CRISTIANO MORETZSOHN (Migration)

[2018] AATA 2016

CRISTIANO MORETZSOHN (Migration) [2018] AATA 2016 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leonardo CRISTIANO MORETZSOHN

CASE NUMBER:  1607554

DIBP REFERENCE(S):  BCC2015/885437 BCC2016/2251538

MEMBER:Sheridan Lee

DATE:16 May 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 applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations

Statement made on 16 May 2018 at 11:29am

CATCHWORDS
Migration – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – Rowing coach – Record of exceptional and outstanding achievement – Prominent in the field of rowing at the time of application – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65,
Migration Regulations 1994, Schedule 2, cl 858.212

CASES
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Zhang v MIMA [2007] FMCA 664

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 5 May 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 19 March 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations.

3. The delegate did not accept that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport of rowing. In particular, the delegate noted that ‘the evidence presented thus far is more reflective of a vice coach, who over time may establish themselves as a recognised rowing coach in the top echelons of their field’.

4. The applicant applied to the Tribunal on 26 May 2016 for a review of the delegate’s decision and a copy of the primary decision record was included with the application for review. The Tribunal has before it the departmental file relating to the application and material provided to the Tribunal by the applicant.

5. The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Phillip Jurjevich, Director of Rowing at Trinity College, Perth.

6. The nominator for the applicant’s subclass 858 visa, Mr Antonio Maurogiovanni, did not attend the hearing to provide evidence. On the day of the hearing, a written statement from Mr Maurogiovanni was supplied to the Tribunal outlining that he has taken up employment as the High Performance Director at Rowing Ireland and as such was unable to attend.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and therefore clause 858.212. This clause relevantly provides:

   858.212

   (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:

   a profession;

   a sport;

   the arts;

   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.

   (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.

   (4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:

   (a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

   (b) the Director-General of Security;

   the applicant has provided specialised assistance to the Australian Government in matters of security.

10. The applicant has not asserted that he provided specialised assistance to the Australian Government in matters of security at the time of application on 9 March 2016. Accordingly, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.

11. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically rowing.

    Internationally recognised record exceptional and outstanding achievement

12. The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 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 that the record 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. In addition, the Courts have held that in determining whether the applicant has a 'record of exceptional and outstanding achievement', the criterion requires demonstrated excellence in the relevant occupation which is out of the ordinary. Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs, French J observed that the concept of an 'exceptional record of achievement' did not require an applicant to be a 'national living treasure'.[2]

    [2] Gaffar v MIMA [2000] FCA 293 at [20].

16. As a result, the Tribunal acknowledges that 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. The Tribunal is aware that in assessing whether the applicant meets the requirements of paragraph 858.212(2)(a), the concept of onus of proof is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision maker is also not required to make the applicant's case for it, nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[3]

    [3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

18. The applicant has submitted evidence demonstrating that he has achieved a number of qualifications relevant to his career as a rowing coach:

    ·Bachelor of Physical Education, State University of Rio de Janeiro, 1996

    ·Rowing Coach Accreditation Level 3, Fédération Internationale des Sociétés d’Aviron (FISA) (The World Rowing Federation), 1997

    ·Master of Science, specialising in Human Kinetics, Universidade Castelo Branco, 2011

19. In addition to the above, upon arrival in Australia the applicant completed Certificates III and IV in Fitness at the Australian College of Sport and Fitness. At the hearing, he explained that he primarily undertook these courses to improve his vocabulary in the subject area and improve his ability to train English speaking athletes.

20. In Brazil, the applicant was head coach for the Club de Regatas Vasco da Gama from 1997 to 1999. During his time as coach, the club achieved titles for Brazilian Rowing Champion, State Rowing Champion, Junior State Rowing Champion and Children State Rowing Champion in 1998. In a letter of support, Mr Marcos Aurelio Costa Amorim, Coach of the Brazilian National Rowing Team and Head Coach at Club de Regatas Flamengo, outlined that the applicant continued to assist him with national crew technical training for the 2016 Olympic Games from Australia via skype.

21. The applicant has supplied numerous letters of support, including a letter dated 9 March 2015 from Jose Carlos Goncalves Sobral Junior, former member of the National Brazilian Rowing Team, representing Brazil at the Athens Olympic Games. In his letter, Mr Sobral stated that the applicant made a great contribution to his sporting development.

