1416639 (Migration)

[2015] AATA 3048

1416639 (Migration) [2015] AATA 3048 (6 July 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT:  Mr Jinho Choi

MRT CASE NUMBER:  1416639

DIBP REFERENCE(S):  CLF2013/185969

TRIBUNAL MEMBER:  Glen Cranwell

DATE:6 July 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 06 July 2015 at 11:08am

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 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).

2. The visa applicant applied for the visa on 7 August 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.858.212(d).

3. The applicant appeared before the Tribunal on 29 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review by his 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.

   RELEVANT LAW

6. The Distinguished Talent Class BX visas are permanent visas for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided specialised assistance to the Australian Government in matters of security.

7. At the time the visa application was lodged, the Distinguished Talent (Residence) Class BX visa contained only one subclass: Subclass 858 (Distinguished Talent) visa: Item 1113 of Schedule 1 to the Regulations.

8. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. The issue in dispute in this review is whether the 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.

   [(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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. At the hearing, the applicant confirmed that he was setting to satisfy cl.858.212 on the basis of his internationally recognised record of exceptional and outstanding achievement in the sport of body building.

10. The applicant provided the Tribunal with the following documents:

    ·A letter from Me 24 hour Fitness, stating that the applicant has been contracted to the gym as a personal trainer since November 2011.  A “Rental Agreement” also provided shows that the applicant pays a weekly rental in exchange for being able to provide personal training services in the gym.

    ·A letter from Motions Gym, stating that the applicant has been “attached” to the gym as a personal trainer since May 2014.  At the hearing, the applicant explained that he had not been required to pay rent to the gym since he won the title of Asian champion.

    ·A letter from Hansol Accounting, stating that the applicant’s income “is solely and wholly derived from his business activities in personal fitness and traning as a sole trader”.

    ·The applicant’s income tax return for financial years 2012, 2013 and 2014, showing taxable incomes of $9,934, $27,158 and $56,436 respectively.

    ·Certificates III and IV in Fitness.

    ·ANZSCO description for Fitness Instructors (4521-11), indicating that the required skill level was a certificate II or III.

    ·A letter from Simons Meat Trading, stating that the business has sponsored the applicant with meat products since January 2013.

    ·A letter from Sokhan Fruit and Vegies, stating that the business will sponsor the applicant with free fruit and vegetables for a period of 3 years.

    ·A contract with Kingkong Factor, in which the company provides the applicant with supplements in exchange for photographic endorsements.

11. At the hearing, the applicant stated that he was currently in discussions with a Korean butcher for a sponsorship agreement in which he would be provided with chicken breasts and beef every 2 weeks.

12. The applicant confirmed that his taxable income was derived entirely from personal training income from his activities at Me 24 hour Fitness and Motions Gym.

13. The Tribunal explained that cl.858.212(a) required the applicant to have “an internationally recognised record of exceptional and outstanding achievement in one of the following areas”, which included “a sport”.  He was then required in cl.858.212(d) to have “no difficulty in obtaining employment, or in becoming established independently, in Australia in the area”, and the Tribunal might regard “the area” as referring to the sport identified in paragraph (a). In this case the applicant’s sport is body building.

14. The Tribunal put to the applicant that his monetary income was derived entirely from his business as a personal trainer.  While complementary, he did not need to be a body builder to be a personal trainer.  His qualifications to be a personal trainer were based on his certificates III and IV in Fitness.  The Tribunal therefore might not regard his income as having been derived from his sport, which might cause it to doubt whether he meets cl.858.212(d).

15. The applicant stated that as a body building competitor, he can gain sponsorships.  Once he qualifies for the WFF Pro Division, he will be eligible for sponsorships.

16. The Tribunal put to the applicant that his existing sponsorships, for meats, fruit and vegetables, and supplements might not be enough to conclude that he would have no difficulty establishing himself independently in Australia.  In addition to food, he would also need a source of monetary income from his sport.

17. The applicant stated that he also trains body builders.  He added that the more championships he wins as a body builder, the more he can increase his fees as a personal trainer.

