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

1. 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).

2. 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.

3. 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.

4. The applicants were represented in relation to the review by their registered migration agent, Ms Maria Giordani. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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

7. 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 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.

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

9. In determining whether the visa applicant meets cl.858.212(2), all of the stated subclauses must be met.

10. 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 2^nd 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

11. 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.

12. 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.

13. The applicant made an application for review to the Tribunal on 3 May 2016. The Tribunal invited the applicant to attend the hearing scheduled for 22 May 2018. Prior to the scheduled hearing the Tribunal received updated detailed submissions and supporting evidence from the applicant. The submission included evidence of the applicant’s black belt registration with the International Brazilian Jiu-Jitsu Federation.  The applicant also provided evidence of the competitions he had competed in along with the medals he had achieved in competition. Evidence was also provided of the events he refereed in, along with evidence of his coaching.

14. The applicant attended the hearing on 22 May 2018 and gave evidence to the Tribunal. At the outset of the review hearing the Tribunal noted that it was conducting a review of a decision of the Department of Immigration to refuse the applicant a Distinguished Talent visa. The Tribunal noted that it was an independent review body, not connected to the Department of Immigration. The Tribunal noted that in the conduct of the review it would be considering all of the evidence provided by the applicant to the Department of Immigration, evidence provided at the review and evidence provided by the applicant at the review hearing. The Tribunal noted that the delegate found that the applicant, based on the evidence before him, did not have an internationally recognised record of exceptional and outstanding achievement in his sport.

15. The applicant outlined to the Tribunal that he believed the delegate had not understood the belt grading in relation to Brazilian Jiu-Jitsu. He outlined that he believed the delegate just looked at the IJJF website, and noticed that a black belt goes to the 9^th degree, and that because he only had a 2^nd degree at the time of application he was not accomplished enough and should have a higher degree rating. The applicant outlined that it’s around five years between degrees in the black belt. And that given his age it was not possible for him to have a more senior grade which the delegate said would have given his application more weight. He outlined that the reason he is not a higher degree within the black belt yet, is because he is too young. He outlined that he achieved the 3^rd degree in December 2017, so 4^th degree will be in 2022 and it will be another 15 years before he can progress to the red/black belt, the highest level. The applicant submitted that he was at the highest black belt degree level possible given his age and when he started Brazilian Jiu-Jitsu.

16. The applicant told the Tribunal that he started Brazilian Jiu-Jitsu when he was 13 years old. He stated he spent 2.5 years at a white belt, and whilst on a white belt he started to compete in regional and national tournaments in Brazil. He then progressed to his blue belt in 1997 and started to compete more seriously, travelling to Miami in 1999 and Florida in 2000 to complete in the international Pan America competition. He outlined he progressed to his purple belt in 2000, at which time he also started to be an assistant coach to the newer students. He outlined that he spent five years on his purple belt, and then in 2004 achieved brown belt, before advancing to black belt in 2008. The applicant outlined that during the time between brown and black belt he started to teach/coach Brazilian Jiu-Jitsu in Rio de Janeiro whilst still competing. He outlined that Brazilin level competition and tournaments are very hard and of a very high level, much harder than any other place in the world. He said that in Brazil when he started competing it was very hard to win, because the competition standard was so high, and much busier. He outlined that Brazilian Jiu-Jitsu was the most popular sport in Brazil and gave an example, that if competing in Brazil in the same division (compared with anywhere else in the world) there would be 50 athletes to compete against, as such it is much harder to achieve a result. He stated that he was the state/national champion of Brazil in 1997, 1999 and 2001 and after that he competed in numerous competitions and although he did very well and placed, he did not win. However,  he has more recently obtained international titles since 2015, both prior to and after submitting his application, including being the two times Pan Pacific champion in 2016 and 2017, which he described as big events with lots of people coming from around the world to compete as the competition is a 3 star event for Brazilian Jiu-Jitsu Federation ranking purposes. He further outlined he has had many achievements since 2015 including gold and silver international level awards for multiple categories, evidence of which were provided to the Tribunal. The applicant also outlined to the Tribunal that he has a fan base and that his fans upload his fights on YouTube and he has a following from all over the world.

