Choo (Migration)

[2019] AATA 1863

Choo (Migration) [2019] AATA 1863 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kenneth Zhe Hooi Choo

CASE NUMBER:  1823474

DIBP REFERENCE(S):  BCC2018/473079 BCC2018/672847

MEMBER:Phoebe Dunn

DATE:13 June 2019

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 applicant meets the following criteria:

· cl.858.212 of Schedule 2 to the Regulations.

Statement made on 13 June 2019 at 4:00pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – badminton – past achievements and reputation – first and second placings in various national, state and university tournaments in Australia – placings in international tournaments – coaching achievements and capabilities – trained with the Malaysian national team prior to coming to Australia – decision under review remitted

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

CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 10 August 2018 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 25 January 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the primary criteria specified in the Regulations for the grant of a Distinguished Talent (Migrant) (Subclass 858) (Class BX) visa, specifically that the applicant had not demonstrated that he satisfied subclause (2) or (4) of cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ong Beng Teong, Ms Rochelle Liyanage, Mr Matthew Chau and Mr Rizwan Azam.

4. The applicant was represented in relation to the review by his registered migration agent.

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 25 January 2018.  The applicant made the visa application on the basis of his achievements in the field of sport, specifically, badminton.

   Relevant Law

7. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4). Subclause (2) sets out the following requirements:

   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 approval form 1000.

   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.

   (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.

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

9. The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met.

10. Clause 858.212(2)(a) requires the applicant to have an internationally recognised record of outstanding achievement in: a profession; a sport; the arts; or academia and research.

11. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically, badminton. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(ii) as belonging to ‘a sport’ for the purposes of cl.858.212(2)(a).

    Internationally recognised record of exceptional and outstanding achievement

12. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Regulations.

13. However, the Tribunal notes that the concept of ‘record of exceptional and outstanding achievement’ has been the subject of judicial consideration.

14. In particular the Courts have held that the ordinary meaning of ‘record’ does not require the record to be quantifiable as large, or lengthy, or as having been sustained over a period of time.  As a result, a ‘record is an aggregation or a list, not [necessarily] a large aggregation or a long list’.[1]

    [1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37]

15. The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. In Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’.

16. The Tribunal also notes that since Gaffar’s case was decided the relevant provision now requires the applicant to demonstrate an internationally recognised record of outstanding as well as exceptional achievement. Accordingly, the Tribunal acknowledges that while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

17. In the case of Hatcher v Cohn,[2] when considering the meaning of the word ‘exceptional’, Justice Keiffel opined that:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary.  But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

    [2] Hatcher v Cohn [2004] 139 FCR 425 Keiffel J at [49]-[50]

18. The Tribunal further notes that the Departmental guidelines (Procedures Advice Manual 3, or PAM 3) state, inter alia, the following:

    applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

    …

    Claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.

    A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

    An achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

    …

    an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field.  An applicant should be at the very top of their field.

19. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.  Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the regulations, the Tribunal is required to depart from it.  The Tribunal has taken into account the individual circumstances of the applicant.

20. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.  It is expected that these achievements would be recognised internationally, not just nationally.

21. 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 contain details of Mr Choo’s achievements to the date of the application, including written references attesting to Mr Choo’s capabilities as a player and a coach, and written and photographic evidence of tournament wins and placings.

22. The applicant is a professional badminton singles and doubles player and badminton coach from Malaysia.  In February 2016, at 19 years of age the applicant came to Australia to study mechanical engineering at Monash University.  Since March 2017 he has been employed by the Pro Badminton Academy in Victoria as a part-time coach, and also coaches some private students.

