1417058 (Migration)

[2016] AATA 3029

1417058 (Migration) [2016] AATA 3029 (15 January 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT:  Mr Sukhwant Singh

MRT CASE NUMBER:  1417058

DIBP REFERENCE(S):  CLF2014/87691

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:15 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 15 January 2016 at 3:22pm

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 30 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 20 June 2014. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(a) or (d).

3.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.

4.The applicant appeared before the Tribunal on 21 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Kuldip Bassi, the President of United Wrestling Club Inc., the applicant’s nominator.

5.The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6.The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8.The issue in the present case is whether the visa applicant meets the requirement of cl.858.212.

9.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.

10.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.

11.The delegate’s decision, a copy of which was provided with the review application, records that the delegate was not satisfied that the applicant had demonstrated he had an internationally recognised record of exceptional and outstanding achievement in wrestling, his area of sport. The delegate noted that the applicant had noteworthy results however they were predominantly limited to achievements in the Punjab region and he had not competed against the best wrestlers in India, been selected for a national team or qualified individually in any international competition. While the delegate accepted that the two competitions in Australia in which the applicant  achieved success would have attracted Australia’s best athletes, he did not consider these achievements as reflective of an athlete with a recognised record of exceptional and outstanding achievement over a sustained period. It was noted that there was no evidence that the applicant was in a national team or had participated in any prestigious events. It was further observed that his most recent achievements prior to Australia had been 4 years earlier. In addition, the delegate considered it  reasonable to have expected that he would have competed as an individual or as part of national squads in some of the sport’s major events, such as those sponsored by the international governing body for the sport, United World Wrestling, or in the Olympic Games, World Championships and the like. On this basis the delegate was not satisfied he met cl.858.212(2)(a). His claims were further considered against cl.858.212(2)(d) and the delegate found that it was not met as his offer of employment was not associated with the sport of wrestling. Consequently the visa was refused.

12.At the hearing the Tribunal asked the applicant about his achievements in wrestling. He said his grandfather was a wrestler and he commenced participating in competitions in around 2006. He said he participated in the Tarantaran District Wrestling Championship in India in 2006 where he was placed first. He said in 2009 he participated in another competition held by the Wrestling Federation of India representing Punjab in the Freestyle 85kg weight category but was injured and could not proceed. A certificate of participation was provided which confirmed his participation. As confirmed by further certificates provided, he also said he placed first in the 2010 Punjab Wrestling Association 42^nd Senior Punjab Wrestling Championship, in Freestyle in the 120kg weight class, and First in Freestyle in the 96 kg weight class in the 30^th Junior Boys and 4^th Girls Junior and Sub Junior Punjab Wrestling Championships 2010. The Tribunal asked him about his further progress in this regard in the years prior to his coming to Australia. He responded that he was selected a couple of times but the system in India is such that unless you had contacts it is difficult to advance, that he was given ‘lame excuses’ which prevented him from progressing further. He claimed that he was to compete in the 2012 national competition in India but he was prevented from doing so because he was told he was late; however he denied this was the case. He said he came to Australia in 2013, having been sponsored by Mr. Kuldip Singh Bassi of the Victorian United Wrestling Club Inc. He said that he had been recommended by a friend and Mr. Bassi had seen him in India and sponsored him to come to Australia.  In terms of competition success since his arrival, in 2014 he said he had won a gold medal at the National Australian Championships where he competed against approximately 16 wrestlers, including an Iranian. He also won a silver medal in the Australia Cup, competing against approximately 20 other Australian wrestlers. He claimed that his national level competition in India and Australia was internationally recognised but acknowledged that he had not competed at an international level. He claimed that he is known in India and Australia. When asked what made his record exceptional and/or outstanding, he said it was because of his convincing wins.

13.The Tribunal asked how he would contribute to the Australian community and he responded that the Australia system is fair and that his dream was to participate in the Olympics after which he could return to coach at the club. The Tribunal also inquired about his employment prospects in wrestling and he said that the Club had said it would continue to support and assist him in preparing for the Commonwealth Games and the Olympics.