17. In addition to the competitions the applicant completed in, he discussed with the Tribunal his coaching, where he said his real passion lies. He outlined that although he likes to compete and train, he really loves to see his students achieving. He said if he had to choose he would prefer his students to win rather than himself. He said he knows he has a good level of skill, but would prefer to help people to get to this level, to cultivate their skills. He gave evidence that he has an interest in the technical side of the sport. He further stated that it is very hard to find a black belt who coached that is also interested in the theory, the rules and the techniques. The applicant told the Tribunal that most of the practitioners are more interested in themselves and winning, however, that he is interested in the theory and the history behind the details - the techniques and rules. His opinion was if you can perfect these it can make a big difference to the journey and winning. Further, that understanding the theory means that you are a better instructor/referee. The applicant stated that he believed his in depth knowledge of the theory, the technical aspects along with the rules of the sport and competition sets him aside and that he stands out from others that may hold 3^rd degree black belts as he does. He stated that understanding the rules and theory along with the movements and techniques makes you more prepared and it is an advantage that people in the sport are aware of and as such seek him out for coaching because of his knowledge. The Tribunal notes that the applicant’s claims regarding his coaching, and the level of skill he has is supported by letters provided by the world champions he has coached over the years, and in particular the letter from Juilo Cesar Pereira, 7^th degree black belt holder and internationally renowned Brazilian Jiu-Jitsu coach, who has known the applicant since he was a child, and who attests that the applicant is highly skilled in Brazilian Jiu-Jitsu with ‘unmatched technical qualities’ who plays a significant role in the development of Brazilian Jiu-Jitsu around the world through his coaching.

18. The applicant outlined that since coming to Australia he has established GFT Mandurah, a private club which currently has 70 students specialising in Grappling and Brazilian Jiu-Jitsu. He outlined that he receives income from this business which supports himself and his family. In addition he outlined that he has been the head Referee of the Australian Federation of Brazilian Jiu-Jitsu in WA since January 2016.

19. The applicant discussed his prominence with the Tribunal. He said in Australia, everybody who is involved with Brazilian Jiu-Jitsu knows his club and him personally. He said he regularly travels to Melbourne and Sydney as a competitor, coach and referee. He outlined that at the competitions he would referee between 80-90 fights per competition. That he often, upon invitation, would also attend as a guest coach/instructor at clubs nationally. He said that everyone knows his history and students, and that often competitors and other coaches seek him out for his expertise, and that his Brazilian heritage plays a large part in this, as people believe that a coach who is a Brazilian national will help them attain a higher level. He explained that he trained in Brazil for 23 years and gave the example of a Muay-Thai instructor coming from Thailand who is trained where the craft originates would be more highly skilled compared to someone who has never been to Thailand. He stated that it is very hard to find someone in Australia who has trained for as long as he had, especially where the sport originated. He outlined that as a Brazilian native with such a wealth of experience, Australians choose to learn from him, as Brazilian Jiu-Jitsu is so new here, and no Australian nationals have that length and breadth of experience as he does at his black belt level. In addition to the applicant’s prominence in Australia, he said he is also very well-known internationally, especially given his coaching of multiple Brazilian Jiu-Jitsu world champions along with a YouTube following of his fights.

