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 ALARCONCASE 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 604STATEMENT 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…
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CaseChat Overview and Summary
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.
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Background
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Evidence
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Decision
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