Ahangama Baduge (Migration)

[2018] AATA 3878

Ahangama Baduge (Migration) [2018] AATA 3878 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tharanga Lakshitha Ahangama Baduge
Mrs Purnima Sadhamali Piris Millaniyage
Master Nithika Lehan Ahangama Baduge
Master Thinuga Liyan Ahangama Baduge

CASE NUMBER:  1724874

DIBP REFERENCE(S):  BCC2016/1312601

MEMBER:Amanda Mendes Da Costa

DATE:3 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for  Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:

·cl.858.212 of Schedule 2 to the Regulations.

Statement made on 03 September 2018 at 1:56pm

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement as a cricketer – exceptional record of achievement – continued prominence in the field of cricket – Shane Warne test – experience at a national and international level – obtaining employment – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 858.212

CASES

Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 25 September 2017 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 first named applicant (the applicant) applied for the visa on 30 March 2016. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 858.212(2)(b) of Schedule 2 of the Regulations (the Regulations).

3. The applicants appeared before the Tribunal on 24 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lachlan Storey, the Secretary of the Ferntree Gully Footballers Cricket Club.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).

   Subclause (2) sets out the following requirements:

   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 approval form 1000.

   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.        

7. The applicant has not made any claims in relation to cl.858.212(4).

8. The Tribunal notes that the applicant must meet all of the criteria in cl.858.212(2).

9. Clause 858.212(2)(a) requires the applicant has an internationally recognised record of outstanding achievement in a profession; a sport; the arts; or academia and research.

10. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a cricketer.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(ii) as belonging to a sport for the purposes of cl.858.212(2)(a).

11. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Migration Regulations 1994 (the Regulations).

12. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

13. 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.’  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.’

14. The Tribunal notes that 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. Notably in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293 at [20], 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 cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity.  The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an ‘internationally recognised record of exceptional and outstanding achievement’.Therefore Gaffar’s case has limited application in the current context.  The Tribunal acknowledges, however, that while the applicant need not be a ‘national living treasure’, 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.

15. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, as apposite. The Tribunal notes the comments of Kieffel J at [49]-[50]:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary.  But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

16. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

17. 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 Department of Immigration (the Department) guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement (PAM – Sch-2 Visa 858 – Distinguished Talent):

    What does ‘exceptional’ mean?

    For 858.212 (2) (a), applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in the field.

    ‘Internationally recognised’ in this context means that a person’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.

    ‘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 ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has 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 a newspaper and magazine articles testing to achievements.

    The policy guidelines in the 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 would be not be recognised at an international level would not be regarded as exceptional and outstanding.

    It is expected that an applicant’s achievements have 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 is international standing. In determining the international standing of the applicant, officers should consider:

    ·     the international standing of the country, with the applicant’s achievements were realised, in respect of that particular field.

    ·     the standing of the achievement in relation to Australian standards and new line 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 outstanding achievement if the:

    ·     field is undertaken and recognised in a number of countries including Australia and new line.

    ·     achievement would be similarly recognised in relation to international and Australian standards for that field.

18. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.  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 the policy is inconsistent with the regulations, the Tribunal is required to depart from it.  The Tribunal has taken into account the individual circumstances of the applicant.

19. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

    Documentation provided to the Tribunal

20. The Tribunal notes that it has been provided with documentation attesting to the applicant’s continued prominence in the field of cricket, for the following:

    ·Lachlan Storey, Secretary of the Ferntree Gully Footballers Cricket Club, dated 13 August 2018.

    ·Ferntree Gully & District Cricket Association, dated 14 May 2018.

    ·Saxon Sports Croydon, dated 14 August 2018.

    ·Stan Nell, former coach of the Sri Lanka A team, dated 6 August 2018.

    ·Victorian Sunday Cricket Association, dated 16 July 2018.

    ·Lion Sports Cricket Club, dated 6 August 2018.

    ·Victorian Country Cricket League Inc., dated 8 August 2018.

    ·Prabath Nissanka, level 3 High Performance Coach and former assistant coach for Sri Lanka Cricket.

    ·Nuwan Kulasekara, current Sri Lankan national team cricket player.

21. This documentation is in addition to that provided to the Department.  The Tribunal accepts that the authors of the above letters are reputable persons, occupying significant positions in the field of cricket.  The contents of this documentation may be summarised as follows in relation to the applicant who:

    ·has made an important contribution to the improved performance of the Ferntree Gully Footballers Cricket Club First Eleven team in winning the 2017/2018 season premiership and moving into the top division of the competition.

    ·has been a well-respected and successful player/coach in the four seasons he has been a member of the Ferntree Gully Footballers Cricket Club.