20. The Tribunal heard evidence from Mr Luis Fabio De Andrade Nunes, Director of the Australian Brazilian Jiu-Jitsu Federation, who is also the nominator for the applicant’s Distinguished Talent visa application. Mr Nunes confirmed to the Tribunal that the nomination still stands. He outlined he met the applicant more than 20 years ago, back in Brazil as they were in the same team. He outlined that because of the applicant’s talent he had been asking him to come to Australia for many years in order to help him develop Brazilian Jiu-Jitsu given his in-depth technical skills and expertise. He outlined that the applicant’s club was doing very well, with lot of students competing. He submitted that the applicant, as a coach, had been helping lots of very good fighters, including world champions and one of the best fighters currently in the world. Mr Nunes also remarked that the applicant coaches Rodolfo Vieira who is an eight time world champion in Brazilian Jiu-Jitsu. Mr Nunes also told the Tribunal that the applicant was a good referee and was adjudicating at international and national level competitions. In addition to refereeing and coaching competitors in national and international competitions, Mr Nunes also detailed that the applicant, in addition to coaching and refereeing, competed himself and was competing in international and national competitions and achieving first, second and third places. Mr Nunes stated that he believed the applicant was one of the best competitors in Australia at the moment. He also stated that he is also very well-known and regarded in Brazil from the days of his competing there, and that there were numerous fights of the applicant on YouTube and that he has a worldwide following. Mr Nunes told the Tribunal that everybody knows him, and in Australia they all support the claim he is of exceptional talent to stay here. Mr Nunes finally concluded that he thought the applicant was doing a very good job with lots of students and that the kids under his guidance stay away from drugs and alcohol, that they become better people. He said the goal is to change people’s lives for the better, which the applicant does.

21. Independent evidence in support of the applicant was provided by Mr Andre Fernandes, the Executive Director of the International Brazilian Jiu-Jitsu Federation. He provided a letter of support for the applicant attesting that the applicant is an active competitor and referee, confirming his participation in the following events (*Gi refers to the white uniform No Gi is when no uniform is worn):

    Competitor

    ·Melbourne International Open 2015 GI – Medium Heavy weight black belt – 1^st

    ·Melbourne International Open 2015 GI – Open weight black belt – 2^nd

    ·Melbourne International Open 2015 NOGI – Medium-Heavy weight black belt 1st

    ·Melbourne International Open 2015 NOGI – Open weight black belt 2^nd

    ·Sydney International Open 2016 GU Medium-Heavy weight black belt – 1^st

    ·Sydney International Open 2016 GI – Open weight black belt – 3^rd

    ·Sydney International Open 2016 NOGI – Medium- Heavy weight black belt – 1^st

    ·Pan Pacific 2016 GI – Medium-heavy weight black belt – 1^st

    ·Pan Pacific 2016 NOGI – Medium-heavy weight black belt 1^st

    ·Melbourne International Open 2017 GI – Middle weight black belt – 3^rd

    ·Pan Pacific 2017 GI – Medium-heavy weight black belt – 2^nd

    ·Pan Pacific 2017 – NOGI – Medium-heavy weight black belt – 1^st

    ·Pan Pacific 2017 NOGI – Open weight black belt – 2^nd

    ·Sydney International Open 2018 GI – middle weight black belt – 2^nd

    ·Sydney International Open 2018 GI – Open weight black belt ­– 3^rd

    ·Sydney International Open 2018 NOGI – middle weight black belt – 2^nd

    Referee

    ·Melbourne International Open 2015 GI and No Gi

    ·Sydney International Open 2016 Gi and No Gi

    ·Pan Pacific 2016 GI and No Gi

    ·Melbourne International Open 2017 GI and no Gi

    ·Pan Pacific 2017 GI and No Gi

    ·Sydney International Open 2018 GI and No Gi

1. In relation to the applicant’s coaching achievements, the Tribunal has received letters of support from:

   ·Rodolfo Vieira, an eight time world champion in Brazilian Jiu-Jitsu who attests that the applicant has coached and trained him through his career;

   ·Patrick Gaudio, four time world champion in Brazilian Jiu-Jitsu who attests that the applicant has coached and trained him through his career;

   ·Jake O’Driscoll, three time Australian Brazilian Jiu-Jitsu champion who attests to the applicant’s skills as a Brazilian Jiu-Jitsu competitor, coach and referee;

