1502780 (Migration)

[2016] AATA 3619

1502780 (Migration) [2016] AATA 3619 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Min Soo Kim
Ms Kyung Ok Shin
Mr Mi-ru Kim
Miss Da-ye Kim

CASE NUMBER:  1502780

DIBP REFERENCE(S):  BCC2014/3250660

MEMBER:Brook Hely

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:

·cl.858.212(2)(a) of Schedule 2 to the Regulations

Statement made on 23 March 2016 at 2:28pm

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 5 February 2015 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas 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 applicants applied for the visa on 28 November 2014. The delegate refused to grant the visa because the delegate was not satisfied that the first named applicant (the applicant) had at the time of application an internationally recognised record of exceptional and outstanding achievement in the field of sport (specifically, taekwondo). As there was nothing to indicate that the applicant had provided specialised assistance to the Australian Government in matters of security, the delegate found that the applicant did not meet the requirements of cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicants appeared before the Tribunal on 18 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Daniel Trenton (Nominator - President Sports Taekwondo Australia). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

7. The issue in dispute in this review is whether the visa applicant meets the requirement of cl.858.212. This clause relevantly provides:

   (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.

   …

   (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.

8. In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary. For example, in Gaffar v MIMIA [2000] FCA 293 French J made the following comments in relation to the term ‘record of exceptional achievement’ in the context of an application for a subclass 805 skilled visa :

   It is true enough, that mere competence and industry in an occupation will not amount to ‘a record of exceptional achievement’.  Such a record plainly requires something out of the ordinary”.  [Paragraph 19]

   …

   The requirement of an exceptional standard of achievement in an occupation, profession or activity is to be applied across a variety of occupations, professions and activities.  Some will require far greater levels of knowledge and skill than others in order to rise above the ordinary and the merely competent.  And while the applicant for such a visa is required to be “an asset to the Australian community” it is not required that he or she be a “national living treasure”.  The Tribunal in this case, in my opinion, has taken an unduly restrictive approach to the criterion of “exceptional record of achievement”.  That criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary.  On that basis there was evidence before the Tribunal from Mr Gaffar’s former employers and from some of their customers which might have satisfied that requirement.  That evidence was never really assessed against the requirement properly construed.  I do not suggest, of course, that that evidence must lead to the conclusion that Mr Gaffar answers the criterion for a skilled visa in the relevant subclass.  That is a matter for the Tribunal.  But in my opinion the Tribunal erred in its interpretation and application of the law in this particular case.  The application will be allowed, the Tribunal’s decision set aside and the matter remitted to the Tribunal to be decided according to law.” [paragraph 20]

9. The Tribunal is of the view that these judicial comments are applicable to cl.858.212(2)(a), although is mindful that the wording of cl.858.212(2)(a) is different from that considered by the Court in the case of Gaffar.

10. 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. A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA & Anor [2007] FMCA 664 at [36][37]. The Court in Zhang said,

    In essence, the Tribunal found that the applicant’s work did not amount to a ‘record’ because there was not enough of it.  This was the wrong approach as the regulation does not qualify the word ‘record’ in the way impliedly understood by the Tribunal, and the policy requirement cannot affect the proper construction of the regulation.  Neither the terms of the regulation nor the ordinary meaning of the word ‘record’ indicates that it should be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time.

    The New Shorter Oxford English Dictionary defines ‘record’, relevantly, as:

    the most important facts in the life or career of a (public) person; the sum of a person’s acts or achievements.

    The revised third edition of the Macquarie Dictionary relevantly describes it as:

    a report, list, or aggregate of actions or achievements, as in the case of a person, an organisation, a horse, a ship etc.: to have a good record.

    That is to say, a record is an aggregation or a list, not a large aggregation or a long list.

    Findings and reasons

11. In the present case, the applicant seeks to establish an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically taekwondo. The decision record of the delegate outlines the applicant’s various achievements in taekwondo. Most notably, he achieved a gold medal at the following events:

    a.2000 World Universiade Games

    b.2001 Mexico Open

    c.2001 USA Open

    d.2002 Korean Open

    e.2002 French Open

12. He was also awarded a bronze medal at the 2002 USA Open, as well as a variety of medals and titles won in Korean events. The Tribunal also accepts that he completed his secondary and tertiary studies on sporting scholarships at Korea’s most prestigious sports institutions.

13. Whilst acknowledging the applicant’s various achievements, the delegate expressed concern that according to current competition grading by the World Taekwondo Federation (WTF), the highest grading for any of the above events was 2 out of a possible 20. Additionally, with respect to the applicant’s gold medal at the 2000 World Universiade Games, the delegate expressed concern that eligibility restrictions for this competition meant that only university students within a limited age group were able to compete.