23. In support of his application the applicant provided evidence of his achievements in the sport of badminton, including winning first and second placings in various national, state and university tournaments in Australia, as well as placings in international tournaments, the most notable of which are as follows:

    a.National Champion of Australia Men’s Doubles 2017

    b.Winner, Men’s Doubles (City of Melbourne), 2017

    c.Runner Up, Men’s Doubles (Altona Open ), 2017

    d.Winner, Men’s Doubles (Ballarat Open), 2017

    e.Winner, Men’s Doubles (Monash Open) 2017

    f.Winner, Gosen Teams Invitational Badminton Victoria 2017 (Team)

    g.Winner, Australian University Games (Team - Monash University), 2016 & 2017

    h.Runners Up, Men’s Doubles (Victorian Open) 2016

    i.Winner, Doubles League Victoria (representing Monash University), 2016

    j.Winner, Victorian Junior Teams Championships, 2016

    k.Runners Up, Malaysian University Games, 2015

    l.State Champion Doubles and Runner Up Singles (Perak State Malaysia), 2015

    m.Silver medal in men’s doubles in Smiling Fish Under 19 International Challenge, Thailand, 2013

    n.Bronze Medal, Men’s singles, Malaysian Open Youth 19, 2013

    o.State Champion, Perak State of Malaysia in both men’s doubles (2011, 2012) and singles in 2012

    p.Bronze medal in Malaysia national junior grand prix singles for under 16, 2012

24. Subsequently, but before the application was refused by the Department, the applicant provided further evidence towards his application, including the following achievements:

    a.Full Blues award (Badminton), Monash University, 2017

    b.Second Place, Men’s Doubles in the 2018 Yonex Badminton Connect, Open and Graded

    c.Winner, Ede Clendinnen Shield, representing Victoria, 2018

    d.Winner, Australia National Championships, Men’s Doubles, 2018

25. The initial application was supported by two nominators, Badminton Australia, the national sports organisation for badminton in Australia, established in 1932, and Mr Ong Beng Teong, a former Malaysian badminton champion, who won the 1982 Commonwealth Games Badminton Men’s Doubles gold medal, and many championship titles at international badminton opens. Mr Teong is the owner, manager and coach at the Pro Badminton Academy where the applicant is also employed as a coach.

26. The initial application was also accompanied by letters of support from or on behalf of students of the applicant coached through the Pro Badminton Academy, attesting to the applicant’s coaching achievements and capabilities, and expertise in the sport of badminton, including:

    a.Paul Lim, attesting to the applicant’s prowess as a coach and sparring partner for his daughter, helping her achieve the title of 2017 Badminton Australian National Junior, Under 19 Girls Singles Champion, and represent Australia at the World Juniors in Indonesia in 2019

    b.Long Tinh, attesting to the applicant’s coaching competency for his son, helping him achieve selection in the Victorian state team in 2016 and 2017

    c.Patricia Wong, attesting to the applicant’s coaching competency for her son, helping him achieve selection in the World Juniors team in 2017, as well as selection for Victoria in several state and national tournaments

    d.Rizwan Azam, doubles partner of the applicant and winner of the Australian Nationals 2017, who attests to the applicant being his doubles partner in national and international competitions as well as his coach

    e.Sawan Serasinghe, Top Pair of Men’s Doubles of Australia (ranked 31), who attests to the applicant training with the national team since February 2017, and his excellence in the sport

    f.Statement of support by the Badminton Association of Malaysia in relation to the applicant’s record of achievements, notably as a former National Junior Badminton player, representing Malaysia at various international and local badminton tournaments such as the Asia Junior championships

    g.Statement of support by the Pro Badminton Academy Australia in relation to the applicant’s record of achievements as ‘world class player and also a brilliant coach’.  In particular Mr Teong notes that three players coached by the applicant were selected to represent Australia and Victoria in international and national championships, and many others have been inspired by him as an internationally prominent player and recent Australian champion

    h.Statement of support from the State Director of Badminton Victoria, MR Craig Haydock, attesting to his track record as an exceptional player

    i.Statement of support from Mr Matthew Chau, current men’s doubles partner of Sawan Serasinghe (ranked 31 in the world, and number one in Australia), attesting to the applicant’s capacity as a player

    j.Statement of support from the CEO of Badminton Australia, Mr Paul Brettell, attesting to the applicant’s skills as ‘world class player and also a brilliant coach’.  In particular Mr Brettell notes that three players coached by the applicant were selected to represent Australia and Victoria in international and national championships.