   ·Marcelo Guimaraes, Sydney International Open Champion 2018 attesting to the applicant’s skills as a Brazilian Jiu-Jitsu competitor, coach and referee;

   ·Alvari Bobadilla, three time world champion in Brazilian Jiu-Jitsu who attests that the applicant has coached and trained him through his career;

   ·Juilo Cesar Pereira, 7^th degree black belt holder and internationally renowned Brazilian Jiu-Jitsu coach, who has known the applicant since he was a child, and who attests that the applicant is highly skilled in Brazilian Jiu-Jitsu with ‘unmatched technical qualities’ who plays a significant role in the development of Brazilian Jiu-Jitsu around the world through his coaching.

2. The Tribunal received twenty seven letters from members of the Australian community attesting to the applicant’s contribution to the community through his club, GFT Mandurah, established in 2016 which currently has 70 students specialising in Grappling and Brazilian Jiu-Jitsu.

3. The Tribunal also received a letter of support from the applicant’s local member of state parliament; Zak Kirkup, MP for the District of Dawesville. The letter states in part:

   As a result of my personal involvement with Mr Bobadilla, I have gained insight into the positive impact that he and his business have had in the community I represent.

   There is a particularly program that I would like to highlight, which speaks to Leo’s commitment to helping build a better community in Western Australia. Through the “Especial BJJ Project”, free classes are offered to young people with disabilities to help build their confidence and physical skills. In addition, GFTeam Mandurah offers classes to young people at risk in Brazilian jiu-jitsu, teaching them valuable skills and discipline.

4. The Tribunal has made reference to the submission that was provided to the Department in support of his application, and an updated submission provided at review. The submissions detail the applicant is a Brazilian Jiu-Jitsu fighter who competes, coaches and referees his sport at an elite level in addition to operating a successful Brazilian Jiu-Jitsu school in Marundah, Western Australia.  The submissions note that the applicant started training in his sport in 1994 in Brazil. The applicant noted that prior to coming to Australia and in the past four years since his arrival he had competed at national and international level. In addition he has coached competitions at national and international levels, including world champions, and has also refereed national and international competitions.

5. The evidence before the Tribunal indicates that prior to the applicant lodging his Distinguished Talent visa he had won competitions at national level in Brazil, and also competed at international events in America and Australia. The applicant described the competitions in Brazil as being at the top echelons of Brazilian Jiu-Jitsu and held in the home of Brazilian Jiu-Jitsu.  The applicant advised that this competition attracted international competitors from all around the world. The applicant stated his placing in these competitions substantially increased his international profile as a proponent of Brazilian Jiu-Jitsu, and that numerous old fights of his were posted on YouTube and were watched by a large audience because of his style and technique. He stated that many fighters try and copy his style based on watching the videos and he has developed a large following. This was also confirmed by Mr Nunes and goes towards the applicant’s international prominence.

6. Since the applicant lodged the Distinguished Talent visa, he has continued to compete, coach and referee at international level, including winning numerous competitions as detailed and confirmed by Andre Fernandes, the Executive Director of the International Brazilian Jiu-Jitsu Federation, of which the applicant is a member.

   ASSESSMENT AGAINST THE CRITERIA

7. There are various elements within cl.858.212(2) which need to be satisfied.  The first is whether the applicant has an internationally recognised record of exceptional and outstanding achievement in one of the areas set out in cl.858.212(2)(a).  The applicant’s nominated area is as a sportsman namely a practitioner of Brazilian Jiu-Jitsu.

   Internationally recognised record

8. In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary: see Gaffar v MIMIA [2000] FCA293 where the court considered the phrase “exceptional record of achievement” in an earlier category of skilled residence visa.

9. 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.  A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA and Anor [2007] FMCA 664.

