1419596 (Migration)

[2015] AATA 3311

1419596 (Migration) [2015] AATA 3311 (6 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashley Mark Denniss

CASE NUMBER:  1419596

DIBP REFERENCE(S):  CLF2014/111651

MEMBER:Fraser Syme

DATE:6 August 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 August 2015 at 3:24pm

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 26 November 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 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

3. The visa applicant applied for the visa on 13 August 2014. He provided a form 1000 recording the nomination of Mr Shane Dove (his state schoolboys coach and a national schoolboys selector) regarding the applicant’s record of achievement as a footballer.

4. The delegate refused to grant the visa on the basis that applicant did not meet the requirements of cl.858.212(a) which is set out in more detail below.

5. The applicant appeared before the Tribunal on 29 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, whom the Tribunal referred to as Mr Denniss Snr and the current schoolboys state representative coach of the applicant, Mr Klaass – who is the Queensland football coach. The applicant’s fiancé attended the hearing as a support person. 

6. The applicant was represented in relation to the review by two registered migration agents. The first migration agent prepared the review application. The second registered migration agent provided written submissions to the Tribunal prior to the hearing and attended the hearing in person. The Tribunal has had regard to her submissions, attaching a bundle of documents, which are set out relevantly in more detail below.

7. The applicant made multiple requests for the Tribunal to postpone the hearing. Initially the then newly appointed second migration agent requested a postponement to allow her time to prepare a submission. As that request was made more than four weeks before the scheduled hearing date, the Tribunal considered the migration agent had sufficient time prior to prepare any submissions and therefore declined to postpone the hearing.  The second request was from the applicant. He informed the Tribunal of his relationship with his fiancé and the expected birth of their first child a few days after the scheduled hearing date. He was concerned the effect a negative decision may have on his relationship and requested the Tribunal postpone the hearing pending an outcome on an offshore partner visa application. The Tribunal again declined to postpone the hearing for the reasons given as there were a few days between the scheduled hearing date and the expected delivery date of the applicant’s child. The other reason pre-supposed the Tribunal’s decision. In the circumstances, the Tribunal again considered it reasonable to continue with the hearing as scheduled. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an internationally recognised record of exceptional and outstanding achievement as a footballer, and whether he would have no difficulty obtaining employment or in becoming established independently in Australia as a footballer.

10. These requirements for the distinguished talent visa are set out in cl.858.212, which states:

    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

11. The evidence before the Tribunal does not suggest and the applicant has not claimed to have provided specialised assistance to the Australian Government in matters of security. He thus must meet the requirements of cl.858.212(2) to satisfy cl.858.212.

12. The Tribunal explained that cl.858.212(2)(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(2)(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 a footballer.

13. At the hearing, the Tribunal noted the applicant’s record as a schoolboy footballer in the UK as set out in the evidence to the department and repeated in the submissions of the second migration agent. It acknowledged his personal and team accomplishments and commented that the league he played in was not the highest level in the UK and the international tournament he attended was a very wide based event with 1000s of competitors. That he was player of the tournament was very impressive, but given the number of teams competing, it did not appear to be an elite event. The applicant and Mr Denniss Snr explained the applicant had chosen the leagues in which he played and schoolboy football because they considered that the best pathway to a future career as a professional footballer. He added that the applicant’s club team in the UK, Luton Town was well regarded as a pathway to premier league clubs.

14. The Tribunal discussed too the applicant’s record as a schoolboy footballer in Australia. It acknowledged his selection to the Australian national schoolboy team was an impressive achievement. He was one of only a select number to achieve that representative honour. He told the Tribunal he had several trials with the Brisbane Roar A-league football club prior to turning 19. No other A-League clubs had offered him a trial. He and Mr Denniss Snr explained again the applicant chose to focus on schoolboy football and representative honours as the better pathway to achieve a professional career as a footballer, rather than to sign with an A-League academy the professional status of which would preclude him from earning representative honours. Mr Klaass explained the system for schoolboy representative honours in Queensland differed to that of other states, as Queensland Academy of Sport athletes were excluded from participating in the interstate tournament. He explained that the national schoolboy team competes in only one international tournament each year. For the applicant to be chosen to represent Australia he would have to be identified at his local, regional, state and national levels. Mr Klaass considered the applicant had some of the best potential as a footballer in his position that he had coached. He supposed the applicant choosing not to join any A-League affiliated youth squad may have been a reason why he had been overlooked to date by any senior club.

15. The Tribunal discussed with the applicant too his senior career as a footballer in Australia. The Tribunal noted the submission of the migration agent that the applicant’s club team, Capalaba Football Club was in the second tier of football in Australia. He said he considered it was. He then agreed with the Tribunal regarding information from Queensland Football website that the National Premier Queensland League State League was above the Brisbane Premier League, but added that the quality of football was the same. Mr Klaass confirmed the State League was a higher tier that the Brisbane League, but that some of the stronger clubs in Brisbane elected not to compete in the State League for financial reasons related to travelling intrastate. The applicant and Mr Klaass both said Brisbane League teams compete in the nationwide FFA Cup.