    Evidence of Mr Ong Beng Teong

27. Mr Ong Beng Teong is originally from Malaysia and is currently based in Melbourne running his own badminton centre, Pro Badminton Australia. Mr Teong has a distinguished badminton career, with numerous international titles, including winning gold at the 1982 Commonwealth Games and achieving a number two Badminton World Federation (BWF) ranking. Mr Teong described Mr Choo as one of the most talented players in Australia, with a strong future if given the opportunity to compete for Australia. Mr Teong presented evidence about Mr Choo’s achievements while competing in Malaysia, describing him as one of the top juniors at the time with success in Malaysian state and national championships, as well as international competitions in Thailand.

28. Mr Teong provided evidence about the higher standard of the Malaysian national competition when compared to the Australian national competition.  Badminton in Malaysia is considered the number one sport and Malaysia is regarded as being in the top three badminton countries internationally, alongside China and Korea. Mr Teong noted that while badminton was very popular in Australia, and growing increasingly so, the standard of the competition was not at the Malaysian level.  Mr Teong noted that Mr Choo’s record of exceptional achievement in state and national tournaments in Malaysia as well as international tournaments demonstrates his level of outstanding talent, and praised the applicant’s achievements as both a player and coach in Australia.  Mr Teong told the Tribunal that in his view Mr Choo would bring a lot of fame to Australia if given the opportunity to represent Australia in international competitions.

    Evidence of Ms Liyanage

29. Ms Liyanage is the President of Badminton Victoria, a senior selector for the national team, and has previously been the manager of the Victorian Badminton team.  Ms Liyanage presented evidence to the Tribunal attesting to Mr Choo’s talents as a player and achievements since coming to Australia. Ms Liyanage also provided evidence about Mr Choo’s capacity as a coach and mentor of junior players, and his importance to the Australian Badminton community, with many junior players idolising his achievements. Ms Liyanage noted that Mr Choo is the current national doubles champion for Australia, the highest ranking tournament in Australia. Ms Liyanage gave evidence about the ranking system in Australia, noting that Badminton Australia sets the rankings based on BWF regulations, and that a number of national tournaments attract international players, such as the Australian Open and Sydney International. Ms Liyanage noted that Mr Choo has the talent and commitment to represent Australia should he be given the opportunity.

    Evidence of Mr Chau

30. Mr Chau is a current member of the Australian National Badminton Team, was five times Men’s Doubles Champion, four times Oceania Champion, and has represented Australia in numerous international competitions, including the 2016 Olympic Games and the 2018 Commonwealth Games.  Mr Chau met Mr Choo at Monash University in 2016 when they both represented Monash at the University Games. Mr Chau presented evidence of Mr Choo’s talent and expertise, noting the benefits that he brings to the National Team as a sparring partner, exposing them to the higher speed, intensity and quality of the Malaysian competition. Mr Chau noted that if Mr Choo was an Australian citizen he would definitely be in the Australian team and would bring results for Australia, with his natural skills and athleticism as well as his commitment. Mr Chau commented that in his view Mr Choo was a better player than he was at his age and expected him to achieve a higher international ranking than he achieved (31), noting that Mr Choo beat him to become Australian national champion one year.

    Evidence of Mr Azam

31. Mr Azam is a professional badminton player and has been Mr Choo’s doubles partner for over three and a half years. Mr Azam came to Australia from Pakistan at the age of 27 on a Distinguished Talent visa having represented Pakistan in the sport of badminton, and was 10 times doubles champion in Pakistan.  Mr Azam attested to Mr Choo’s exceptional talent, noting his record of achievement in Australia, including two times National Doubles champion. Mr Azam noted that he has learnt a lot from Mr Choo and considers Mr Choo to have the capacity to represent Australia in the sport.

32. The Tribunal notes the written reference in support of Mr Choo’s application from Mr Brettell, the CEO of Badminton Australia. In that letter Mr Brettell lists Mr Choo’s Australian, Malaysian and International achievements, and his current contribution to the Australian national team and the Australian badminton community generally, adding that he strongly supports the application. The Tribunal has also had regard to a letter of support from the Badminton Association of Malaysia, attesting to his record in Malaysia and internationally prior to coming to Australia.

