Argolo (Migration) - [2023] AATA 3455

Argolo (Migration) [2023] AATA 3455 (5 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Alexandre Dourado Argolo
Ms Danielli Silva Braganca
REPRESENTATIVE:  Dr Etienne De Villiers Hugo
CASE NUMBER:  2012107
HOME AFFAIRS REFERENCE(S): BCC2019/5268771 BCC2019/5339057

MEMBER:Antonio Dronjic
DATE:5 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the first named applicant meets the criteria in cl 858.212 of Schedule 2 to the Regulations.

Statement made on 05 October 2023 at 1:53pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – sports strength and conditioning coach – internationally recognised record of exceptional and outstanding achievement – no requirement that record be lengthy – education, accreditation and international work experience with national sport teams – appointment by national sport authority and supporting references – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212(1), (2)(a)(iii)
CASES
Gaffar v MIMA [2000] FCA 293
Prabhakaran v MICMA [2023] FedCFamC2G
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Springs v MICMSMA [2020] FCCA 371
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Zhang v MIMA [2007] FMCA 664
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 July 2020 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 October 2019. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicants applied to the Tribunal on 27 July 2020 for review of the delegate’s decision. The applicants submitted a copy of the primary decision record with the review applications.
On 21 August 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of cl 858.212 of the Regulations.
On 4 September 2023, the applicants submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants based on the material before it, pursuant to s 360(2)(a) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Distinguished Talent (Residence) (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, or have provided specialised assistance to the Australian Government in matters of security.
The applicant has nominated that he is applying for a Distinguished Talent visa based on his achievements in the sport, specifically as a functional movement specialist and strength and conditioning coach. The applicant was nominated by an Australian organisation, the Federation of Australian Futsal Ltd, in a form 1000, signed by Mr Marquez, the President of the Federation of Australian Futsal. In this form, the Federation of Australian Futsal Ltd attests to the applicant meeting the requirements of cl 858.212(2) of Schedule 2 to the Regulations.
The issue in the present case is whether the applicant meets the requirements of cl 858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl 858.212 of Schedule 2 to the Regulations.
The application was refused on the basis that the applicant did not meet the requirements of cl 858.212(2)(a) and therefore cl 858.212. 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.
The applicant has not made any claims in relation to cl 858.212(4).
The applicant’s claim depends on whether he can satisfy cl 858.212(2)(a)(iii) of Schedule 2 to the Regulations. At the outset, the Tribunal notes that this is a time of application criterion. However, In Prabhakaran v MICMA,[1] the Court held that this did not connect grammatically to the terms of cl 858.212 and that the text of the clauses under the subheading did not support any general conclusion that the criteria in that part spoke exclusively to matters which must be satisfied at the time of application. Rather, cl 858.212 allows a decision‑maker to consider events and circumstances that arise between the date of the visa application and the date of the decision.
[1] Prabhakaran v MICMA [2023] FedCFamC2G 357 at [56].
Internationally recognised record of exceptional and outstanding achievement
The Tribunal observes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl 858.212(2)(a) is not defined in the Regulations. However, the Tribunal 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.[2]
[2] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].
‘Achievement’ as it appears in the relevant criterion is capable of denoting a single achievement and also of operating as a mass noun to denote two or more achievements.[3]
[3] Springs v MICMSMA [2020] FCCA 371 at [61].
In addition, the Courts have held that in determining whether the applicant has a ‘record of exceptional and outstanding 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, French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’.[4]
[4] Gaffar v MIMA [2000] FCA 293 at [20].
As a result, 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.
In considering this issue, the Tribunal has had regard to the Department’s Procedures Advice Manual related to the Distinguished Talent visa. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209, Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision‑makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
The applicant holds a Master of Clinical Exercise Physiology from Southern Cross University, Lismore. He holds a current accreditation with the Exercise & Sports Science Australia (ESSA). Some of his internationally recognised records of exceptional and outstanding achievements include:
·     In 2016, the applicant worked as Movement, Strength and Conditioning Coach at Just Football Academy, Sydney;
·     From 2018 to 2019, the applicant worked as the Functional Movement Specialist for Redlands United Football Club, Brisbane;
·     In 2019, the applicant worked as Strength and Conditioning Coach, Solomon Islands National Futsal Team;
·     In 2020, he participated at the Oceania Football Confederation (OFC) Futsal Nations Cup in New Caledonia as a Strength and Conditioning Coach for the Solomon Islands National Futsal Team;
·     Participation at the FIFA Futsal World Cup in Lithuania in 2021 as Sports Scientist for the Solomon Islands National Futsal Team;
·     In 2020, the applicant was appointed, by the Federation of Australia Futsal (FAF), as Head Strength and Conditioning Coach for the Australian National Under 15’s Futsal Team;
·     In 2022, the applicant was appointed by FAF as Head Strength and Conditioning Coach for the team and invited to the 2022 AMF Futsal World Cup for Under 17’s in Santiago de Chile;
·     In October 2023, the applicant was invited to provide technical consultancy for coaches from the Stars of Africa Football Academy in Johannesburg, South Africa;
·     In 2023, the applicant was invited to provide consultancy to the Club Athletico Paranaense (CAP), an A-league football club in Brazil; and
·     In February 2023, the applicant was appointed as the Head Strength and Conditioning Coach for the Australian National Men’s Futsal Team and will represent Australia as part of the coaching staff at the AMF Futsal World Cup being played in Mexico in November 2023.
