1416371 (MIGRATION)
[2016] AATA 3123
•21 JANUARY 2016
1416371 (MIGRATION) [2016] AATA 3123 (21 JANUARY 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Chandanbir Singh
MRT CASE NUMBER: 1416371
DIBP REFERENCE(S): CLF2014/25006
TRIBUNAL MEMBER: Mary-Ann Cooper
DATE:21 January 2016
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 21 January 2016 at 3:33pm
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 16 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).
The Subclass 858 (Distinguished Talent) visa is a permanent visa 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. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations.
The visa applicant applied for the visa on 18 February 2014. The delegate refused to grant the visa on the basis that the applicant was not a person who has a record of exceptional and outstanding achievement, as required by cl.858.212(2)(a) nor was s/he satisfied that he would have no difficulty finding employment as required by cl.858.212(2)(d).
The applicant appeared before the Tribunal on 16 April 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Kuldip Bassi, President and representative of the nominator, United Wrestling Club Incorporated. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented by his migration agent who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in dispute in this review is whether the visa applicant meets the requirement of cl.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.
(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.
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 has provided specialised assistance to the Australian government in matters of security at the time of application. The Tribunal therefore finds that the applicant does not meet the requirements of subclause 858.212(4).
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 wrestling but considered that it was more reflective of an emerging wrestler rather than someone with a sustained record of noteworthy achievements in international events at the highest level. The delegate noted that he had not competed at any recognised international events and that his most significant achievement was winning silver in the 29th Boys Free Style, Greco Roman Style and 13th Girls Sub-Junior (Cadet) National Wrestling Championships, an event sanctioned by the Wrestling Federation of India. It was noted that this was not followed by selection for the national team. The delegate also noted that the applicant had not competed in any high level competition between his achievements in India in 2010 and the silver medal he was awarded in Australian Junior Canberra Cup in 2013. Having regard to the applicant’s claims that his limited opportunities in India were responsible for his failure to progress in the sport, and the acknowledgment by his referee that, given this situation, the applicant decided to concentrate on his studies, the delegate concluded that the applicant’s record was not reflective of someone in the top echelons of their field with extraordinary and remarkable abilities superior to others. It was also found that cl. 858.212(2)(d) was not satisfied on the basis that, even though nominator said it would employ him, no evidence of tenure or terms and conditions of employment was provided. Consequently the application was refused.
The applicant was nominated in connection with his visa application by United Wrestling Club Incorporated which was represented by its President Mr. Bassi . He had provided a letter of support to the delegate, outlining his claims as to the applicant’s outstanding skills and the demand for his abilities in Australia. As President of Wrestling Australia Inc. he also provided correspondence confirming the applicant’s success at two additional competitions in Australia as outlined below.
Prior to the hearing the applicant’s representative provided a submission and documents as listed below (some of which were before the delegate):
· Letters in support from
Ø the Wrestling Federation of India confirming the applicant’s silver medal in his weight category in the 29th Boys Free Style, Greco Roman Style and 13th Girls Sub-Junior (Cadet) National Wrestling Championships in 2010. It also states that he participated in the National Coaching Camp for Cadet Greco Team Style Wrestlers held in the Punjab in 2010 in preparation for the 2010 Cadet Asian Wrestling Championship. It is further stated that ‘his performance was outstanding during the above national Championship’ and ‘he was one of the disciplined wrestler in the Camp (sic). He has enough potential to dominate in the National or International Wrestling events’;
Ø the Punjab Wrestling Association confirming the applicant represented Punjab and won a silver medal in the above 2010 competition and a Gold Medal in the Sub junior Punjab Wrestling Championship in May 2010. It states further that ‘he is an outstanding wrestler’ and ‘he is a superb wrestler and he has enough potential to dominate in national/international events’;
Ø the United Wrestling Club Inc. confirming that he has been competing for the club and ‘has placed in every tournament against some World Level athletes here in the Australia Cup’. It further states that the club will engage him as an assistant coach once he obtains his residency.