22. The applicant relocated to Australia in 2011 and commenced working at the Swan River Rowing Club. He is currently employed as a coach at the Trinity College Rowing Club. The applicant has provided a number of letters of support from former students of Trinity College and the Swan River Rowing Club, including a letter from Cameron Fowler (who has competed for Western Australia in the lightweight mens fours and for Australia in the under 23 mens lightweight four) outlining that after following the applicant’s advice he made significant improvements in his rowing, and a letter from Ashlee Rowe who went on to represent New Zealand in three World Rowing Cups, who provided her view that the applicant would be an asset to rowing in Australia.

23. The applicant has trained athletes that have gone on to a number of achievements at state, national and international level. He has post graduate qualifications in the field that set him apart from many other sporting coaches. In addition, he has an international accreditation as a FISA Level three coach. His expertise in physiology, sports science and technical theory have no doubt been an asset to the athletes he has trained. On the evidence before it, the Tribunal is satisfied that at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport of rowing. As such, the Tribunal is satisfied that cl.858.212(2)(a)(ii) is met.

    Is the applicant still prominent in the area?

24. At the time of application, the applicant was employed as a rowing coach at Trinity College in Western Australia, where he continues to work. The Tribunal heard evidence from Mr Jurjevich, Director of Rowing at Trinity College who outlined that all students at the Trinity College Rowing Club complete a rotation with the applicant as part of their training. This training is an integral part of the development of rowing technique, which provides a foundation for students’ development as athletes.

25. Trinity College has an outstanding record of rowing achievements, with students going on to secure scholarships at top-tier international universities and compete in the Olympics representing Australia.

26. As outlined above, the applicant was able to supply the Tribunal with numerous letters of support from members of the international rowing community who attest to his skill as a coach. One such letter was from the applicant’s nominator, Mr Maurogiovanni, who has worked as coach of the Australian Rowing Team for the Rowing World Cup and is a member of FISA. Mr Maurogiovanni provided his opinion that the applicant is an above average professional coach who has many years experience, including making a contribution to the improvement of rowers’ techniques in Western Australia.

27. In submissions to the department on 13 October 2015, the applicant’s representative highlighted that Australia is one of the top performing countries for rowing in the world. At that time, Australia was ranked fourth in the world. This context is relevant when considering the endorsements provided for the application by leading Australians.

28. The Tribunal is satisfied on the totality of the evidence that the applicant was a highly regarded row coach who was still prominent in his field at the time of application. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(b).

    Asset to the Australian Community

29. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. The Tribunal has before it letter of support from Mr Daniel Tackenberg, Chief Executive Officer of Rowing WA, dated 12 October 2015 providing his opinion that the applicant has a strong history in high performance rowing and athletic coaching and would be a valuable addition to the coaching personnel in Australia, particularly in Western Australia.

30. In many of the letters referred to above, athletes and professional coaches expressed a view that the applicant would be an asset to the Australian community should he be successful in securing a visa and make a significant contribution to the development of the sport in Western Australia.

31. At the hearing, the applicant outlined that he planned to continue with his coaching if his visa were to be approved. 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.

    Obtaining employment, or becoming established independently, in Australia

32. Clause 858.212(2)(d) requires the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area. The applicant is currently employed at Trinity College in Western Australia, where he was employed at the time of application. As previously highlighted, the Director of the program gave evidence to the Tribunal that Trinity College is a premier college for rowing in Australia, with students going on to a number of national and international achievements.

33. In addition to providing a number of job advertisements to demonstrate the availability of positions as a rowing coach in Australia, the applicant supplied a letter from the Bundaberg Rowing Club, dated 5 October 2015 expressing an interest in employing the applicant as a head coach should his visa be approved. Bundaberg Rowing Club has previously engaged the applicant to travel to their club to provide practical and theoretical training on high-level rowing techniques and methodology.

34. The Tribunal is satisfied that the applicant would have no difficulty obtaining employment in Australia as a rowing coach. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

    Completed approved form 1000

35. The final subclause within cl.858.212 that must be met is cl.858.212(2)(e). This subclause requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed approved form 1000 signed by Mr Maurogiovanni, an Australian citizen, accompanied the application. Mr Maurogiovanni attested to the applicant’s record of achievement in the field of rowing. As such cl.858.212(2)(e) is met.

36. 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.

    DECISION

37. The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations.

    Sheridan Lee
    Member