There is a considerable support within the applicant’s nominated field in Australia and overseas. The Tribunal accepts the evidence of the applicant’s referees who each attest to the applicant’s skills and standing as a respected and leading specialist in his field.
The Tribunal has considered the applicant’s submissions and documentary evidence provided in support of the application, numerous letters of support, the applicant’s qualifications, and his achievements as a functional movement specialist and strength and conditioning coach. Based on the evidence before it, the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement and accordingly meets the requirements of cl 858.212(2)(a).
Is the applicant still prominent in the area?
Given the contemporaneous nature of the applicant’s achievements in satisfaction of cl 858.212(2)(a), and in particular his recent appointment as head strength and conditioning coach for the Australian National Men’s Futsal Team, and invitations to provide consultancy to the Brazilian A-league football club and coaches from the Stars of Africa Football Academy, the Tribunal is satisfied that he has also demonstrated prominence in the area at the time of application and the time of the Tribunal’s decision.
Accordingly, the Tribunal finds that the applicant meets the requirements of cl 858.212(2)(b).
Asset to the Australian community
Clause 858.212(2)(c) requires that the applicant would be an asset to the Australian community.
The Tribunal accepts that futsal is popular sport in many countries including Australia. The applicant is a functional movement specialist and strength and conditioning coach who has specialised in functional movement assessments and movement correction exercises.
In his letter of 17 September 2019, Mr Marquez, the President of the Federation of Australian Futsal stated that the applicant is a great asset to not only the regional area of Northern Rivers where he now lives, but also to the Federation and the development of all futsal and football players across Australia. In his letter, he attested to the applicant’s skills and unique approach to injury prevention, athletic development and rehabilitation.
The applicant owns and operates an exercise physiology clinic in Lismore called Innova Performance. The Tribunal considered a letter submitted by Mr Luke Del Vecchio, as well as a Certificate of Appreciation from Southern Cross University (SCU) and accepts that the applicant’s business Innova Performance has collaborated with SCU by providing voluntary mentorship for both the Bachelor of Sport and Exercise Science and the Master of Clinical Exercise Physiology programs.
The Tribunal is satisfied that the applicant will contribute to regional sports development by providing his expertise not just to professional players but to the wider Australian community.
The Tribunal accepts that the applicant has much to offer the Australian community as a functional movement specialist and strength and conditioning coach. Given the above, the Tribunal finds that the applicant meets the requirements of cl 858.212(2)(c).
Obtaining employment, or becoming established independently, in Australia
Clause 858.212(2)(d) requires the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area.
In addition to his engagements as the head strength and conditioning coach for the Australian National Men’s Futsal Team and as a technical consultant for Football Academy in Johannesburg and Athletico Paranaense football club from Brazil, the applicant provided evidence of operating his own profitable business ‘Innova Performance’ in Lismore. The applicant’s representative inter alia submitted that:
Although his business was unfortunately, adversely impacted by the devastating floods in February 2022 – being submerged under 7.5 metres of water – he has had incredible success building his business back up again. Since June 2021, his clinic has had 1,972 appointments from 238 new clients. The applicant also has a genuine and realistic commitment to expand his business to become an integrated sports centre, as a means of elevating sports standards in the Northern Rivers region and beyond.
Based on the evidence before it, the Tribunal is satisfied that the applicant will have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area. Therefore, the Tribunal is satisfied that cl 858.212(2)(d) is met.
Completed approved form 1000
The final subclause within cl 858.212 that must be met is cl 858.212(2)(e). This subclause requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement.
A completed approved form 1000 was signed by Mr Marquez, the President of the Federation of Australian Futsal, commenting on the applicant’s exceptional achievements as a strength and conditioning coach and his contribution to the Australian community.
The Federation of Australia Futsal (FAF) is the governing body of futsal in Australia under the membership of the ‘Asociacion Mundial de Futsal’ (AMF), the international governing body for futsal. The Tribunal is satisfied that the FAF is an Australian organisation which has a national reputation in relation to the area.