14. The Tribunal notes that it questioned the applicant, as well as Mr Trenton, for over 2 ½ hours in relation to the applicant’s professional career in taekwondo as well as the relative hierarchy of various taekwondo events around the period of 2000 – 2002 (which was the height of the applicant’s professional career). The Tribunal found the applicant and Mr Trenton to be credible witnesses. The Tribunal also accepts that Mr Trenton is a highly respected figure in the sport of taekwondo, having won a silver medal at the 2000 Sydney Olympics and been appointed the Olympic Head Coach for the 2008 Olympics. Their evidence was further supported by a detailed letter of support from Hyung Jin Park, a previous recipient of a subclass 858 (Distinguished Talent) visa for his achievements in the sport of taekwondo, as well as In Dong Kim, the Assistant Olympic Coach 2004 and Head Coach of K-Tigers Taekwondo Centre (a recognised training centre for the National Taekwondo Olympic Program).

15. The Tribunal accepts the applicant’s record of achievements set out above, including in respect of certain competitions for which the applicant no longer possesses written documentation (such as the 2002 Korean Open). When questioned about the current WTF competition grading, the Tribunal accepts the explanation given at the hearing that this system of grading did not exist back in 2000 – 2002; nor was there any official system of ranking taekwondo athletes at that time. The Tribunal also accepts that a number of the events that appear within the current rankings guide did not exist at that time, such as the Grand Prix Final and Series, which are currently graded 8 and 4 respectively. The Tribunal also accepts that the Open events for which the applicant has won medals (listed above) are each grouped as WTF G2 tournaments, giving them a grading of 2 under the current system.

16. The Tribunal acknowledges that the applicant has never competed in an event higher than a grade 2 level. However, the Tribunal accepts the applicant’s explanation that participation in these various events were at the dictation of their coach and that internal politics played a significant part in decisions regarding which athletes would compete in which competition. The Tribunal also accepts that there were only very limited opportunities to represent Korea internationally, due to the limited number of international competition that existed at the time and the highly competitive standard for selection.

17. The Tribunal found the evidence of Mr Trenton particularly compelling with respect to his own preparation for the 2000 Sydney Olympics, in which he ultimately won the silver medal. The Tribunal accepts his evidence that in the lead up to the Olympics he and his coach spent time preparing in Korea. The Tribunal accepts that Korea is the undisputed homeland of taekwondo and that Korean athletes have long dominated the sport. The Tribunal accepts that, as part of his preparation for the Olympics, Mr Trenton studied the techniques of the top five leading Korean athletes whom he and his coach had identified as being the most likely representatives of Korea to be sent to the Olympics. The Tribunal accepts that the applicant was one of these leading five athletes whom Mr Trenton studied, both by observing him directly and reviewing videotapes of his events. In combination with the other positive evidence before it, the Tribunal accepts from this that the applicant was widely regarded within the taekwondo sporting community as ranking among the top five taekwondo athletes in Korea at that time.

18. The Tribunal acknowledges that the applicant ultimately was not selected to represent Korea at the 2000 Olympics. However, the Tribunal accepts the evidence given at the hearing that each nation was only able to send two athletes to compete in taekwondo for the 2000 Olympics. Further, the two athletes selected were required to compete in different weight levels. As such, for the purposes of being selected, there was only one spot available for the applicant’s weight level. The Tribunal also accepts the evidence and submissions presented to the effect that, due to Korea dominating the sport, any one of Korea’s top five athletes would have been likely to win the gold medal at the 2000 Olympics. Specifically, the Tribunal accepts the oral evidence given by Mr Trenton to the effect that the top five Korean athletes would have been considered the top five (or at least among the top seven) athletes worldwide. The Tribunal also accepts that the applicant would have been counted among this top five at the time.

19. The Tribunal also notes that it’s finding above is supported by the fact that the applicant won gold medals at several G2 Open events, including at the Korean Open which was considered a particularly prestigious event due to the high standard and level of participation by Korean athletes. The Tribunal also accepts that the applicant’s esteemed reputation was further enhanced by winning the gold medal at the 2000 World Universiade Games, which was widely regarded as a key indicator of who was likely to represent Korea at the 2000 Olympics.

20. Viewing the above matters together, the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of sport (taekwondo). He therefore meets the requirements of cl.858.212(2)(a).

21. Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the grant of subclass 858 visas.

    DECISION

22. The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:

    · cl.858.212(2)(a) of Schedule 2 to the Regulations

    Brook Hely
    Member