COOMA UNITED RUGBY LEAGUE FOOTBALL CLUB (Migration)

[2023] AATA 108

COOMA UNITED RUGBY LEAGUE FOOTBALL CLUB (Migration) [2023] AATA 108 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Cooma United Rugby League Football Club

VISA APPLICANT:  Mr Patrick Eugene Nkouak Mbindzing

CASE NUMBER:  2003043

HOME AFFAIRS REFERENCE(S):          BCC2019/783623

MEMBER:Katie Malyon

DATE:5 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·cl 408.219A of Schedule 2 to the Regulations; and,

·cl 408.222 of Schedule 2 to the Regulations.

Statement made on 05 January 2023 at 4:19 pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary activity) – elite sport player – endorsement letter from national association not provided before date of delegate’s decision – letter provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), r 2.57, Schedule 2, cls 408.219A, 408.222(3)(d)

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 Home Affairs on 28 January 2020 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Cameroon national Mr Patrick Eugene Nkouak Mbindzing, applied for the visa on 8 January 2020 intending to play football with the Cooma United Rugby League Football Club ABN 17 830 795 415 aka Cooma Stallions (Cooma United RLFC or the Club). At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant must satisfy the common criteria in Subdivision 408.21 as well as the criteria of one the numerous alternative clauses set out in Subdivision 408.22. Mr Nkouak Mbindzing applied to meet the requirements in cl 408.222(3) ‘Elite player, coach, instructor or adjudicator’. Relevant criteria from the Regulations referred to in this decision are extracted in the Attachment.

3. The delegate in this case refused to grant the visa on the basis that Mr Nkouak Mbindzing did not satisfy cl 408.222(3) of Schedule 2 to the Regulations because he had not provided the Department with an endorsement letter from the national sporting association responsible for administering the sport of rugby league in Australia certifying that he had the ability to play at the Australian national level or equivalent. Therefore, Mr Nkouak Mbindzing also did not meet cl 408.219A of Schedule 2 to the Regulations.

4. In his review application form lodged with the Tribunal, Mr Nkouak Mbindzing appointed his sponsor, Cooma United RLFC, to receive communications in relation to his application. On 30 November 2022 and following constitution of the matter to the Member, the Tribunal wrote to the Cooma United RLFC inviting Mr Nkouak Mbindzing under s 359(2) of the Act to provide an updated letter of endorsement from the national sporting association responsible for administering the sport of rugby league in Australia as the letter from the National Rugby League Ltd (the NRL) dated 18 October 2021 provided to the Tribunal refers to the 2022 season.  The Tribunal also requested it be provided with an updated contract which provides for Mr Nkouak Mbindzing to play for Cooma United RLFC as the earlier contract lodged with the Department had expired.  In response, these documents were provided to the Tribunal. 

5. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of Mr Nkouak Mbindzing and thereby the Cooma United RLFC based on the material before it consistent with s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether a clause in Subdivision 408.22 of Schedule 2 to the Regulations applies to Mr Nkouak Mbindzing as required by clause 408.219A of Schedule 2 to the Regulations.

8. There are various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations which represent alternative pathways for the grant of Subclass 408 visa. Mr Nkouak Mbindzing is seeking to satisfy the ‘Elite player, coach, instructor or adjudicator’ requirements in cl 408.222(3). He has not claimed to meet the ‘Sports trainee’ requirements in cl 408.222(2), or any of the alternative clauses in Subdivision 408.22.

   ‘Elite player, coach, instructor or adjudicator’ requirements

9. Tribunal has considered each of the requirements in cl 408.222(3) of Schedule 2 to the Regulations to determine if Mr Nkouak Mbindzing meets that clause as a whole and thereby satisfy cl 408.219A.

   Purpose of stay – cl 408.222(3)(a)

10. Sub-clause 408.222(3)(a) requires that the applicant seeks to enter or remain in Australia to be a player, coach, instructor or adjudicator in relation to an Australian sporting team or organisation.

11. Mr Nkouak Mbindzing indicated in his Subclass 408 visa application that he intends to fill the position of ‘Sporting Activities and Coaching’ and provided the Department with a Standard Playing Agreement dated 22 January 2020 with Cooma United RLFC which provides that he will play Rugby League with the Club until the agreement terminates on 31 October 2020.  He also provided the Department with a joint statement from Cameroon Rugby League XIII and the Cooma United RLFC which states that the organisations will partner to enable young women and men from Cameroon to play with the Cooma United RLFC and thereby enrich the lives of young men and women though rugby league.   