Given the above, the Tribunal finds that the applicant meets the requirements of cl 858.212(2)(e). The Tribunal also finds that the criterion in cl 858.212(2)(f) does not apply as the applicant was over 18 and under 55 at the time of application.
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.
As the second named applicant applied based on being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.
DECISION
The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visa for reconsideration with the direction that the first named applicant meets the criteria in cl 858.212 of Schedule 2 to the Regulations.
Antonio Dronjic
Member

Attachment A – document list
1.Updated Resume of Applicant, Alexandre Argolo
2.Updated Letter from Nominator, Antonio Marquez, dated 27/08/23
3.Original Letter from Nominator, Antonio Marquez, dated 17/09/19 (provided to DHA at the time of lodgement of visa application)
4.Australia National U15 Futsal Appointment Letter, dated 16/01/20 (provided to DHA in June 2020)
5.FIFA News Article published on 02/11/19 – Solomons Stamp Ticket to Lithuania – Success at OFC Nations Cup (provided to DHA in June 2020)
6.Letter from FIFA evidencing Applicant’s participation at FIFA World Cup, dated 16/06/21
7.Photograph evidencing Applicant holding World Cup Flag
8.Australia National U17 Futsal Appointment Letter, dated 02/02/22
9.Contract Agreement Club Athletico Paranaense, signed on 20/03/23 (Translation & Original)
10.Proposal of Services for Athletico Paranaense (Translation & Original)
11.Support Letter from Stars of Africa Football Academy, dated 08/08/23
12.Evidence of Applicant’s Flight Details to South Africa, 10/10/23 to 22/10/23
13.Australian National Men's Futsal Appointment Letter, dated 02/02/2023
14.ESSA Accreditation Certificates for the years 2020, 2021 & 2023 (the Certificates for 2020 were provided to DHA in June 2020)
15.Medicare Provider Number Details from 11/05/2020 to date
16.Overview of Futsal and Football in Australia, prepared by the Applicant
17.National Participation Report for 2022, published by Football Australia
18.1.Correspondence from Dr Vecchio regarding the Applicant’s business’s (Innova Performance’s) placements with SCU students
18.2.Letter from Dr Vecchio confirming the Applicant’s involvement with SCU as Placement Supervisor, dated 01/09/23
18.3.Certificate of Appreciation awarded to the Applicant from SCU, 2023
19.Certificate of Appreciation awarded to Innova Performance from Summerland Christian College, issued on 13/05/23
20.Letter from Ms Atherton from Summerland Christian College, regarding Applicant’s assistance with student’s work experience, dated 15/05/23
21.Sprint Research Proposal between Bond University and the Applicant’s business, dated 29/08/23
22.Profit and Loss Statement for Innova Performance for the financial year ending 30 June 2024
23.1.Instagram Page for Innova Performance
23.2.Instagram Post with Photograph evidencing Applicant’s attendance at the 52nd Gold Coast Sports Star Awards (provided to DHA in June 2020)
23.3.Facebook Page for Innova Performance (provided to DHA in June 2020)
24.Practitioner Performance at Innova Performance from 06/2021 to 08/2023
25.Indicative Business Plan for Innova Performance – Human Performance Center, August 2023 Support Letter from Mayor of Lismore, Mr Steve Krieg, dated 25 July 2023
26.Support Letter from Documentary Filmmaker (who made The Ground Under Our Feet – film charting the success of the Solomon Islands Futsal Team), dated 28 June 2023
27.21 Reference Letters in support of the Applicant (provided to DHA at the time of visa application lodgment) from:
27.1.Andrew Kerry – son, player – 30/09/19
27.2.Arthur Moura – athlete – 10/10/19
27.3.Stacey Stockman, Sports Physiotherapist and Managing Partner of Ascend Physiotherapy – 25/09/19
27.4.Mario Petraglia, President of the counsel of Club Athletico Paranaense – 09/09/19
27.5.Neil Chapman from Catalyst Exercise Physiology – 20/09/19
27.6.Christopher Hartley – son, player
27.7.Carla Sottovia, Director of Fitness & Personal Training Education Cooper Fitness Center – 19/09/19
27.8.Elliot Ragomo, Solomon Islands Futsal Captain – 26/09/19
27.9.Armando Cacace, President of Galaxy Futsal Club – 26/09/19
27.10.Andre Araujo. Physiologist for Goias Esporte Clube – 02/09/19
27.11.Shannon Smoje, Administration Manager/ Trainer & Assessor for FIT College Western & South Australia – 27/09/19
27.12.Rocky Silipo, Owner & Director of JustFootball Academy – 19/08/19
27.13.Vinicius Leite, Head Coach for Just Futsal
27.14.James Gow, Technical Director of Liverpool Football Club (FC) International Academy NSW – 22/08/19