragraph 19). The references and other material supplied however do not appear to support this claim.  The written reference provided from Erika Ballantine (also known by her former surname Leal- Ramirez, a former Olympian and Head coach at PLC), refers to the applicant’s international experience in the sport, that she is admired by the girls as an “elite athlete” and that her “professional experience in the sport and her academic achievements are a great example of dedication and hard work.” Notwithstanding the claim in the statement of the Aquatic Centre Manager that Erika hired the applicant “on the basis of her internationally recognised experience as a synchronised swimmer”, she makes no reference to this in her reference or to the applicant having an internationally recognised record or of any exceptional and/or outstanding achievement. Similarly the reference from Leslie Sproule, former Olympic competitor for Canada in synchronised swimming and current Australian national coach, refers to the applicant’s coaching of Prateeti Sabhlok who was part of the Australian team in Canadian Open and was to be part of the World Cup in the 2014 team. She states that she works with club coaches to prepare athletes “to move Australian programs forward” and that an experienced coach who can provide her with a national level coaching experience is important. She concludes by stating that it would be  “beneficial to allow Dilini to continue her coaching at PLC so that Prateeti and many other synchronised swimmers are able to continue their training without difficulty and improve on their abilities” and that the Tribunal consider the applicant “as a much needed expert coach in the state of Victoria.”  She does not refer to the applicant’s record or its international recognition nor does she commend or mention the applicant’s achievements as exceptional or outstanding. Similarly the reference from National Olympic Committee of Sri Lanka (f143) confirms that the applicant is one of 8 team members who won the first international achievements for Sri Lanka in sport of synchronised swimming and states that Australia will “benefit immensely through her national and international experience.”

20. Other references are glowing in their appreciation of the applicant’s contribution to synchronised swimming at PLC and provide positive comments in respect of her coaching work at PLC. The Tribunal notes that, while positive references may assist a decision maker to find that an applicant has an internationally recognised record of exceptional and outstanding achievement, they do not, of themselves, necessarily establish such a claim. This will always be a question of fact in each case. This is because paragraph 858.212(2)(a) requires the applicant’s record of achievement in his or her chosen field (in this case, the sport of synchronised swimming) to not only be internationally recognised but also to be exceptional and outstanding.

21. There are several factors that undermine the weight the Tribunal can give to the applicant’s references. In the main they refer to the applicant’s achievements since her commencement as Head Coach at PLC, after the time of this application. Similarly, they refer to the need for a coach at her level of experience, the dearth of such coaches in Australia and the potential consequences if she is not able to remain in Australia. That is, the emphasis is on her current work and the need for her skills and not by reference to  an established international reputation or profile of outstanding and excellent achievement within the sport. The references from Sri Lanka commend the applicant’s skills as a synchronised swimmer and coach however it would be conflating their content to find that they recommended the applicant as an as an individual with an internationally recognised record of exceptional and outstanding achievement in the sport. On this basis, while the Tribunal accepts that the applicant’s referees held her in high regard as a synchronised swimmer and coach and continue to do so, and that she has demonstrated excellent skills in these roles, given the limited nature of the content set out in their references regarding the applicant’s accomplishments, the Tribunal gives this evidence overall less weight in its consideration of the issues before it.  

22. In relation to the oral evidence of the VSSI president, in which he positively stated the applicant does have the required recognition, the Tribunal gives it significant weight. On balance however, on its own, in absence of other expressions of international recognition of excellent and outstanding achievement, the Tribunal considers it is insufficiently persuasive in this regard.