Ø Wrestling Victoria which, after listing its other sponsored athletes, refers to the applicant’s lack of competition and international experience by claiming that, ‘even after placing 2nd at the Nationals (with India being in the top 10 of World level Countries), he was unable to get any further due to lack of Political connections and coming from a middle class family. Given the massive hurdle in front of him, he gave precedence to his studies’ and further that ‘when he started competing again, has medalled in every competition he has entered of which he won Gold in the majority of them.’
Ø Wrestling Australia Inc. verifying that the applicant ‘has placed in every tournament competing against some World level athletes’ and has competed in the Australian National Wrestling Championships held in Canberra in April 2014 and won first place in the 80kg weight division. The organisation also wrote confirming that he participated in the 14th Annual Australia Cup in May 2014 and won the gold medal for the 80kg weight division.
· Photographs of the applicant’s medals
· Certificate of participation for the applicant for the 4th Shaheed Bhagat Singh International Wrestling Tournament in Punjab in March 2013.
In the submission provided, in respect of cl.858.212(a), the applicant’s representative noted that the expression ‘exceptional and outstanding achievement’ is not defined and contended that the findings of Kiefel J in Hatcher v Cohn [2000] FCA 1548 were apposite in that a broad, generous and expansive interpretation should be applied to the words. Similarly Gaffar’s case[1] is relied upon as establishing that the applicant need not be unique in his claimed field but does need to satisfy the decision maker that his skills are out of the ordinary. In this context it is submitted that the applicant is proven to be outstanding in his field by virtue of his success in winning various national championships in India and Australia and having been eligible for selection in both Indian and Australian national teams. Other Tribunal decisions are also quoted which indicate that the test of outstanding cannot be raised to ‘an unreasonably high level.’[2]. It is further submitted that the applicant is in the top echelons of his field and has extraordinary and outstanding abilities compared to his cohorts in the field.
[1] Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293 at [20]
[2] 0902373 [2011] MRTA 1079 and 060894348 [2008] MRTA 285
The hearing
At the hearing the applicant confirmed Departmental information that he arrived in Australia on 18 June 2013 as a holder of Subclass 573 visa which is valid until 15 March 2016. Documents and evidence provided also indicate that he commenced study for a Diploma of Information Technology but withdrew from the course in 2013, and, according to his oral evidence, has recently completed a Certificate III in Hospitality.
The application was made on the basis of the applicant’s career and achievements in the sport of wrestling. He claimed in his oral evidence that his father had been an internationally recognised wrestler and he had learned from him. He claimed to have commenced the sport in year 6 and in years 11 and 12 was playing at a district level in the Punjab. He said after completing year 12 he competed in the Punjab state championships and was awarded a gold medal in his class. He claimed he then represented the State at a national level and in 2010 won a further Gold Medal and was ranked 2nd in India. He said he attended the camp in which trials were conducted to determine those persons who would be selected for the Indian national team to compete in the Asian Games in Bangkok but acknowledged he was not selected. He said that he qualified but was not selected because he did not have the right connections or political support. He claimed to have represented India internationally when he competed at the Shaheed Bhagat Singh International Wrestling Tournament in Jalandhar (Punjab) in March 2013. He acknowledged that he was not awarded any medals at that competition and that it was the only international tournament in which he had participated.
The Tribunal asked the applicant about his wrestling experience in Australia. He said he had previously met Mr.Bassi, the President of United Wrestling Inc., his nominator, in India and knew that he was a coach in Australia. He said when he arrived in Australia he went to his club for wrestling practice and represented the club in the Canberra Cup in 2013, for which he won a silver medal. He said he kept practising and next entered the Australian National Championships in 2014 when he won first in his weight range. He said that he was qualified to represent Australia but because of his visa situation he could not presently do so. He said in May 2014 he participated in the Australia Cup against international competitors from NZ, Singapore and South Africa and won a gold medal. The Tribunal asked him if he had an international ranking in wrestling. He claimed that only Olympic participants gained international ranking. When asked how his record was internationally recognised he said that India is in the Top 10 world rankings in the sport and he was ranked second in India so he considered that this did give him international recognition.
