Cecilio Silva (Migration) - [2019] AATA 3069

Cecilio Silva (Migration) [2019] AATA 3069 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Renato Cecilio Silva
CASE NUMBER:  1726401
DIBP REFERENCE(S):  BCC2017/1041633, BCC2017/1091538
MEMBER:K. Chapman
DATE:30 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

Statement made on 30 April 2019 at 10:31am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 – no internationally recognised record of exceptional and outstanding achievement – Brazilian Jiu-Jitsu – competitor and coach – relatively low ranking with the IBJJF – obtained black belt 7 months before application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994, Schedule 2, cl 858.212(2)
CASES
Bretag v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 582
Gaffar v MIMIA [2000] FCA293
Zhang v MIMA and Anor [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 Immigration on 16 October 2017 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (‘the Act’).
The Distinguished Talent Class BX visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in one of the following areas: a profession, a sport, the arts or academia and research, or have provided specialised assistance to the Australian Government in matters of security. In addition to having such an internationally recognised record, the person must be still prominent in the relevant area. They must also satisfy further requirements relating to being an asset to the Australian community, having no difficulty in obtaining employment or becoming established independently in Australia in the relevant area, and having an appropriate nomination for the visa.
The applicant, Mr Renato Cecilio Silva, applied for the visa on 14 March 2017 on the basis that he had an internationally recognised record of achievement in the area of sport, specifically Brazilian Jiu-Jitsu (BJJ). The applicant is a national of Brazil and contends that his competition and coaching achievements, in conjunction with his reputation, in the sport of BJJ qualify him for the grant of the Subclass 858 visa. The applicant was nominated for the visa by Mr Vicente Cavalcanti, who is a competitor and coach in the sport of BJJ. Mr Cavalcanti also employs the applicant as a coach in his BJJ coaching business.
The delegate refused to grant the visa on the basis that the applicant did not have an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ at the time of application. The delegate, inter alia, referred to the BJJ competition rankings of the applicant in making this decision. On 27 October 2017, the applicant applied to the Tribunal for review of the visa refusal decision, providing a…

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 Cecilio Silva (Migration)

Details

AGLC: Cecilio Silva (Migration) [2019] AATA 3069
Case: [2019] AATA 3069
Decision Date: 30 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Cecilio Silva, who sought review of a decision to refuse him a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The applicant's claim for the visa was based on his achievements as a competitor and coach in Brazilian Jiu-Jitsu.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in the sport of Brazilian Jiu-Jitsu at the time of his visa application, as required by sub-clause 858.212(2)(a) of the Migration Regulations. This required the Tribunal to assess if his achievements were demonstrably excellent and "out of the ordinary."

The Tribunal reasoned that while the applicant had submitted a significant body of evidence, including his black belt status obtained seven months prior to the application and his relatively low ranking with the International Brazilian Jiu-Jitsu Federation (IBJJF), this did not establish an internationally recognised record of exceptional and outstanding achievement. The Tribunal applied the principles from *Gaffar v MIMIA* [2000] FCA 293, which defines "exceptional record of achievement" as being out of the ordinary, and considered the ordinary meaning of "record" as an aggregation or list, not necessarily a large or lengthy one, as per *Zhang v MIMA and Anor* [2007] FMCA 664. Ultimately, the Tribunal concluded that the applicant's record did not meet the threshold of exceptional and outstanding achievement.

Consequently, the Tribunal affirmed the decision not to grant the applicant 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

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl.858.212. In particular, the Tribunal must carefully assess whether at the time of the visa application he had an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ. Sub-clause 858.212(1) provides that the applicant must satisfy the requirements of cl.858.212(2) or (4) at the time of the visa application. Sub-clause 858.212(4) requires that an applicant has provided specialised assistance to the Australian Government in matters of security. There is no claim made in this regard and that sub-clause is not relevant to this review. Sub-clause 858.212(2) requires that, at the time of application for the visa, 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(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. The applicant applied for the visa on the basis of his record and achievements as a BJJ competitor and coach. He was nominated, in a Form 1000 that accompanied his visa application, by Mr Vincente Cavalcanti (‘the nominator’). The applicant was over the age of 18 years and under the age of 55 years at the time of the visa application and therefore cl.858.212(f) is not relevant to the review. The Tribunal has carefully considered all relevant evidence, both documentary and oral, in assessing whether the applicant satisfies the requirements contained in cl.858.212(2). Exceptional and outstanding achievement in sport As is relevant to the present matter, the applicant must have an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ. In determining whether the applicant has such an internationally recognised record, the criterion requires a demonstrated excellence in the relevant area 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. 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. The applicant submitted a significant body of documentary evidence in support of his contention that he had an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ at the time of the visa application. This includes material that he submitted to the Department prior to the visa refusal decision. The applicant submitted further material in support of his claim that he has continued to maintain such a record following the time of the visa application. He contends that this evidence points to him having the required record at the time of application, relying upon the reasoning of the Court in Bretag v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 582. The applicant further contends that his case falls within the parameters of Departmental policy for the grant of the visa. The Tribunal has carefully considered all of the material submitted in support of the applicant’s contentions.

Decision

Reasons for decision

For the reasons outlined, the Tribunal finds that the applicant does not satisfy the requirements for the grant of a Subclass 858 visa. DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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