12. In response to the Tribunal’s s 359(2) invitation, Cooma United RLFC’s President Mr Carol Manga provided the Tribunal with a signed Senior Player Agreement dated 1 January 2022 (the Agreement) which confirms Mr Nkouak Mbindzing’s position as a senior player with Cooma United RLFC for a period of 2 years expiring on 31 October 2024.

13. Further, the letter of endorsement from the NRL dated 22 December 2022 signed by the General Manager Participation National Rugby League, Mr John Wilson, confirms Mr Nkouak Mbindzing will play for the Cooma United RLFC for Season 2023 and that, in doing so, he will be of benefit to the on-going development of the sport of Rugby League in Australia.

14. Based on evidence before the Tribunal, it is satisfied that Mr Nkouak Mbindzing’s purpose of stay in Australia is to be engaged as a senior player for the Cooma United RLFC.  The Tribunal is also satisfied that Cooma United RLFC is an Australian sporting team or organisation.[1]

    [1] >

    For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(a) are met.

    Invitation – cl 408.222(3)(b)

15. Subclause 408.222(3)(b) requires that the applicant has been invited by a sporting team or organisation that is lawfully operating in Australia to participate in the activity referred to in cl 408.222(3)(a).

16. ‘Sporting organisation’ is defined in reg 2.57 of the Regulations as either an Australian organisation, a government agency or a foreign government agency that administers or promotes sport or sporting events. The terms ‘Australian organisation’, ‘government agency’ and ‘foreign government agency’ are also defined in reg 2.57 of the Regulations.

17. As noted above, the Tribunal is satisfied that Cooma United RLFC is a sporting organisation lawfully operating in Australia.  It has been approved by the Department as a Temporary Activities Sponsor until 29 November 2024.

18. Based on the evidence lodged with both the Department and the Tribunal, the Tribunal is satisfied that Mr Nkouak Mbindzing has been invited by Cooma United RLFC to participate as a player with the Club.  Clause 2 of the Agreement confirms that Mr Nkouak Mbindzing has been invited by with Cooma United RLFC to play Rugby League with the Club for a period of 2 years expiring on 31 October 2024.

19. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(b) are met.

    Formal arrangements – cl 408.222(3)(c)

20. Subclause 408.222(3)(c) requires that the applicant has entered into a formal arrangement that provides for the applicant to participate as a player, coach, instructor or adjudicator, as relevant, in relation to an Australian sporting team or organisation for a period specified in the arrangement.

21. The Tribunal is satisfied that Mr Nkouak Mbindzing entered into the Agreement with Cooma United RLFC.  The Agreement provides that Mr Nkouak Mbindzing will participate as a player with the Club for a period of 2 years expiring on 31 October 2024.

22. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(c) are met.

    Letter of endorsement - cl 408.222(3)(d)

23. Sub-clause 408.222(3)(d) requires that the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level.

24. The Tribunal is satisfied that the NRL is the national sporting body responsible for administering the sport of Rugby League football in Australia.[2]  It is included in the Australian Sports Directory which contains details of all national sporting organisations.  The NRL reports to its governing body, the Australian Rugby League Commission.

    [2]

25. As noted above, the delegate refused Mr Nkouak Mbindzing’s Subclass 408 visa application because he had not provided a letter of endorsement as at the date of the delegate’s decision. The Tribunal has been provided with 2 signed letters of endorsement from the NRL in respect of Mr Nkouak Mbindzing. The first signed letter 18 October 2021 is from Matthew Faulkner, the NRL’s Salary Cap Auditor. He states that Mr Nkouak Mbindzing will play for the Cooma United RLFC for season 2022 and that he has the ability to compete at a senior level of Rugby League in Australia. In light of Mr Faulkner’s reference to the now expired season 2022, the Tribunal requested in its s 359(2) letter an updated letter from the NRL. As noted above, the Tribunal has received an updated letter from John Wilson, the NRL’s General Manager Participation dated 22 December 2022 confirming support for Mr Nkouak Mbindzing to play for the Cooma United RLFC for season 2023.