16. The applicant told the Tribunal he was paid $200 for a win and nothing for a loss by the Capalaba Football Club. As noted above, since turning 19, he had not trialled with any A-League clubs. He had discussions about playing in Cambodia and was offered a contract to play in Costa Rica, but ended those discussions upon learning of his fiancé’s pregnancy and wanting to remain with her rather than play overseas. When asked why he had not played senior football at a higher level, he said he was waiting for the opportunity for a scout to identify him.  Some footballers do not commence professional careers until they are 23, he is still only 21.

17. Throughout the hearing and in the submissions of the migration agent, there is reference to the applicant as a football coach and his plans for coaching in future. He told the Tribunal he had coached U12 and U14 teams at Capalaba Football Club with some success as a volunteer coach. He had a paid coaching job at St Josephs’ Gregory Terrace school coaching primary school aged teams. He has a job offer as a fulltime coach for a school based coaching business – but that is temporarily on hold while recovering from an ankle fracture (which he incurred a few days before the hearing). Although he did hold a Blue Card (issued by Child Protection Agency), the applicant did not hold any qualifications as a coach.  Mr Klaass said in his view, the applicant had considerable aptitude to be a successful football coach. The Tribunal expressed the view that the applicant was claiming to have a distinguished talent as a footballer, not a coach. The Tribunal accepted there can be some connection between the two, as some former footballers have become successful coaches, while other coaches had no prior career as a footballer and many footballers never coach. Mr Klaass noted coaching clinics and academies were significant business opportunities for higher profiled footballers.

18. The migration agent submitted the applicant was disadvantaged by the timing of his visa application because he was in between a successful schoolboy career and a potential senior career. She said the news reports of him she provided demonstrated his talent. The Tribunal noted the reports were from online blogs and not mainstream media. She submitted the applicant would be able to support himself through coaching and offered to obtain further evidence from the applicant’s potential employer as to what his pay rate will be once he recovers from the leg fracture. The Tribunal repeated its comments regarding the applicant seeking to be recognised as having a distinguished talent as a footballer, not a coach but it would have regard to any evidence it received prior to making a decision. She then raised matters related to the applicant’s offshore application for a partner visa and the pending birth of his first child. The Tribunal commented as compassionate as those matters were, they were not something it could take into account in assessing whether the applicant satisfies the requirements of c.858.212.

19. The Tribunal discussed with the applicant having regard to his record of achievement, particularly in schoolboy football and most notably his being selected in the Australian schoolboys team demonstrated he had considerable talent as a footballer. His schoolboy achievements and the evidence of Mr Denniss Snr and Mr Klaass indicated the applicant had the potential for a career as a professional footballer, but potential was not the same as a demonstrated record of achievement. However, his record of achievement in the view of the Tribunal as a senior footballer was neither outstanding nor exceptional.

20. The Tribunal acknowledges that the applicant achieved some success as a schoolboy footballer in the UK and built on that success in Australia such that he was selected to the Australian national football team in 2011 which toured to the UK in early 2012.  However, since that significant highlight, his career as a senior footballer in Australia over the past two years  demonstrates has not progressed beyond playing in a third tier competition where he is paid $200 per win and had no further trials with top tier clubs.  

21. The Tribunal is mindful of the evidence of the applicant’s Mr Denniss Snr and of Mr Klaass regarding the applicant’s talent and potential. As well as his dedication to his sport and his determination to succeed in a career as a professional footballer. The criteria for a distinguished talent visa requires a record of exceptional and outstanding achievement. In the Tribunal’s view, that requires an assessment of his past achievements and is not an assessment focused on his future potential achievements. Having regard to his school boy career in the UK and Australia, in particular, his selection to the national schoolboy team and having regard to his senior career in Australia, and in particular that he is currently playing in a third tier league and has had no trials with A-League clubs since becoming a senior player, the Tribunal is not satisfied that the applicant has internationally recognised record of exceptional and outstanding achievement in the area of sport as a footballer.

22. Given the findings above, the applicant does not meet the requirements of cl.858.212(2)(a). It is therefore unnecessary for the Tribunal to make findings regarding cl.858.212(2)(d).

23. As he does not meet the requirements of cl.858.212(2) or (4), the applicant does not satisfy cl.858.212 for the grant of the visa.

    Request for referral to the Minister

24. The migration agent indicated the applicant was considering to apply to the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. She did not submit that the Tribunal should refer the applicant’s case to the Department for consideration by the Minister. The Tribunal notes that the applicant can still make a request directly to the Minister for exercise of his public interest powers without the referral of the Tribunal.

    DECISION

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

    Fraser Syme
    Member