    ·has shown great talent as a coach and is a valuable addition to both the local and Australian cricket community.

    ·since playing cricket in Australia has been identified as an outstanding player, a very mature and prominent performer and a person with the ability of nurturing and developing young cricketers.

22. The Tribunal has further considered a Cricket Australia National Coaching Accreditation Scheme, Introduction to Cricket Online Course certificate for the applicant, dated 8 July 2018 and the written submissions of the applicant’s representative, dated 17 August 2018.

23. In her decision the delegate acknowledged the applicant’s longstanding cricket career in Sri Lanka and accepted that the applicant held an internationally recognised record of exceptional and outstanding achievement during the height of his career; however, since his last participation for the Sri Lankan Cricket A team in 2013 his participation in the sport has been at a level not considered competitive enough to demonstrate current prominence in the field. 

24. Submissions made to the Tribunal by the applicant’s representative may be summarised as follows:

    ·The applicant’s career leading up to the time of the visa application commenced in 1999 when he began playing first class cricket in Sri Lanka.

    ·In 2003/2004 and 2011/2012 the applicant was selected for the Sri Lankan national team tours of South Africa.  He was thereafter selected for the Sri Lanka A national team on a number of occasions and played in international tours with that team.

    ·The applicant played 111 first-class matches in Sri Lanka and 99 games with the Sri Lanka A team.  He scored 1556 runs for the Sri Lanka A team and also played 27 first-class T20 matches. 

    ·The applicant was offered a contract as a player with the Sri Lankan national team for six consecutive years. His last match with the Sri Lanka A team was in April 2013.  He continued to play first class domestic cricket until 2015. 

25. During the applicant’s oral evidence, he confirmed the submissions, statements and information provided to the Tribunal regarding his career leading up to the time of application.  A search of the internet for the applicant also brings back a number of results, from multiple credible sources regarding his career as a national and international cricket player and his achievements in the sport of cricket.  Accordingly, the Tribunal is satisfied that cl.858.212(2)(a)(ii) is met.

26. The Tribunal also heard oral evidence from Mr Lachlan Storey who is the Secretary of the Ferntree Gully Footballers Cricket Club.  He has been a member of the club’s committee of management for the past 10 years.  He was involved in recruiting the applicant as a player/coach for the club.

27. Mr Storey told the Tribunal that the applicant had become an integral member of the Ferntree Gully Footballers Cricket Club in the past five years.  He was an exceptional player, and made a vital contribution to the First Eleven team winning the grand final in the 2017/2018 season.  Mr Storey said that the applicant’s international reputation and his outstanding performances for the club had ensured that he was extremely well-known and popular, not just within the club but also the other clubs playing in the association.  Mr Storey said that the large numbers of spectators (approximately 1000) for this year’s grand final was largely due to the presence of the applicant in the club’s team

28. Mr Storey explained that when the applicant came to the club, it fielded no junior teams.  The applicant had been instrumental in building the juniors program within the club which now fields five junior teams.  In addition, the applicant conducted a Milo coaching program each week, attended by 10-20 children, five to eight years of age.  Whereas the club had previously struggled to recruit junior players, the club now had a thriving juniors program which in the future would ensure sufficient senior players.

29. The applicant was described by Mr Storey as a skilled and experienced coach who was extremely popular with both junior and senior players.  Mr Storey told the Tribunal that it was extremely unusual but fortunate for a clubs such as his to have a coach like the applicant, who had extensive experience in playing cricket at an international level and had received first class coaching in that role. 

30. In addition to his role as a player/coach the applicant also attended all club events and participated fully in the local cricket community.

31. The applicant’s representative referred the Tribunal to the case of Henry Dolphin [2004] MRTA 7537, in which a visa applicant who was playing cricket at a district level and achieving strong results. Whilst the Tribunal accepted that the applicant was not playing at the highest level in cricket in Victoria, it found that he was playing in a well-regarded competition and was an important and well-known player in that competition.  On that basis the Tribunal found the applicant to.be still prominent in that field.

32. The Tribunal was further referred to the recent decision of Vandort (Migration) [2018] AATA 1538 (9 April 2018) (Vandort’s case) in which the applicant was also a Sri Lankan cricket player and the delegate refused the application on the grounds that the applicant was not still prominent in the field.  The member in Vandort’s case made the following observation:

    19. During the hearing the representative posited that the test to determine prominence is not the ‘Shane Warne test’; being that even individuals not familiar with cricket must know the name and identify and associate the individual with the sport, as they would with the mention of Shane Warne’s name for instance. But rather, the test is that the applicant is recognised as prominent by those within the field and for cricket would be; officials, other players, peak bodies/associations, media, fans and so forth.  The Tribunal agrees that the ‘Shane Warne test’ is not the correct method to measure prominence.