26. On the basis of available information, the Tribunal is satisfied that the signed letters of endorsement dated 18 October 2021 and 22 December 2022 from the NRL are from the national sporting body responsible for administering and promoting the sport of Rugby League in Australia.  The letter dated 18 October 2021 certifies that Mr Nkouak Mbindzing has the ability to compete at a senior level of Rugby League in Australia.  The most senior level in Australia is the national level.

27. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(d) are met.

    Sporting organisation passes the sponsorship or support test – cl 408.222(3)(e)

28. Subclause 408.223(3)(e) requires that the relevant sporting organisation is either a temporary activities sponsor or a long stay activity sponsor and passes the sponsorship test in relation to the applicant. Alternatively, if the visa applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the sporting organisation must pass the support test in relation to the applicant. The terms ‘passes the sponsorship test’ and ‘passes the support test’ are defined in cl 408.111 of Schedule 2 to the Regulations

29. In this case, Mr Nkouak Mbindzing was in Australia at the time his Subclass 408 visa application was lodged with the Department on 8 January 2020 and his proposed length of stay stated on the visa application form is more than 3 months. As such, his sponsoring organisation is required to be an approved sponsor of the relevant kind which ‘passes the sponsorship test’. In summary, a person ‘passes the sponsorship test’ if the following requirements are met (see cl 408.111):

    ·the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and,

    ·either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (the terms ‘adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B of the Regulations); and,

    ·if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.

30. Departmental records confirm that, at the time of lodgement of his visa application, Mr Nkouak Mbindzing’s sponsor Cooma United RLFC was a Temporary Activities Sponsor.  This sponsorship is due to expire on 29 November 2024.  The Tribunal has reviewed the Department’s Register of Sanctioned Sponsors and is satisfied that the Cooma United RLFC has not breached any of its sponsorship applications and, as such, there is no adverse information known to Immigration about the Club.

31. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(e) are met.

    Conclusion

32. In light of the above cumulative findings, the Tribunal is satisfied that cl 408.222(3) of Schedule 2 to the Regulations is met and, as such, cl 408.222 is met. Accordingly, it is also satisfied that cl 408.219A applies to Mr Nkouak Mbindzing and that the requirement in this clause is also therefore met.

33. Given the findings above, the appropriate course is to remit the matter to the Minister to enable consideration of the remaining criteria for the visa.

    DECISION

34. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl 408.219A of Schedule 2 to the Regulations; and,

    ·cl 408.222 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Subclass 408 – Temporary Activity
    ….

    408.21 Common criteria
    …

    408.219A   A clause in Subdivision 408.22 applies to the applicant.

    408.22 Alternative criteria

    Note: A clause in this Subdivision must apply to the applicant in order for the applicant to satisfy the primary criterion in clause 408.219A.

    ….

    408.222  (1)  This clause applies to the applicant if subclause (2) or (3) applies to the applicant.
    
    

    (2)  Sports trainee  This subclause applies to the applicant if:

    (a)  the applicant seeks to enter or remain in Australia to participate in sport by being trained by a sporting organisation (the relevant sporting organisation ) that is lawfully operating in Australia; and
    (b)  the applicant is a sportsperson or adjudicator who:

    (i)  is currently competing or adjudicating at the Australian national level, or equivalent; or
    (ii)  is endorsed by the relevant peak sporting body in Australia or overseas as having the demonstrated potential to compete or adjudicate at the Australian national level, or equivalent; and

    (c)  the relevant sporting organisation has an international reputation for training elite sportspeople or adjudicators; and
    (d)  the relevant sporting organisation is not a sporting club that, as its primary activity, competes in sporting competitions below the Australian national level for the sport; and
    (e)  either:

    (i)  the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
    (ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months--the relevant sporting organisation passes the support test in relation to the applicant.
    
    

    (3)  Elite player, coach, instructor or adjudicator  This subclause applies to the applicant if:

    (a)  the applicant seeks to enter or remain in Australia to be a player, a coach, an instructor or an adjudicator in relation to an Australian sporting team or sporting organisation; and
    (b)  the applicant has been invited to participate in the activity referred to in paragraph (a) by a sporting organisation (the relevant sporting organisation ) that is lawfully operating in Australia; and
    (c)  the applicant has entered into a formal arrangement that provides for the applicant to participate in the activity referred to in paragraph (a) for a period specified in the arrangement; and
    (d)  the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level; and
    (e)  either:

    (i)  the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
    (ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months--the relevant sporting organisation passes the support test in relation to the applicant.

    oOOo