1. Even applying the principles in Zhang v Minister for Immigration and Multicultural Affairs & Anor[7] to the current application for review, the Tribunal considers that the applicant’s list of achievements as a synchronised swimmer and/or coach at an international level is limited. This is particularly so having regard to the fact that the applicant has only participated in three international competitions. The Tribunal accepts that, as part of the Sri Lankan team and as an individual participating in Sri Lankan competitions, she may have been rated at or near to the top of her field in synchronised swimming in Sri Lanka. While acknowledging that the applicant’s field of synchronised swimming is recognised internationally and in Australia, the Tribunal does not accept that this translates to a finding that her achievements are similarly recognised in relation to international and Australian standards. This is because, although she was part of the team which was awarded one of Sri Lanka’s first medals in synchronised swimming, that achievement was at a relatively low level by international standards. Even accepting that the Asian Games, sponsored by the International Olympic Committee, is a significant and important international event for synchronised swimming, the team was not placed at this competition and it did not compete at the elite levels of the sport, that is, at the World Cup, the World Championships or the Olympic Games. The Tribunal accepts the oral evidence of the difficulties associated with the ‘pool’ into which a nation falls and why a comparison with Australia’s rankings might not be representative of a nation’s abilities in a particular sport, but, as a matter of fact, as discussed above, international rankings are an indicator of a country’s (or an individual’s) standing in the sport. Seen in this context, the Tribunal considers that the lack of any international ranking of the Sri Lankan synchronised swimming team necessarily diminishes the claim that the applicant, as part of a Sri Lankan national team, has an internationally recognised record of exceptional and outstanding achievement in the sport.

   [7] [2007] FMCA 664

2. There may be instances where individual members of teams will have the necessary recognition by virtue of their particular talent, and several examples of such recognition can be found in the sports of swimming and cricket for example. While the Tribunal accepts that the Sri Lankan synchronised swimming team of which the applicant was a member was the subject of several articles published in Sri Lanka, there is nothing in the documentary evidence before the Tribunal which indicates that, at the time of application in December 2013, the applicant’s accomplishments in the sport had received any particular international media or other recognition. Specifically, the Tribunal observes that there is little in the evidence to indicate that the applicant was regarded as “at the very top of her field” or that her skills as a synchronised swimmer had been assessed at the international level as exceptional or outstanding.  Although the President of the VSSI said her achievements would be internationally recognised as exceptional and outstanding, other material before the Tribunal does not support this claim.

3. Consequently, in assessing whether the applicant has an internationally recognised record of exceptional and outstanding achievement at the time of application, the Tribunal has given greater weight to the evidence indicating that neither she nor the Sri Lankan synchronised swimming team has been ranked or achieved an international profile in this sport.

4. Having carefully considered all the applicant’s claims in this regard, the Tribunal is not satisfied, on the material before it, that the applicant had, at the time of application in December 2013, an internationally recognised record of exceptional and outstanding achievement as a swimmer in the sport of synchronised swimming.

   Record as a coach

5. There is little in the evidence before the Tribunal that, at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in the field of synchronised swimming as a coach.

6. The Tribunal notes that, at the time of application, December 2013, the applicant was not then the Head Coach of the PLC team. She was assisting the Head Coach, a former Olympian (Erika Ballantine).

7. The Tribunal has had regard to the representative’s argument that it should apply the principles in Bretag’s case in the applicant’s favour to find that she had a record of exceptional achievement in synchronised swimming at the time of application based on her subsequent achievements. The subsequent achievements relied upon relate to her coaching activities at PLC. For the reasons below, the Tribunal is not satisfied that the applicant’s post-application achievements as a synchronised swimming coach point to the existence of an internationally recognised record of exceptional and outstanding achievement in December 2013.

8. At the hearing she acknowledged that the coaching she had undertaken in Sri Lanka was seasonal because she was also studying abroad for most of that period. The letter of support from the President of the Otter Aquatic Club acknowledges her assistance in building up the sport in Sri Lanka but there is nothing in the supporting evidence which demonstrates that her work in this area was either internationally recognised or that she had outstanding or exceptional achievements in this role. Reliance was placed on the success of Prateeti, a student at PLC and a member of the national squad, as evidence of the applicant’s internationally recognised record of exceptional and outstanding coaching skills in synchronised swimming. In this context the Tribunal further notes that the various clippings provided regarding Prateeti indicate that she was a high achiever in this field prior to the applicant commencing to coach her. For example, the extract from the 2015 publication of  ‘Indian Link’ states that “she has been regularly participating in national level competitions since 2007” and that she had represented Australia in the 2010 Oceania Championships and in the New Zealand championships in 2011. The article also refers to her current coaches being the applicant and Erika Leal-Ramirez . In her oral evidence the Head of PLC Aquatic acknowledged that Prateeti’s success was also attributable to the joint effort of the two coaches.