   FINDINGS AND REASONS

10. The applicant in this case claims that he has an internationally recognised record of exceptional and outstanding achievement in a sport, Brazilian Jiu-Jitsu and in a profession, namely as a Jiu-Jitsu teacher and coach. In support of the applicant’s claims, the applicant provided a range of material including a detailed submission covering his career which has been referred to extensively in this decision, statements from colleagues, students, and from the heads of sporting associations. As is documented in this decision the applicant has also presented evidence of successful participation in a number of International Championships most recently in Australia in 2018 where the applicant won silver and bronze medals in his black belt division.

11. The Tribunal finds that Brazilian Jiu-Jitsu may be classified as a sport, and the coaching and instruction in Brazilian Jiu-Jitsu may be classified as a profession for the purpose of cl.858.212(a).

12. In determining whether the applicant has an international record of exceptional and outstanding achievement as a proponent of Brazilian Jiu-Jitsu, the Tribunal has considered all of the evidence provided with the visa application and submitted to the Department of Immigration, along with the supplementary evidence provided by the applicant prior to the review hearing, and evidence provided during the review hearing. The Tribunal considers the participation and placements that the applicant has achieved in a number of national and international events since the late 1990s as demonstrated evidence of the applicant’s internationally recognised exceptional and outstanding achievements in the sport of Brazilian Jiu-Jitsu. Further, in relation to his coaching, particularly based on the documentary evidence that he has coached multiple international world champions, who have provided written testimony which directly attributes the applicant’s coaching to their successes throughout their careers, also demonstrates he has an internationally recognised exceptional and outstanding achievement as a coach in the sport of Brazilian Jiu-Jitsu.

13. Having regard to the evidence before it, including the applicant’s achievements in the above-mentioned international competitions, documented achievements in domestic competitions as well as the significant recognition of the applicant’s skills by his peers in the sport, the Tribunal accepts that the applicant has an internationally recognised record of exceptional and outstanding achievement in a profession and a sport. The Tribunal notes that additional information and evidence has been made available to the Tribunal at the review stage, in particular, evidence relating to the applicant’s significant achievements in international competitions post 2014, along with the evidence regarding his coaching of numerous world champions.

14. Having regard to the reasoning in the case of Gaffar, namely that the legislative requirement does not require something that makes the applicant’s record unusual or special or out of the ordinary, the Tribunal is satisfied based on the evidence before it that the applicant’s sporting achievements and ongoing commitment to the sport as a teacher, coach and instructor indicates that the applicant has made a substantial contribution to his sport and remains prominent as a proponent of Brazilian Jiu-Jitsu. The Tribunal is accordingly satisfied that the applicant meets the requirements of cl.858.212(2)(a) and cl.858.212(2)(b).

15. The evidence before the Tribunal indicates that there is significant support within the Australian community for the applicant’s skills and abilities and support from the Australian Federation of Brazilian Jiu-Jitsu. Given the applicant’s active positive contribution over the last several years in Australia, and his commitment to continue if his visa were to be granted, the Tribunal is satisfied that the applicant is, and will continue to be, an asset to the community, therefore cl.858.212(2)(c) is met.

16. The applicant has been involved in teaching and instructing in Brazilian Jiu-Jitsu for many years and his business in Western Australia has been operating for a number of years. The applicant has provided evidence from members of the community who have benefited from the training offered by the applicant in his Jiu-Jitsu Academy. The Tribunal accepts that the applicant would have no difficulty in obtaining employment or indeed becoming established independently in Australia in the area of Brazilian Jiu-Jitsu teaching and instruction, as he has demonstrated he has done already. On that basis, the Tribunal sees no reason as to why that would not continue into the future. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

17. The applicant was nominated by Mr Luis Fabio De Andrade Nunes Director of the Australian Brazilian Jiu-Jitsu Federation. The Tribunal is satisfied that the applicant produced an approved form 1000. He meets cl.858.212(e).

18. 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.

19. 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

20. 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-Wake
    Member