    20. In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ‘stands out’ in his field and is ‘important’ and ‘well known’ by others within his sport.

1. The applicant’s representative submitted that although not binding on the Tribunal, the decision in Vandort’s case was apposite to the applicant in this review and the approach taken by the Member in that case should be applied to the applicant’s circumstances.  It was further submitted that the numerous references provided by cricket clubs, cricket organisations and prominent persons in the cricket community attest to the fact that the applicant ‘stands out’ and is ‘important’ within the sport.  Although he may not be famous as far as the public is concerned, he has prominence in the field of cricket due to his experience at a national and international level, his continued high performance as a cricket player at district level and his role as a coach.  The Tribunal accepts these submissions.

2. The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used.  The Macquarie Dictionary defines the word as meaning ‘important’; ‘leading’; ‘well-known’.

3. The Tribunal is satisfied from all of the evidence before it (both documentary and oral) that at the time of application, the applicant was still prominent in the field of cricket.  Whilst the Tribunal acknowledges that at the time of application, he was no longer playing cricket at national or international level, he remained well-known as a cricketer and occupied an important position as a player coach.  The Tribunal is further satisfied that the applicant was well recognised as prominent by other cricket players, officials, peak bodies/associations, media and fans.  Accordingly the Tribunal finds that cl.858.212(2)(b) is met.

4. Clause 858.212(2)(c) requires that the applicant would be an asset to the community.  Since his arrival in Australia the applicant has been involved in playing and coaching cricket, particular to junior players.  The Tribunal heard evidence that he has been involved in the cricket communities associated with the clubs of which he has been a member.  The applicant gave evidence about his role as a mentor to younger players who come to him for guidance and assistance.  The Tribunal also considers that he acts as a ‘role model’ to these younger players who aspire to futures as professional players.

5. The Tribunal further accepts that the applicant has made a significant contribution to the growth and development of the Ferntree Gully Footballers Cricket Club during the last five years and the win by the First Eleven team of the premiership in the 2017/2018 season and its move into the First Division.  The applicant has also dedicated a considerable amount of time to improving player standards and the participation of junior players in the club.

6. The Tribunal acknowledges that improving the participation of young Australians in sporting activity is of benefit, not only to them but the wide Australian community.  Accordingly the Tribunal is satisfied that cl.858.212(2)(c) was at the time of application.

7. Clause 858.212(2)(d) requires that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia in the area.  The applicant is currently employed on a full-time basis in a pharmaceutical company as a tablet coating operator.  He commenced this employment in January 2018 and was previously employed for approximately one and a half years as a machine operator. During this period he has also occupied a paid position with Ferntree Gully Footballers Cricket Club as a player/coach.  In 2013/2014 he was engaged by Lyndale Cricket Club in a similar paid role. 

8. The Tribunal notes that the Ferntree Gully Footballers Cricket Club has recently entered into a partnership with Saxon Sports and in the 2018 Winter season, the applicant has received additional payments for carnival match coaching in addition to his coaching within the club.  The Tribunal accepts that the applicant’s payments (particularly as a coach) have the potential to continue to increase with experience and his continued performances as a player, and there is no reason to suspect that his role as player/coach are unlikely to continue into the future. 

9. The Tribunal is satisfied that the evidence shows that at the time of application, the applicant would have had not difficulty in obtaining employment or becoming established independently in Australia in the area of cricket.  The Tribunal finds that cl.858.212(2)(d) does not require that such employment is full-time.  Accordingly, the Tribunal is satisfied that cl.858.212(2)(d) is met. 

10. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement.  A completed form 1000 signed by Davenell Whatmore, an Australian citizen, accompanied the application.  Mr Whatmore is a former Australian test cricketer and has also coached national and international premier league teams.  The Tribunal is satisfied that given his own achievements he has a national reputation in the field of cricket.  Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.

11. The Tribunal is satisfied that given the applicant’s age (36 years), at the time of application, the provisions of cl.858.212(2)(f) do not apply to him. 

12. As the applicant meets all of the applicable requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

13. In relation to the secondary visa applicants, their entitlement to a visa is initially dependent on whether the applicant is successful in obtaining a Subclass 858 visa, and then on whether they meet the additional criteria for Subclass 858 visas.

14. Given these findings, the appropriate course is to remit the secondary applicants’ applications for visas to the Department to consider the remaining criteria for Subclass 858 visas.  If the secondary applicants are found to meet the remaining criteria, then they are entitled to the grant of Subclass 858 visas.

    DECISION

15. The Tribunal remits the applications for  Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the applicant meets the following criteria:

    ·cl.858.212 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member