14.The applicant’s nominator/ sponsor, Mr. Bassi, President of the United Wrestling Club Inc. (the Club),  then gave evidence confirming that he was referred to the applicant by a colleague at work and, having seen him in videos and photographs, was impressed and decided that the club should sponsor him. He said the Club was one of about 9 wrestling clubs in Melbourne and was affiliated through the State body, Wrestling Victoria, to the peak national body, Wrestling Australia Inc. He said members of the club compete locally, nationally and internationally. He said that the national competitions are the National Championships, Australia Cup and the Canberra Cup, and it is those competitions from which Australia’s international competitors are drawn. In terms of international competition, he said Australians competed in the Canada Cup, the Oceania Games and the Commonwealth Games. The Tribunal asked if any of the applicant’s achievements were internationally recognised. He responded that whoever won a national championship would be regarded as of an international standard. He also said that at the time the applicant had won the national championships in India, in 2010, India had been in the international top 10 of countries for wrestling. In this context he also claimed that the person the applicant had beaten at the Australian national championships had gone on to win a gold medal at the Asian Games which, he claimed, demonstrated that the applicant was of an international standard. He said the fact that the applicant had demonstrated he was capable of beating someone who had won a gold medal at the Asian Games demonstrated that his record was exceptional and outstanding.

15.When asked how the applicant could contribute to the Australia community, he said he believed that he would easily go up to the next levels of his sport and become an elite athlete who will contribute by helping to build the sport in Australia and training other athletes. In this context the Tribunal asked if the applicant would have difficulty in finding employment in Australia in the area of wrestling. He responded that he would be supported by the Club. He also said that a deal was close that would enable the introduction of wrestling into schools and that the applicant would be able to assist that program. The Tribunal noted the correspondence on file from Mr. Bassi, as director of HKB Constructions, that he would employ the applicant once he has permanent residency. Following the hearing the applicant provided correspondence from the proprietor of In2Fitness Healthclub indicating, among other things, that he would be hiring the applicant as a wrestling coach if his application was successful.

16.The applicant’s representative made submissions in writing and at the hearing. He contended that the applicant had been prominent in his area of wrestling for the past 8 years and had achieved high rankings of 4 Gold and 1 Silver medal, including a gold medal at the National Australian Championships and silver medal at the Australia Cup in his weight category. In addition he claimed that he had assisted the Australian wrestling team in preparation for the Glasgow Games which, it was submitted, demonstrated that the applicant has the talent to represent Australia in the future at Commonwealth and Olympic events. Given his young age it was also claimed that he has unlimited potential as evidenced by his achievements to date, and that the benefits he can bring to Australian wrestling cannot be underestimated.

17.In addressing the Department’s guidelines (paragraph 6.3 and 6.5), the representative further submitted that the applicant’s achievements should be regarded as exceptional and outstanding if they attract national acclaim provided that the field is practised in other countries and would attract similar acclaim in those countries. He noted that wrestling is internationally recognised and the fact of the applicant’s high rating in India in 2006 and 2010, and that he was Australian national champion in his division, supported the contention that he meets the relevant policy provisions, given that wrestling is an internationally recognised sport. The submission also relied on the high international standing of India in the sport as adding weight to the claims made.

18.The representative also noted that the sponsor had successfully sponsored other persons in the past with similar achievements to this applicant.

19.In his closing submissions at the hearing he further elaborated. He contended that, on the basis of Departmental policy, the applicant could be regarded and exceptional and outstanding if recognised at the top of his field in one country. On this basis the applicant, in winning a national championship, was at the top of his field. Similarly, in relation to the Guidelines at paragraph 6.5, he contended that the Gold medal the applicant had achieved at the national championships in India, which at the time had dominated the in wrestling at the Commonwealth Games and the Olympics, demonstrated  recognition at an international level because it would be recognised in other countries in which the sport is practised.

20.Following the hearing the applicant forwarded the following documents:

·     Correspondence from a health club in which the proprietor states that the applicant had been offered employment as a wrestling coach with the gym. He also provides a reference for the applicant, noting that “he is a very committed athlete who has great knowledge and technique in wrestling” and supports the grant of his visa application.

·     Correspondence from the secretary of Wrestling Australia confirming the applicant’s first place in the April 2014 Australian national championships in the 98kg weight division of Senior Male Greco Roman wrestling. A chart was also attached of the results from the May 2014 Australia Cup of Wrestling held at Victoria University in which the applicant appears to have placed second in the 97 kg Senior Freestyle competition and the 98kg Senior Greco Roman competition. 

·     Correspondence dated 26 May 2015 from the Head Coach at Wrestling Australia in which he writes to support the applicant’s application for permanent residence stating that he has been improving in every competition, that he trains hard and is naturally gifted and talented.

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

1. 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).  

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]Ibid.

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 an exceptional record of 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 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” (Tribunal emphasis). 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 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 such a record (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

   …

1. 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.

2. 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 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 accordingly taken into account the individual circumstances of the applicant.

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

   The applicant’s record

3. 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 noteworthy success in his sport of wrestling but it was limited to the Punjab district of India and to two more recent competitions in Australia. The delegate did not accept that it was sufficient to demonstrate that he had an internationally recognised record of exceptional and outstanding achievement in the sport of wrestling.