18. The Tribunal asked the applicant about the about his personal training clientele.  The applicant stated that they were mainly general clients, but during body building season (March to June, and September to November) he also has body building clients.

19. The representative submitted that body building competitions are only held once or twice a year, and the applicant had never met a body builder who survives on sponsorships alone.

    Assessment

20. Clause 858.212(1) requires the Tribunal to be satisfied that the applicant meets the requirements of cl.858.212(2) or (4). The applicant has not claimed and there is no independent evidence to support a finding that the applicant has an internationally recognised record of exceptional and outstanding achievement in the areas of a profession, a sport or academia and research. Accordingly, the Tribunal needs to be satisfied that at the time of application the applicant has an internationally recognised record of exceptional and outstanding achievement, in this case, in the area of a sport.  Further to this that he is still prominent in the area, that he would be an asset to the Australian community, and that he would have no difficulty in obtaining employment or becoming established independently in Australia in his area: cl.858.212(2).

21. The Tribunal finds that the applicant was lodged on 4 August 2013.

22. The Tribunal acknowledges that the applicant is a successful body builder.  However, for the reasons which follow, the Tribunal does not accept that the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area of a sport. 

23. The Department’s Procedures Advice Manual 3 (PAM3) offers the following guidance on cl.858.212(2)(d):

    9      Employability

    9.1      Assessing this criterion

    To satisfy clause 858.212(2)(d), the applicant must demonstrate why they would have no difficulty in obtaining employment, or how they expect to support themselves, in Australia within their area of achievement. Officers can consider a combination of the following when assessing this criterion:

    •      employment contracts or offers of employment related to the area of achievement. This may be evidenced by current and future employment opportunities from employers, employment/recruitment agencies, or organisations involved with the area of achievement at the national level.

    •      evidence of self employment or opportunities to establish a viable business within the area of achievement.

    •      evidence of sponsorships, scholarships, grants or other payments intended to support the applicant while they are engaged in activities related to the area of achievement.

    Income from employment which is not related to the area of achievement cannot satisfy clause 858.212(2)(d), even if this only comprises part of the overall income for the applicant.

24. It is trite to state that the Tribunal is not bound by the Department’s policy.  However, the Tribunal considers that the policy set out above is consistent with cl.858.212(2)(d), noting that the area of achievement in this case is the sport of body building.  The Tribunal considers that it is desirable to apply the policy in the interests of consistency in decision making.

25. Consistent with the Department’s policy, the Tribunal considers that the income from the applicant’s personal training business cannot count towards cl.858.212(2)(d).  As set out above, the applicant’s qualifications to be a personal trainer arise out of his certificates III and IV in Fitness.  The applicant stated that his participation in the sport of body building allows him to charge higher rates as a personal trainer, but the Tribunal does not regard the applicant’s financial income as a personal trainer as being derived from the area of the sport of body building.  While he may have some body builders as personal training clients, the applicant’s evidence was that most of his clientele were general clients.  Further, while the applicant has derived sponsorships for food and supplements from his body building, this is not sufficient for the Tribunal to conclude that he would have no difficulty establishing himself independently in Australia.  In addition to food, he would also need a source of monetary income from his sport of body building.

26. This leads the Tribunal to conclude that, ex post facto, the applicant has had difficulty obtaining employment, or in becoming established independently, in Australia in a sport.  The Tribunal also considers that the representative’s submission that no body builders survive on sponsorships alone supports the conclusion.  The Tribunal therefore finds that, at the time of application, the applicant would have difficulty in obtaining employment, or in becoming established independently, in Australia in the sport of body building.

27. The Tribunal finds that the applicant does not meet the requirements of cl.858.212(2)(d).

28. The Tribunal has also considered whether the applicant meets the requirements of cl.858.212(4). There is no evidence before the Tribunal that the Minister responsible for an intelligence or security agency or the Director-General of Security provided an advice that the applicant had provided specialised assistance to the Australian government in matters of security. The Tribunal finds that the applicant does not meet the requirements of cl.858.212(4) and therefore does not satisfy cl.858.212.

    DECISION

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

    Glen Cranwell
    Member