Documentation provided to the Tribunal indicates that at the date of application the applicant had received the following awards :
· 2009 – Gold Medal in community wrestling competition in England (Listed in his Resume but no documentary evidence supplied in support).
· Merit certificate from the Punjab Wrestling Association demonstrating that in May 2010 he was awarded First place in the 76kg weight division of the 30th Boys & 3rd Girls Sub Junior Punjab Wrestling Championship, India.
· Diploma from the Wrestling Federation of India for placing 2nd in the 76 kg weight division of Greco Roman wrestling at the 29th Sub Junior Boys Free Style Greco Roman Style and 13th Girls National Wrestling Championship in Uttarakhand, India in May 2010.
· Participation certificate for the applicant in the 4th Shaheed Bhagat Singh International Wrestling Tournament held in Jalandhar in 2013.
· 2nd placing in the 74 kg weight division of the Male Junior competition at 2013 Canberra Cup
After lodgement of the visa application he was awarded
· First place in the 80 kg weight division at the Australian National Wrestling Championship in 2014.
· First place in the 80 kg weight division at the Australia Cup in May 2014.
When asked why he considered he would be an asset to the Australian community, the applicant responded that he will represent Australia internationally, that he knows techniques that others do not know and will be able to coach and teach Australians in those techniques. The Tribunal also asked him about employment and he claimed that he has been promised employment by his nominating club.
The Tribunal then spoke to Mr. Kuldip Bassi, President of the United Wrestling Club Inc., the applicant’s nominator. The Tribunal asked him to explain the national reputation of the Club and he advised that it was a member of Wrestling Victoria. Correspondence from Wrestling Victoria confirms that it is a registered club and member and the only club to organise an annual international tournament. That is, the Australia Cup, which they have held for the last 14 years including a tournament named “Commonwealth Championships’ in 2011. It is further stated that the club is active in the promotion of wrestling and has introduced ‘world level talent’ to train with local athletes. It notes that the President of Wrestling Australia is also the founder of United Wrestling Club (i.e. Mr. Bassi).
In relation to the visa applicant, Mr Bassi said that he had encountered him in India and that, after he had arrived in Australia, the applicant had attended his club. He said he considered him an elite athlete, having won gold medals in the National and Australia Cups and that he is still young and has ‘a long way to go’. In addition he claimed he was ranked second in India in the Juniors competition in the 74kg weight category. When asked if this could be characterised as international recognition, he responded that being ranked no. 2 in India, one of the world’s top 10 countries, meant he was internationally recognised. He said that no. 2 in India is a world-ranking. When asked what was exceptional or outstanding about the applicant’s achievements, he said that fairly soon after his arrival in Australia he had beaten many wrestlers. The Tribunal asked how he would be an asset to the Australian community and he responded that the applicant was very young, capable and talented kid. He claimed that, if he gets citizenship, he will be in the Australian team for the Olympics and will do well.
In relation to his employment prospects, Mr Bassi stated that the Club would employ him and that it had many sponsors. The Tribunal notes that a document on the Department’s file contains correspondence from one of those sponsors in which it undertakes to employ the applicant should he be granted Australian residency. The nature of the employment and its terms and conditions are not disclosed however the Tribunal also notes later correspondence from Mr. Bassi (10 August 2014) advising that the nominating club will retain him as an assistant coach once he has obtained residency.
In conclusion Mr. Bassi said that he was trying to build a strong team and the Australian Sports Commission was assisting but that he needed the applicant to help in taking the sport to schools and the broader community. He noted that other distinguished talent visa applications for similarly placed wrestlers had been granted and he considered that this one should also be granted. He referred the Tribunal to a recent decision in which the visa was granted without a hearing.
Based on the information provided in this regard, the Tribunal followed through this claim and notes that the relevant decision, MRT 1417312, was concerned solely with whether cl.858.212(d) was met. That is, whether the applicant would have difficulty in obtaining employment. No consideration was given in that case to the main concern in this decision, that is, cl.858.212(2)(a). Consequently the Tribunal considers it has little relevance to the issues before it.