4. In his submissions, as summarised above, the applicant’s representative argued, on the basis of Departmental policy, that he should be regarded as having an internationally recognised record of exceptional and outstanding achievement in wrestling on the basis that this sport is undertaken and recognised in a number of countries including Australia, and his achievements would be similarly recognised in relation to international and Australian standards for wrestling. (Policy 6.5). Further, he contended, that the high international standing of India in the sport of wrestling, also means that his achievements would be recognised as exceptional and outstanding in any country where wrestling is practised.

5. The documentation provided indicates that at the date of application the applicant had received the following awards :

   ·Certificate of participation in the 1st Tarantran District Wrestling Championship in 2006 indicating that the applicant placed First. (The Tribunal notes that details on the certificate appear incomplete. The word “First” is underlined however neither the school nor the division/style is completed.)

   ·Participation certificate from the Wrestling Federation of India for the 28^th Sub Junior (Cadet) Boys Free style, Greco-Roman Style and 12^th Girls National Wrestling Championship in April 2009 indicating that the applicant participated in the Freestyle 85 kg weight category.

   ·Participation certificate from the Punjab Wrestling Association for the 30^th Junior Boys and 4^th Girls Junior and Sub Junior Punjab Wrestling Championships 2010 indicating the applicant had placed first in the Freestyle 96kg weight class.

   ·Merit certificate from the Punjab Wrestling Association for applicant for achieving First in the 120kg weight class at 42^nd Senior Punjab Wrestling Championship in August 2010.

   ·First place in the 98 kg division of the Senior Male Greco Roman wrestling at Australian National Wrestling Championships in April 2014.

   ·Second place in the 98 kg division of the Senior Male Greco Roman wrestling event and the 97 kg Freestyle event at the Australia Cup in May 2014.

6. In his oral evidence the applicant claimed that his achievements should be regarded as outstanding and exceptional because his wins were “convincing”. There is little in the evidence that supports this claim. The oral and written references provided highly commend the applicant’s contribution to wrestling and the contribution he would make to Australian wrestling. The Tribunal notes however 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. There are several factors that undermine the weight the Tribunal can give to the applicant’s references (from his nominator, the proprietor of In2Fitness and the Head Coach of Wrestling Australia). While they refer to the applicant’s achievements, in the main they emphasise his youth and potential and the value of, and need for, his skills. They do not refer to an established international reputation or recognised profile of outstanding and excellent achievement within the sport.  

7. In particular, the Tribunal notes that in Mr. Bassi’s written reference, supplied to the Department, he states in part, in relation to the applicant, that, “although his background in India may not indicate a high level of competition, it would be relevant to note that in India, it’s who you know that counts and Suhkwant coming from a family with limited resources he couldn’t exactly spend his time pursuing a career in wrestling, especially knowing that he would be held back at every major point which could lead to a name and fame.” On the face of it, this comment tends to acknowledge that the applicant did not achieve any measure of recognition or fame as a result of his achievements in India. On the contrary, it indicates that he was thwarted in this respect. The applicant made a similar claim at the hearing when responding to the Tribunal’s queries regarding his progress between 2010 and 2013. As noted above (paragraph 12) he maintained that the system in India was such that there were always ‘lame excuses’ for his exclusion from further participation. This claim was repeated in the oral evidence of Mr. Bassi who said the applicant had suffered from a ‘lack of connections’ in India and did not get enough opportunities.

8. In this context, the Tribunal notes that the focus of its inquiry is on his record of achievement at the time the application was lodged. That is, it must consider the applicant’s record as it stands, and cannot speculate on what his record of achievement may have been without the obstacles he has encountered. Further, 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 his sport at the time of his application. The issue is not the fairness of the country’s selection process but whether the particular individual who is applying for the visa has the relevantly recognised record. That recognition may be detrimentally affected by the lack of opportunity afforded to an otherwise talented competitor but ultimately, in the absence of evidence otherwise, this is not a particularly relevant consideration in determining whether, as a matter of fact, the applicant has an internationally recognised record of exceptional and outstanding achievement at the time of application.

9. On this basis, while the Tribunal accepts that the applicant’s referees held (and hold) him in high regard as a wrestler, and consider he has demonstrated excellent skills in the sport and has high potential, given the limited nature of the relevant comment in their references regarding his accomplishments, the Tribunal gives this evidence overall less weight in its consideration of the specific issues before it under cl.858.212(2)(a).