9. Therefore, the Tribunal finds that the applicant’s most significant post-application achievement in synchronised swimming coaching was to become Head Coach of the sport at PLC and participate in training swimmers for selection for the national team. The Tribunal notes that she has worked with an internationally-recognised coach in this regard (Leslie Sproule) but, notwithstanding the evidence of the high regard in which she is held locally, and her achievements in having more PLC swimmers participate and selected nationally, there is little before the Tribunal to demonstrate this work has achieved any level of personal international recognition for the applicant as exceptional or outstanding in the field of synchronised swimming or coaching. While there was much evidence about her future potential in this regard, the Tribunal considers it would be inappropriate to speculate what success the applicant might achieve. The focus of paragraph 858.212(2)(a) is upon the extent to which the applicant’s achievements have received international recognition as excellent and outstanding at the time of application, rather than her potential to achieve in her chosen sport at the international level at some uncertain future point in time. On this basis, the Tribunal, is not satisfied that the claims made in this regard are supported by the evidence provided.

10. The Tribunal therefore does not accept, on the basis of the material before it that, even having regard to the principles set out in Bretag’s case, the applicant’s achievements as a coach of synchronised swimming  were internationally recognised at the time of application as exceptional and outstanding.

    CONCLUSION

11. The central question before the Tribunal is whether, at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in sport. The fact of international competition, of itself, does not necessarily translate to an internationally recognised record of exceptional and outstanding achievement. As noted above, applying the ordinary meaning of the words, the criterion requires demonstrated excellence in the relevant field that is internationally recognised as “prominent, striking, conspicuous” and “extraordinarily good”. The guidelines, from which the Tribunal sees no reason to depart, require that an applicant should be at the very top of her field and demonstrate extraordinary and remarkable abilities that have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.

12. The Tribunal accepts that in 2005-6 the Sri Lankan synchronised swimming team was placed at two international events. This was remarkable because it was the first time it had done so. Significantly, these events took place in 2005 and 2006, approximately eight years prior to the lodgement of the applicant’s visa application on 18 December 2013. On the evidence before the Tribunal, these achievements do not appear to have been accompanied by any corresponding international recognition of the applicant’s record as a synchronised swimmer by the relevant ‘governing’ bodies at the international level. In addition there is little in the evidence that demonstrates she had an internationally recognised profile or ranking as a synchronised swimmer or coach. The Tribunal further observes that, notwithstanding the significant local coverage, there appears to be no reporting or recognition of the applicant’s accomplishments as a synchronised swimmer at the international level.

13. Therefore, having carefully considered the applicant’s achievements, the Tribunal finds the evidence that the applicant had an internationally recognised record of exceptional and outstanding achievement in sport at the time of application to be quite limited. This is so even having regard to the principles set out in Bretag’s case.

14. Consequently, having considered the claims and evidence as a whole, both on an individual and cumulative basis, on balance, the Tribunal is not satisfied that the applicant has demonstrated that she has a record of achievement in synchronised swimming, either as a coach or swimmer, that is internationally recognised as exceptional or outstanding within the ordinary meaning of those words. It follows that the Tribunal is not satisfied that, at the time of application,  the applicant had an “internationally recognised record of exceptional and outstanding achievement” in the field of synchronised swimming as required by paragraph 858.212(2)(a).

15. Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 858.212(2)(a) and subclause 858.212(2) as a whole.

16. Given its findings in respect of subclauses 858.212(2) and (4) the applicant does not meet the requirements of subclause 858.212(1) and clause 858.212.

    CONCLUSION

17. The applicant therefore does not satisfy the criteria for the grant of a Subclass 858 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

    Mary-Ann Cooper
    Member