In this context the Tribunal notes that the submission of the applicant’s representative also refers to other purportedly similar visa applications which have been granted by the Department. The Tribunal accepts that it is desirable, whenever possible, to achieve consistency in decision-making in terms of applicants who present with similar claims however it also notes that other such decisions are not binding on it. In line with the comments of the court in Pasula v Minister for Immigration and Anor[3], the Tribunal must review the present matter by assessing the facts and evidence before it to determine whether this particular applicant meets the criteria for a subclass 858 visa.[4]
Internationally recognised record of exceptional and outstanding achievement – paragraph 858.212(2)(a):
[3] [2010] FMCA 219 at [31]
[4] See section 353 of the Act
The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in wrestling. 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).
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.
In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to paragraph 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.”[5] 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.”[6]
[5]
[6]
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.[7]
[7] See Zhang v Minister for Immigration and Multicultural Affairs & Anor [2007] FMCA 664
In addition, 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.[8] Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (‘Gaffar’s case’)[9] 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, 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.
[8] Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
[9] [2000] FCA 293 at [20]
The Tribunal has also had regard to the submission that the consideration of the meaning of “exceptional” in Hatcher v Cohn (2004) 139 FCR 425, is apposite. The Tribunal notes the comments at [49]-[50]:
'Exceptional' circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances… The words 'exceptional circumstances' may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.’
In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.
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”. 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 policy guidelines in PAM3 reflect the following view in relation to the requirement of international recognition:
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.
The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[10] Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, 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.
[10] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
As noted above, in order to meet the relevant criterion, the applicant must have had an internationally recognised record of exceptional and outstanding achievement in his field at the time of application.
The applicant’s record
The Tribunal has considered all the material before it, including the letters of support, the applicant’s oral evidence, the oral evidence of Mr Bassi and other documentary evidence provided, including the applicant’s resume and photographs and submissions made on his behalf.
As noted above, the delegate acknowledged the applicant’s success in his early career as a wrestler but considered that an internationally recognised record of exceptional and outstanding achievement would be one where the applicant had a sustained record of noteworthy achievements in international events at the highest level. It notes that his two achievements in India took place within a week of each other and his next achievement was 3 years later. Consequently the delegate determined that there was insufficient evidence to satisfy the requirements of c.858.212(2)(a).
In considering whether an applicant has an internationally recognised record of exceptional and outstanding achievement, Departmental guidelines, as noted above and from which the Tribunal sees no reason to depart, indicate that applicants should be very eminent and in the top echelons of their field and should demonstrate extraordinary and remarkable abilities and be superior to others. They also emphasise the requirement for international recognition and provide that an achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries, including Australia, and would be similarly recognised in relation to Australian and international standards for that field (Tribunal emphasis).
The applicant’s representative submitted, relying on policy, that a person’s talents can be regarded as “exceptional and outstanding” if they attract national acclaim provided that the achievement is in a field practised in other countries and the applicant would attract similar acclaim in those countries. It is further claimed that wrestling is internationally recognised and the fact that the applicant was rated 2nd in India in 2010 and is currently the Australian national champion in his division, clearly supports the fact that he meets the policy provisions given that wrestling is an internationally recognised sport.
While acknowledging that the applicant’s field of wrestling is recognised internationally and in Australia, the Tribunal does not accept that this necessarily translates to a finding that his achievements are recognised in relation to international standards as exceptional and outstanding. Wrestling competition contains many age, weight and style divisions. It is also separated into junior and senior competitions. At the time of application (18 February 2014), the applicant has claimed two successes in India. Both were achieved in 2010 in junior competition. In Australia he had come second in a national championship in Greco Roman in 76 kg weight division, also in junior competition. While commendable, the Tribunal does not consider that competition at this level is equivalent to having an international profile of exceptional and outstanding achievement.