10. As the Tribunal understands the evidence and submissions, it is claimed that the applicant, by virtue of his participation in the Indian national championships in particular, has the relevantly recognised record. The claim was made that he was Indian national champion however it is unclear in respect of which competition this claim is made. The Tribunal acknowledges that he participated in a Junior boys competition sponsored by the Wrestling Federation of India (WFI) in 2009 however the certificate indicates he was not placed in his event (paragraph 32). Other certificates show that he was placed first in 2010 in two Punjab Wrestling Association competitions however, notwithstanding the Association’s affiliation with the WFI, these appear to be local/district competitions, not national championships. Even accepting that India was an internationally prominent country in the field of wrestling, there is little in the evidence which indicates that the applicant’s achievements have received any particular recognition by virtue of his success in that country. There is nothing in the documentary evidence before the Tribunal which demonstrates that, at the time of application in June 2014, the applicant’s accomplishments in the sport had received any international media or other recognition. For example, no reports in local or international newspapers or any associated publicity have been cited or provided which indicate that the applicant has an internationally (or nationally) recognised reputation. On the evidence before the Tribunal, the nominator came to know of the applicant through a mutual acquaintance and after seeing some videos of his participation decided to sponsor him. That is, it was not the applicant’s international reputation that precipitated the contact between the Australian nominator and the applicant. The claim was also made that the applicant had beaten a competitor who went on to win a gold medal in the Asian Games, however no evidence was provided which supported this claim. While the Tribunal accepts that the applicant was building his reputation and may have had some local and national recognition by virtue of his achievements in wrestling in the Punjab, and had started to develop a reputation in Australia, there is little in the objective evidence that demonstrates any of these achievements have translated to international recognition of a record of exceptional and outstanding achievement at the time of application. In summary, the Tribunal concludes that the contentions that the applicant’s national level participation is or was recognised internationally are not borne out by the evidence.

11. 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).

12. The Tribunal notes there are many age groups, styles and weight divisions in international wrestling and that, at an international level, countries and individual competitors are ranked. The Tribunal accepts that the applicant may have been rated at or near to the top of his field in India in his particular age/weight grade, and has come first in one competition in a particular division and style of wrestling in Australia. It is, however, uncontroversial that he is not, and was not at the time of application, or at the time of his achievements, a world ranked competitor. While not determinative, given the existence of an international ranking system in wrestling, the Tribunal considers it relevant that the applicant does not and has not appeared on it, either as an individual or as part of a national team. Further there is no evidence or claim that he competed in his national team or as an individual at any international events or events such as those sponsored or recognised by the peak international body, United World Wrestling. The Tribunal has had regard to the applicant’s success at the Australia Cup and National Australian Championships, however it notes that neither of these events appeared in the United World Wrestling 2014 calendar of events and they do not appear to have any particular international status other than, on the evidence provided, as the focus for the selection of wrestlers to represent Australia internationally.

13. Overall 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.

14. Similarly, while the Tribunal accepts that the applicant has talent and promise, the evidence does not support a finding that he is or was very eminent and in the ‘top echelons’ of wrestling or that his achievements have or would be acclaimed as exceptional and outstanding in any country in which the field is practised. Having competed in two countries in which the sport is practised does not, by itself, establish that the applicant has an internationally recognised record of excellent and outstanding achievement. While his nominator, Mr Bassi maintained the applicant has an international record of achievement because he has performed and succeeded in different countries, the Tribunal notes that it is not an international record of achievement (or record of international achievement) that the legislation requires, but an internationally recognised record of exceptional and outstanding achievement. That is, it is the record of the particular level of achievement that must be recognised internationally. 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.

15. Even if the Tribunal accepted the claims made regarding the discriminatory factors disabling the applicant from progressing further in the sport in India, as a matter of fact, as discussed above, international competition and rankings are an indicator of an individual’s standing in the sport. Seen in this context, the Tribunal considers that the lack of any international ranking, or evidence of other international recognition of the applicant individually or as part of a national team, undermines the claim that he has an internationally recognised record of exceptional and outstanding achievement in the sport. 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.

16. Overall, even applying the principles in Zhang v Minister for Immigration and Multicultural Affairs & Anor[7] 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 is recognised internationally as exceptional and outstanding.

    [7] [2007] FMCA 664

    CONCLUSION

17. The applicant’s representative also submitted that previous visa applications made by applicants with a similar background to the applicant had been granted and, as the Tribunal understood the submission, that the present Tribunal should follow that approach in relation to this applicant and the requirements of s.858.212(2)(a). 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[8] (although that case concerned regard to previous Tribunal decisions), 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.[9]

    [8] [2010] FMCA 219 at [31]

    [9]     See section 353 of the Act

18. 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 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.

19. 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). It follows that the Tribunal is not satisfied that the applicant meets the requirements of paragraph 858.212(2) as a whole.

1. 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, therefore, clause 858.212.

2. 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

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

   Mary-Ann Cooper
   Member