BOBADILLA ALARCON (Migration) - [2018] AATA 4856

BOBADILLA ALARCON (Migration) [2018] AATA 4856 (18 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mario Leonardo BOBADILLA ALARCON
Ms Maria Luiza ALARCON
Mrs Vanessa CANDIDA NARCIZO SILVA ALARCON
CASE NUMBER:  1606243
DIBP REFERENCE(S):  BCC2016/883508
MEMBER:Cathrine Burnett-Wake
DATE:18 October 2018
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 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa; and
·The second and third named applicants meet clause 858.311 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 18 October 2018 at 8:20am
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record – sport and profession – Brazilian jiu-jitsu – belt grading – competed and coached at national and international level – operates Brazilian jiu-jitsu school – coached multiple world champions – letters of community support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 858.212, 858.311

CASES
Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA and Anor [2007] FMCA 604
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 Immigration on 29 April 2016 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).
The visa applicant applied for the visa on 4 March 2016. The delegate refused to grant the visa on the basis that the delegate could not be satisfied that the applicant had an international record of exceptional and outstanding achievement in the sport of Brazilian Jiu-Jitsu.
The applicants appeared before the Tribunal on 22 May 2018, by video conference, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. Mr Luis Fabio De Andrade Nunes, Director of the Australian Brazilian Jiu-Jitsu Federation was also present at the hearing and gave evidence in support of the applicant.
The applicants were represented in relation to the review by their registered migration agent, Ms Maria Giordani. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant made an application for a Distinguished Talent visa on 4 March 2016. The applicant made the visa application on the basis of his achievements in the field of sport, specifically Brazilian Jiu-Jitsu.
Relevant law
The issue in dispute in this review is whether the visa applicant meets the requirements of cl.858.212(1). 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…

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.

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Details

AGLC: BOBADILLA ALARCON (Migration) [2018] AATA 4856
Case: [2018] AATA 4856
Decision Date: 18 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858, made by Mr. Bobadilla Alarcon. The delegate of the Department of Immigration had refused the visa application, finding that the applicant had not demonstrated an internationally recognised record of exceptional and outstanding achievement in his sport of Brazilian jiu-jitsu. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant possessed an internationally recognised record of exceptional and outstanding achievement in Brazilian jiu-jitsu, as required for the subclass 858 visa. This involved assessing the significance of his belt grading, his competitive record at national and international levels, and his achievements as a coach and referee, in light of the delegate's assessment that these were not necessarily reflective of an athlete or instructor in the top echelons of the field.

The Tribunal considered the applicant's career, which began in 1994, including his national championships in Brazil, international competitions such as the World Championships and Pan American championships, and his promotion to black belt in 2008. The Tribunal also had regard to the applicant's success as a coach, evidenced by statements from highly accomplished athletes he had trained, and the argument that competition in Brazil, the sport's origin, represents a particularly high standard. The Tribunal found that the applicant met certain criteria for the visa, specifically cl.858.212 of Schedule 2 to the Regulations, and that his family members met cl.858.311. Consequently, the Tribunal remitted the application to the Department for reconsideration of the remaining criteria for the subclass 858 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A delegate of the Department of Immigration refused the visa application in a decision made on 29 April 2016. As noted above the delegate found that the applicant did not have an internationally recognised record of exceptional and outstanding achievement in his sport of Brazilian Jiu-Jitsu. At the time of decision the delegate noted that the applicant was a holder of a 2nd degree Brazilian Jiu-Jitsu black belt, however, although commendable, stated more weight would have been applied had the applicant been the holder of a more senior belt as there are no fewer than 10 degrees of black belt in Brazilian Jiu-Jitsu. The delegate also noted the applicant’s participation and success in various championships, such as the 1998 World Championships in the USA, however, despite these successes, the claim and the material evidence was predominantly limited to competitions within Brazil and in the delegate’s opinion, of a lesser status. The delegate also noted the applicant’s international ranking of 145, and acknowledged it was noteworthy, however, in his opinion not necessarily reflective of an athlete considered in the top echelons of the field. The delegate also considered the applicant’s achievements in the sport as an instructor and referee, of which it was noted they were commendable, however, not indicative of an instructor or referee whose abilities are considered superior to others in the field.Claims and evidence The Tribunal has had regard to submissions and supporting evidence provided to the Department in support of the applicant. The submissions detail that the applicant began his Brazilian Jiu-Jitsu career in 1994 in Brazil and won regional and national championships in 1997, 1999 and 2001. Additionally he competed in various international competitions such as the World Championships of 1998 and the Pan American in 1999 and 2000. In 2004 the applicant was promoted to brown belt standing, and became a member of the board of management for the Grappling Fighting Team and also commenced coaching of the sport. In 2008, the applicant was then promoted to a black belt. The submissions also provide that the applicant’s achievements as a coach can be reflected based on the top athletes he has trained, such as Alvaro Bobadilla and Luciano Queiroz. Supporting evidence was provided to the Tribunal which demonstrates Alvaro Bobadilla and Luciano Queiroz are very accomplished and acclaimed athletes in Brazilian Jiu-Jitsu, both of whom supplied supporting statements attesting their accomplishments to the technical training and coaching received from the applicant. The submissions also detail that the high-level of completion in Brazil, in relation to other countries competition standards, needs to be taken into account; in that Brazil is where Brazilian Jiu-Jitsu originated, and as such has the highest standing and level of competition in the field, along with the calibre of competitors. The submissions highlight that the applicant was three times Brazilian national champion, a feat that is difficult to achieve.

Decision

Reasons for decision

As the second and third named applicants are members of the family unit of the applicant, the Tribunal finds that they are able to meet the requirements in cl.858.311.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 The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the applicant meets the following criteria:· cl.858.212 of Schedule 2 to the Regulations; and· The second and third named applicants meet clause 858.311 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa.Cathrine Burnett-WakeMember

Ratio Decidendi

Legal Principle Established

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