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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Argolo (Migration)

Details

AGLC: Argolo (Migration) [2023] AATA 3455
Case: [2023] AATA 3455
Decision Date: 5 October 2023

CaseChat Overview and Summary

This matter concerned an appeal by Alexandre Argolo against a decision of the Administrative Appeals Tribunal (the Tribunal) regarding his application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant had nominated his achievements in sport, specifically as a functional movement specialist and strength and conditioning coach, as the basis for his application. The Tribunal had determined that a hearing was not necessary, as it believed it could decide the matter based on the existing material.

The primary legal issue before the court was whether the applicant met the requirements of subclause (2) of clause 858.212 of Schedule 2 to the Migration Regulations 1994. This subclause requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a relevant field, be still prominent in that field, and be an asset to the Australian community, among other criteria. The applicant's nomination was supported by the Federation of Australian Futsal Ltd.

The court reasoned that the Tribunal had erred in its assessment of the applicant's eligibility. While the Tribunal had found that the applicant did not meet the requirements of clause 858.212(2)(a), the court considered the extensive documentation provided by the applicant, including his education, accreditation, international work experience with national sport teams, and supporting references from prominent figures and organisations. The court concluded that the applicant had demonstrated an internationally recognised record of exceptional and outstanding achievement, and that the Tribunal should have considered this evidence more thoroughly.

Consequently, the court remitted the applications for reconsideration by the Department, with a direction that the first applicant met the criteria in clause 858.212 of Schedule 2 to the Regulations. The application of the second applicant, who was a member of the family unit, would be determined by reference to the outcome of the first applicant's reconsidered application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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; andNote 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.

Decision

Reasons for decision

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 DronjicMemberAttachment A – document list1.Updated Resume of Applicant, Alexandre Argolo2.Updated Letter from Nominator, Antonio Marquez, dated 27/08/233.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 16/06/217.Photograph evidencing Applicant holding World Cup Flag8.Australia National U17 Futsal Appointment Letter, dated 02/02/229.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 08/08/2312.Evidence of Applicant’s Flight Details to South Africa, 10/10/23 to 22/10/2313.Australian National Men's Futsal Appointment Letter, dated 02/02/202314.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 Applicant17.National Participation Report for 2022, published by Football Australia18.1.Correspondence from Dr Vecchio regarding the Applicant’s business’s (Innova Performance’s) placements with SCU students18.2.Letter from Dr Vecchio confirming the Applicant’s involvement with SCU as Placement Supervisor, dated 01/09/2318.3.Certificate of Appreciation awarded to the Applicant from SCU, 2023 19.Certificate of Appreciation awarded to Innova Performance from Summerland Christian College, issued on 13/05/2320.Letter from Ms Atherton from Summerland Christian College, regarding Applicant’s assistance with student’s work experience, dated 15/05/2321.Sprint Research Proposal between Bond University and the Applicant’s business, dated 29/08/2322.Profit and Loss Statement for Innova Performance for the financial year ending 30 June 202423.1.Instagram Page for Innova Performance23.2.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 08/202325.Indicative Business Plan for Innova Performance – Human Performance Center, August 2023 Support Letter from Mayor of Lismore, Mr Steve Krieg, dated 25 July 202326.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 202327.21 Reference Letters in support of the Applicant (provided to DHA at the time of visa application lodgment) from:27.1.Andrew Kerry – son, player – 30/09/1927.2.Arthur Moura – athlete – 10/10/1927.3.Stacey Stockman, Sports Physiotherapist and Managing Partner of Ascend Physiotherapy – 25/09/1927.4.Mario Petraglia, President of the counsel of Club Athletico Paranaense – 09/09/1927.5.Neil Chapman from Catalyst Exercise Physiology – 20/09/1927.6.Christopher Hartley – son, player27.7.Carla Sottovia, Director of Fitness & Personal Training Education Cooper Fitness Center – 19/09/1927.8.Elliot Ragomo, Solomon Islands Futsal Captain – 26/09/1927.9.Armando Cacace, President of Galaxy Futsal Club – 26/09/1927.10.Andre Araujo. Physiologist for Goias Esporte Clube – 02/09/1927.11.Shannon Smoje, Administration Manager/ Trainer & Assessor for FIT College Western & South Australia – 27/09/1927.12.Rocky Silipo, Owner & Director of JustFootball Academy – 19/08/1927.13.Vinicius Leite, Head Coach for Just Futsal27.14.James Gow, Technical Director of Liverpool Football Club (FC) International Academy NSW – 22/08/19

Ratio Decidendi

Legal Principle Established

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