The Tribunal notes that references for the applicant do specifically refer to him as an outstanding wrestler. The Wrestling Federation of India reference states that ‘his performance was outstanding during the above National Championship’ and the Punjab Wrestling Association reference refers to him as ‘an outstanding wrestler of Punjab’. In his oral evidence the president of the applicant’s nominating club claimed he had a reputation as an exceptional and outstanding wrestler. 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 wrestling) to not only be internationally recognised but also to be so recognised as exceptional and outstanding.
In the written reference Mr. Bassi supplied to the Department, he wrote that the applicant has “a very solid resume of achievements in wrestling” and “has not been outclassed or outperformed by any of the men in his weight category.” He notes his 2nd placing in the Canberra Cup in one event and 2nd placing in the Indian National Championships in 2010, the year in which it is stated that India dominated the Commonwealth Games. Given the applicant’s second placings, the statement that the applicant has not been outclassed must be regarded as a conflation of the applicant’s achievements. In the same reference Mr. Bassi writes “we believe with modern training methodologies & more exposure to International competition he could excel into anything.” The Tribunal considers that it is implicit in this reference that, while the applicant is a gifted and talented wrestler, he has yet to excel in the sport.
In addition the Tribunal notes the reference from Wrestling Victoria which also refers to the applicant’s lack of competition or international experience and seeks to explain it as follows:
“Further to some other points regarding Chandabir and his lack of competition or international experience, there is a reason for that and that is that growing up in India even after placing 2nd in the Nationals (with India in the top 10 World Level Countries), he was unable to get any further due to lack of Political connections and coming from a middle class family. Given the massive hurdle in front of him, he gave precedence to his studies, in the hope that he would one day be able to study abroad and compete in an equitable arena…”
The Tribunal considers that such comments, while seeking to demonstrate the applicant’s potential, also serve to underscore his lack of significant achievement in the sport. While sympathetic, the focus of the Tribunal’s inquiry is whether, as a matter of fact, the applicant has an internationally recognised record of exceptional and outstanding achievement in his sport at the time of his application. While it may accept the evidence concerning the reasons for an applicant’s failure to progress, the issue is not the fairness of his treatment or the reason why he has not achieved more success, but whether, as matter of fact, the particular individual who is applying for the visa has the requisite recognition
In this context the Tribunal notes that policy guidelines provide that, 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. That is, an applicant should be at the very top of their field. Information that should be taken into account is stated to include 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
There is little in the evidence to indicate that the applicant was regarded as “at the very top of his field” or that his skills as a wrestler had been assessed at the international level as exceptional and outstanding at the time of application. The reference from the Wrestling Federation of India confirms that the applicant participated in the national coaching camp held in the Punjab in 2010, which was preparation for the Cadet Asian Wrestling Championship in Bangkok later in 2010, however he was not selected. In his oral evidence, Mr. Bassi had claimed that the applicant was internationally ranked by virtue of his second placing in the Indian national championships. While India as a nation may have been internationally ranked there is nothing in the evidence that demonstrates the applicant’s achievements in India translated to an international ranking for applicant. At the time of application the applicant had not competed in any international events sanctioned by the international governing body for the sport, United World Wrestling (UWW), either as an individual or as part of India’s national team, nor is he, or was he, at the time of application internationally ranked as an individual or as part of a national team. Even though his later success at the Australian National Championship may have ordinarily meant he would be selected for international competition, at the time of application, he had not. The evidence indicates that he has not participated in or won any significant international events. The Tribunal notes his participation in the 4th Shaheed Bhagat Singh International Wrestling Tournament in India however this event does not appear on the UWW 2013 events calendar, and therefore it appears to have little international recognition. In any event, the applicant did not place at this tournament and there is no evidence before the Tribunal that any particular international recognition would flow from the applicant’s mere participation.
