1500111 (Migration)

[2015] AATA 3711

1500111 (Migration) [2015] AATA 3711 (23 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nestor Javier Fonseca Guzman
Ms Tatiana Calderon
Mr Esteban Paul Nestor Fonseca

CASE NUMBER:  1500111

DIBP REFERENCE(S):  BCC2014/2464750 BCC2014/2464881

MEMBER:Christopher Smolicz

DATE:23 November 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) Class BX visas.

Statement made on 23 November 2015 at 9:43am

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 December 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 26 September 2014. The delegate refused to grant the visa on the basis that the first named applicant did not meet cl.858.212(2)(a).

3. The applicants appeared before the Tribunal on 8 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chris Colley and Mr Eldon Abrahams.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Distinguished Talent Class BX 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 (cl. 858.212(2)) or have provided specialised assistance to the Australian Government in matters of security (cl. 858.212(4)). There is no suggestion in this case that the applicant's claim falls in this last category.

7. The issue in the present case is whether the first named applicant (hereafter the applicant) has an internationally recognised record of exceptional and outstanding achievement as a player in the sport of futsal. 

8. Futsal is a format of five-a-side football that is played in more than 60 countries with professional leagues. There are currently two governing bodies: Association Mundial de Fútbol de Salón (AMF) and Fédération Internationale de Football Association (FIFA). AMF and FIFA are responsible for maintaining and regulating the official rules of their respective versions of futsal and staging world cup championships. According to the FIFA men’s ranking as of September 2015 the top three world teams are: Spain, Brazil and Russia. Colombia is ranked number eleven and Australia is ranked number 24.[1]

   [1] >

   The Australian National Futsal Team represents Australia in men's international futsal. The team is controlled by the governing body for association football in Australia, Football Federation Australia (FFA), which is currently a member of the Asian Football Confederation (AFC) and the regional ASEAN Football Federation (AFF) since leaving the Oceania Football Confederation (OFC) in 2006. The team's official nickname is the Futsalroos. Australia is a five-time OFC champion. The team has represented Australia at the FIFA Futsal World Cup tournaments on six occasions.[2]

   [2] >

   The applicant is a 31 year old citizen of Colombia. He first arrived in Australia in January 2009 as the holder of a student visa. Since 2011 the applicant has been enrolled at the University of Notre Dame Perth, Western Australia, studying a Bachelor of Sport and Recreation Management. He is expected to graduate in late 2015. The applicant said that he was able to financially support himself in Australia with the assistance of his father and through undertaking casual work in Australia as a cleaner and working in the aged care sector.

9. Prior to arriving in Australia the applicant was studying Audi Engineering at Pontifical Xavierian University in Colombia. The applicant said that he lost interest in his studies and did not complete his degree and decided to travel to Australia to study sports management and pursue his interest in futsal.

10. The Tribunal was provided with a number of supporting references and the following evidence regarding the applicant’s achievements in futsal at the time he lodged the application in September 2014.

11. The applicant commenced playing futsal in 2002 playing at a social level for the Pontifical Xavierian University Futsal Club at the age of 18 years old. At the time, the applicant was studying and playing in the university association league. It was submitted that in 2005 the team was crowned the Champion of the regional-level tournament of Colombian University Association.

12. In 2005 the applicant was invited to trial for the Saeta Bogota Micro Futbal Club, Colombia (Saeta). The applicant said that Saeta had three teams and he spent the first year playing for the second (middle) level team. In 2006 to 2007 he was selected to play for the first (top) level team.

13. The Tribunal questioned the applicant about what he did in the period between 2007 and the time he travelled to Australia (January 2009). The applicant said he was not playing professional futsal at the time because his family was putting pressure on him to complete his studies in Colombia. As a compromise his father agreed to sponsor him to travel to Australia and study sports management.

14. The applicant said that when he arrived in Perth, Western Australia, futsal was a little known sport with a very small following. Coming from Colombia his skills were instantly recognised and in 2010 he was selected to play for the Western Australian Pumas in the Vikings Futsal Nationals held in Sydney.  He also played for the Western Australian Pumas at the Gold Coast Futsal Clubs Nationals where his team were runners up.

15. In 2011 he commenced playing for Muita Calma Futsal Club (MCFC), in the WA State Futsal League (SFL) where he played until 2013.The SFL is made up of eight clubs and he played at the men’s open level.  The applicant’s club has won the WA State Futsal League several times as well as the Football West State Futsal League in 2012.

16. He subsequently played at the National Vikings World Futsal Championships in Malaysia representing his Australian club MCFC. The applicant said that the championships are organised by the Viking’s Futsal club.

17. In 2012 and 2013 the applicant was selected for the WA Pumas SFL5, an all-star selection that participated in the Futsaloz Australian Futsal League Cup (FAFL).

18. In 2013 the applicant was involved in starting up the futsal club (Cambio Cumbre) playing in the SFL. The applicant said the Cambio Cumbre has about 25 players in the first men’s team and 15 players on the women’s team. The applicant plays for Cambio Cumbre and coaches players on his team. The applicant said he was motivated to start up the team so that he could become more influential in the future direction of the sport in Western Australia.

19. The applicant said that in 2015 he was asked to play for Galaxy FC in Queensland. He has however only played two games for Galaxy because of the distance from Western Australia and his study and work commitments. The applicant explained that Galaxy FC plays in the Australian F-League which is the top futsal league in Australia. In 2015 the F-League has a nine team men’s competition and a seven team women’s competition, with teams from NSW, ACT, VIC and QLD.[3] The applicant said that Western Australia is not part of the F-League.

    [3] >

    The Tribunal also notes that the applicant has a completed number of futsal courses and certificates relate to training and coaching.