1. The criteria for a distinguished talent visa require an internationally recognised record of exceptional and outstanding achievement at the time of making the visa application: cl.858.212(2)(a). This requires an assessment of the applicant’s past achievements and reputation at the time the application was made, not their potential to develop a record of exceptional and outstanding achievement looking to the future. The Tribunal is satisfied that at the time the application was made, the applicant had international standing in the field of sport of badminton in Malaysia, and had achieved significant results in Australia placing him in the top echelons of his sport in Australia. He has played as a single and doubles player in tournaments of international repute in both Malaysia and Australia, and has won a number of titles nationally and internationally. The applicant also trained with the Malaysian national team prior to coming to Australia and now trains with the Australian national team, with the aim of representing Australia at the Commonwealth and Olympic games should he become eligible to do so. The Tribunal finds that the applicant’s record of achievement in the field of sport is and was at the time of application, unusual, prominent and out of the ordinary.

2. The Tribunal finds that the applicant met the requirements of cl.858.212(2)(a). The Tribunal is satisfied from the evidence provided that the applicant does have an internationally recognised record of exceptional and outstanding achievement in the sport of badminton and did so at the time of application. The Tribunal acknowledges that given the applicant’s age and the period of time he has been engaged in playing, his record of achievement has not been attained over a lengthy period. However, the Tribunal finds that cl.858.212(2)(a) does not require that an applicant’s record of achievement be attained over a particular period of time.

3. The Tribunal has also heard evidence of Mr Choo’s future potential as a badminton player, including from Badminton Australia.  The Tribunal notes that while Mr Choo’s international reputation may be enhanced by further experience and success, this does not diminish his record of achievement and reputation at the time of application. 

   Is the applicant still prominent in the area?

4. The Tribunal is satisfied that the applicant’s career at the time of the visa application indicates that he is still prominent in the sport of badminton.  This includes his most recent success as two time Australian national doubles champion (2017, 2018), two time winner of the State Championships (2018, 2019) and two time winner of the Men’s Doubles representing Monash University at the University Games (2017, 2018).  On top of this he is training with the Australian national team, and has achieved success as a coach with a number of his students achieving junior state and national placings and titles.

5. Accordingly, the Tribunal finds that cl.858.212(2)(b) is met.

   Asset to the Australian community

6. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. The Tribunal notes in the evidence before the Tribunal that as well as the applicant’s personal achievements in the sport of badminton, the applicant is making a positive contribution to the Australian badminton community as a player, mentor and coach. Evidence presented to the Tribunal at the hearing by Mr Teong, Ms Liyanage, Mr Chau and Mr Azam attested to Mr Choo being a very valued member of the Australian badminton community, encouraging, supporting, mentoring and coaching junior players, as well as supporting state and national players as a training and sparring partner. In particular they attested to the benefits of Mr Choo’s international experience to provide the Australian national team with exposure to the speed, intensity and quality of their international competitors and different game tactics and styles. The Tribunal also notes the evidence provided by the parents of students that Mr Choo coaches attesting to Mr Choo’s talents as a coach, mentor and inspiration to the next generation of badminton players. Accordingly the Tribunal finds that cl.858.212(2)(c) is met.

   Obtaining employment or becoming established independently in Australia

7. Clause 858.212(2)(d) requires that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia in the area. The Tribunal notes that Mr Choo is currently a part-time badminton coach at the Pro Badminton Academy, and also coaches some students privately, at the same time as undertaking full-time study at Monash University. Accordingly, the Tribunal is satisfied that the cl.858.212(2)(d) is met.

   Completed approved form 1000

8. The final paragraph in cl.858.212(2) that must be met is paragraph (e).The paragraph requires that the prescribed form be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. In this case the requisite form 1000 was completed by two nominators. The first nominator is Badminton Australia, the organisation responsible for the development of badminton in Australia and internationally and is signed by Mr Paul Brettell, the CEO. The second nominator is Mr Ong Beng Teong a former international badminton champion who won gold at the 1982 Commonwealth Games, was the Malaysian Men’s Singles Champion in 1995 and was formerly ranked number two on the Badminton World Federation World Rankings. The Tribunal finds that both the nominators have a national reputation in the field of the sport of badminton. As such cl.858.212(2)(e) is met.

   DECISION

9. 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.

   Phoebe Dunn
   Member