At the time of application the applicant had come second in a particular weight range/style in a national event and first in a particular weight range/style in a district competition. Both of these events were at junior level competition, as was his second placing in the Junior Canberra Cup, and there is little in the objective evidence before the Tribunal that supports the claim that these achievements received any type of international recognition. Similarly there is little in the evidence before the Tribunal that the applicant has received any international recognition by way of media attention, for example, in international sporting journals or the like. A translated newspaper article from a local Jalandhar newspaper was provided which reported that the applicant had won a silver medal in the Sub Junior National Wrestling Championship, but this is the extent of his objective recognition of his achievements. Even accepting that in 2010 India dominated wrestling, leading the medal Table in that event at the Commonwealth Games, given that the applicant did not compete, the Tribunal considers that it is conflating the applicant’s achievements to claim that this second placement in junior championships in one particular weight category means his achievements can be characterised as internationally recognised as exceptional and outstanding.
While the Tribunal is conscious that “record” need not be a long list, the Tribunal is not convinced, on the basis of the evidence before it, that the applicant was internationally recognised in his field at the time of his visa application as having an exceptional and outstanding record.
While the Tribunal acknowledges that the applicant has submitted letters of support and evidence of his success in India and Australia, and others have commented favourably on his skills and talent, the Tribunal does not consider that this evidence establishes that the applicant himself has an internationally recognised record of exceptional and outstanding achievement as a wrestler. Specifically, the Tribunal observes that there is little in the evidence to indicate that the applicant was regarded as “at the very top of his field” or that his skills as a wrestler had been assessed at the international level as exceptional and outstanding. The Tribunal has attributed weight to Mr Bassi’s evidence, in which he positively stated the applicant does have the required recognition, but on balance, on its own, in absence of other expressions of international recognition of excellent and outstanding achievement in respect of the applicant, the Tribunal considers it is insufficiently persuasive in this regard.
The Tribunal has had regard to the applicant’s success at the Australia Cup and National Australian Championships, however it notes that these achievements were subsequent to the date of his visa application. In this context it has considered whether it should apply the principles in Bretag’s case[11] in the applicant’s favour to find that he had a record of exceptional achievement in wrestling at the time of application based on his subsequent achievements. The subsequent achievements are two first placings in two national events in Australia in 2014 (paragraph 18). Given these two events do not appear to have any particular international standing or recognition other than, on the evidence provided, as the focus for the selection of wrestlers to represent Australia internationally, the Tribunal is not satisfied that the applicant’s post-application achievements as a wrestler point to the existence of an internationally recognised record of exceptional and outstanding achievement in February 2014, the time of application.
[11] Bretag v MILGEA [1991] FCA 582
Therefore, having carefully considered the applicant’s achievements, the Tribunal considers that there is insufficient evidence of a competition record of an international standard, at the time of the visa application, to support the claim that the applicant’s achievements were internationally recognised as exceptional and outstanding.
Consequently, in assessing whether the applicant had 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 he has not been ranked or achieved an international profile in this sport.
Overall, even applying the principles in Zhang v Minister for Immigration and Multicultural Affairs & Anor[12] to the current application for review, while the Tribunal accepts that the applicant has strong capability as a wrestler and has a record of achievement in India and Australia, it does not consider that the documentary or oral evidence is sufficiently detailed to support the claim that, at the time of application, his record of achievements were at a level that was recognised internationally as exceptional and outstanding.
[12] [2007] FMCA 664
CONCLUSION
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. For reasons discussed above, the Tribunal does not consider that the fact of limited success in national competition in two countries, of itself, necessarily translates to an internationally recognised record of exceptional and outstanding achievement. 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”. As also discussed above, the guidelines provide that an applicant should be at the very top of his field and demonstrate extraordinary and remarkable abilities. On the evidence before the Tribunal, the applicant’s achievements in India and Australia do not appear to have been accompanied by any corresponding international recognition, profile or ranking of his record as a wrestler by the relevant ‘governing’ bodies, or others at the international level, as exceptional and outstanding.
Consequently, having carefully 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 he has a record of achievement in wrestling, 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 sport as required by paragraph 858.212(2)(a)(ii). He therefore does not meet the requirements of paragraph 858.212(2) as a whole.
Given the Tribunal’s findings in respect of subclauses 858.212(2) and (4), the applicant does not meet the requirements of subclause 858.212(1) and, therefore, clause 858.212.
It follows that the applicant 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
The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.
Mary-Ann Cooper
Member
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