20. The applicant said that he has not played in the FIFA World Cup or the AMF World Cup Championships level. The applicant said that he has never played for the Columbian national team.

21. The applicant said that the standard of futsal playing in Colombia, with a population of 50 million people, is very high. The applicant said that Saeta is one of the most famous and successful futsal clubs in Columbia and described playing for Saeta as his greatest sporting achievement.

22. The applicant said that if he became an Australian citizen his goal would be to play for the Futsalroos. The Tribunal asked the applicant if he had any supporting letter from Rob Varela, the head coach of the Futsalroos. The applicant said he had not met Mr Varela and did not have any supporting references from the management of the Australian national team and the coach was soon to change.

23. The Tribunal noted that the applicant last played for Saeta in 2007 and was now 31 years old and nearly all the players on the Futsalroos were under 30 years old. The applicant said that despite his age he believed that he still had the skills to play at a high standard required at a national level. By way of example, the applicant said that in the 2015 FAFL Cup he was awarded Most Valuable Player and has played with players who are on the national team.

24. Mr Eldon Abrahams, gave evidence in support of the application at the hearing. Mr Abrahams is the applicant’s Australian nominator for the Distinguished Talent visa. Mr Abrahams has been involved in futsal in Australia for the past 25 years. He is the former president of the WASFL and has represented Australia, Western Australia and also played at International club level in Brazil. He is the part owner and CEO of the WA State Futsal Centre.

25. Mr Abrahams said that he met the applicant soon after he arrived in Australia and was able to recognise his talent and asked him to pay for MCFC. Mr Abrahams said that the applicant impressed him because he was not only a good player but was focusing on his study and able to contribute to the sport at different levels. Mr Abrahams said that in his opinion the applicant would be included in the Futsalroos team if he was an Australian citizen. Mr Abrahams said that he would rank the applicant’s highest sporting achievement is being chosen the MVP in the 2015 FAFL Cup and for his work as a coach and his development of the sport at the junior level.

26. The Tribunal accepts the applicant aspires to play for the Futsalroos and that Mr Abrahams is of the opinion that the applicant would be selected for the Australian national team if he were an Australian citizen. The Tribunal however, finds this evidence speculative and of limited assitance without any supporting evidence from the Australian national team selectors. 

27. Mr Chris Colley, also gave evidence in support of the application. Mr Colley is a Federal Police Officer who has been involved in futsal since 1989. He has represented Queensland and Australia. Since 2007 he has been annually appointed on the FIFA panel for International Futsal referees. As a FIFA referee he has had the opportunity to referee at Asian Football Confederation and FIFA competitions. Mr Colley said that futsal in Australia is not played at the same level as in Colombia and the applicant is an outstanding futsal player who’s sporting ability cannot be replicated in Australia.

    Findings

28. The Tribunal has had regard to the applicant’s evidence, submissions made by the migration agent and the numerous supporting references located on the Department’s and the Tribunal’s files.

29. In determining whether the applicant has an internationally recognised record of exceptional and outstanding achievement, the applicant must demonstrate excellence in the relevant occupation which is out of the ordinary.[4]

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

30. The Tribunal notes that the applicant confirmed he is focussing on his talents as a futsal player.

31. Notably, in 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 acknowledges 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.

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

32. Accordingly, whether or not an applicant’s record of achievement is exceptional and outstanding will be a question of fact to be determined in the individual case.

33. The Tribunal found the applicant to be a credible and forthright witness who did not seek to embellish his claims. The Tribunal accepts the applicant is a respected, skilled and experienced futsal player who is dedicated to the development of futsal in Western Australia both as a player and as coach.

34. The criteria for a distinguished talent visa requires an internationally recognised record of exceptional and outstanding achievement at the time of making the visa application: cl.858.212(2)(a). This requires an assessment of the applicant’s past achievements and reputation at the time the application was made, not his potential to develop a record of exceptional and outstanding achievement looking to the future. 

35. The Tribunal finds that the highlight of the applicant’s sporting career was in 2005 when he was chosen to play for Saeta, which was one of the top teams in Colombia at that time. However the Tribunal notes that the applicant last played for Saeta in 2007. He subsequently ceased playing professional futsal and focussed on his studies before traveling to Australia on a student visa. Although he has represented WA and played in the Vikings National Tournament in Malaysia his playing has mainly been confined to the smaller WASFL since he arrived in Australia. The Tribunal notes that all the players on the national futsal team are from the F-League. Since traveling to Australia he has been enrolled as a full time student studying a Bachelor of Sports Recreation Management and has only been able to play two games in the F- League level due to work and study commitments.

36. The applicant has not played in the FIFA World Cup or the AMF World Cup Championships level. The applicant said that he has never played for the Colombian national team.

37. The Tribunal has considered the applicant’s record of achievement in futsal both in Colombia and in Australia and is not satisfied that the applicant has demonstrated that he has achieved a level of excellence in futsal that is out of the ordinary.

38. The Tribunal does not accept that, at time of application, the applicant has demonstrated an exceptional and outstanding achievement in futsal, and is not satisfied that he is internationally recognised as having such a record.

39. The Tribunal finds the applicant does not meet cl.858.212(2)(a) and must therefore affirm the decision under review.

40. The second and third named applicants must meet the requirements of clause 858.321 at the time of decision.

41. Given the Tribunal’s finding that the first named applicant does not satisfy the primary criteria for a subclass 858 visa, the Tribunal finds that the second and third named applicant do not meet the requirements of clause 858.321.

42. Therefore, the secondary applicants also do not satisfy the criteria for a subclass 858 visa.

43. Given the findings made above, the Tribunal must affirm the decision under review

    DECISION

44. The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) Class BX visas.

    Christopher Smolicz
    Member