Crusinski (Migration)

[2019] AATA 5332

Crusinski (Migration) [2019] AATA 5332 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Christiano Leonardo Crusinski
Mrs Katia Ramalho Crusinski
Master Felipe Ramalho Crusinski

CASE NUMBER:  1905801

DIBP REFERENCE(S):  BCC2018/1403341, BCC2018/1586180

MEMBER:Phoebe Dunn

DATE:9 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision not to grant the primary or secondary applicants a Distinguished Talent (Residence) (Class BX) visa, with the direction that they meet the following criteria:

·     the applicant meets cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa; and

·     the second and third named applicants meet cl.858.311 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 09 August 2019 at 2:24pm

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – exceptional and outstanding achievement – Brazilian Jiu Jitsu – demonstrated achievement – coaching and refereeing – internationally recognised – asset to community – documentary evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 858.212(2), 858.311

CASES

Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293

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 21 February 2019 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 23 March 2018. 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 11 July 2019 to give evidence and present arguments. Prior to the scheduled hearing the Tribunal received updated submissions and supporting evidence from the applicant. The Tribunal also received oral evidence from Mr Carlos Eduardo de Souza Vieira and Mr Eduardo Leitao de Sa. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. Further submissions were received by the Tribunal on 8 August 2019.

4. The applicants were represented in relation to the review by their registered migration agent, Ms Katherine Keene. The representative attended the 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 23 March 2018. 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) 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 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 21 February 2019. 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 Brazilian Jiu Jitsu black belt graduating in 2014, and had participated in regional tournaments in Brazil from 2005 to 2013 before competing and placing in his first International Brazilian Jiu Jitsu Federation officiated championship in Sao Paulo in 2013. The delegate also noted that after moving to Australia in June 2016 to further his study of English, the applicant had begun working part time as a coach for the Brazilian Jiu Jitsu Academy Cia Paulista, assisting his students to compete and place in national and international tournaments, while at the same time continuing to compete himself and attaining placings in various national championship tournaments during 2017, the most notable being champion Master 3 Feather at the Pan Pacific Jiu Jitsu IBJJF Championship in 2017.

11. The delegate acknowledged that the applicant’s skills had enabled him to gain employment as a Brazilian Jiu Jitsu coach and to compete in both Brazil and Australia. However, although commendable, the delegate found that this was not sufficient to meet the requirements of cl.858.212(2), as it was not sufficient to demonstrate exceptional and outstanding achievements on an international scale as either an athlete or a coach. The delegate noted that there was minimal evidence to measure the applicant’s achievements against those of other athletes and coaches to establish the requisite internationally recognised record of exceptional and outstanding achievement.

    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 [2000] FCA 293 (Gaffar’s case) 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. 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. The Tribunal also notes that since Gaffar’s case was decided the relevant provision now requires the applicant to demonstrate a record of outstanding as well as exceptional achievement.

17. 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.

18. 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.

19. 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.

    Applicant’s evidence

20. The Tribunal has had regard to submissions and supporting evidence provided to the Department in support of the applicant, and updated submissions provided at review. The submissions contain details of Mr Crusinski’s achievements to the date of the application, including written references attesting to Mr Crusinski’s capabilities as an athlete and a coach, and written and photographic evidence of tournament wins and placings.

21. The applicant is a professional Brazilian Jiu Jitsu athlete and coach from Brazil. The submissions detail that the applicant started training and competing in Brazilian Jiu Jitsu in 2003 in Brazil at 29 years of age, training under world champion Mr Eduardo Leitao de Sa (fifth degree black belt), at one of the largest centres in Brazil, Cia Paulista. In June 2016, the applicant came to Australia at the age of 43, to study English and train with the Australian arm of the Cia Paulista, under head coach Mr Carlos Vieira (fourth degree black belt). Since coming to Australia the applicant has been training and coaching at Cia Paulista, as well as competing where possible.

22. In oral evidence before the Tribunal, the applicant noted that while he was relatively old when he commenced practising Brazilian Jiu Jitsu at the age of 29, he became competitive quickly, achieving results at national and international competitions in Brazil, Portugal and Australia. Evidence before the Tribunal shows that the applicant achieved the following results at international competitions prior to the date of his application:

Year	Competition*	Location	Organiser	Status	Place
2005	European Regional Championship	Lisbon, Portugal	FPJJB (Federation Portuguesa Jiu Jitsu Brazilian)	International	Champion (white belt)
2006	Jiu Jitsu International Championship VII (Gi)	Sao Paulo, Brazil	PSAJJ (Paulista Sports Association Jiu Jitsu)	International	Champion
2007	Jiu Jitsu International Championship VIII (Gi)	Sao Paulo, Brazil	PSAJJ	International	Third Place
2008	Jiu Jitsu International Championship IX (Gi)	Sao Paulo, Brazil	PSAJJ	International	Third Place
2009	Jiu Jitsu International Championship X (Gi)	Sao Paulo, Brazil	PSAJJ	International	Vice Champion
2010	Jiu Jitsu International Championship XI (Gi)	Sao Paulo, Brazil	PSAJJ	International	Champion
2011	Jiu Jitsu International Championship XII (Gi)	Sao Paulo, Brazil	PSAJJ	International	Vice Champion
2012	Jiu Jitsu International Championship XIII (Gi)	Sao Paulo, Brazil	PSAJJ	International	Third Place
2013	Jiu Jitsu International Championship XIV (Gi)	Sao Paulo, Brazil	PSAJJ	International	Champion
2013	Jiu Jitsu International Championship XIV (Open Weight – Gi)	Sao Paulo, Brazil	PSAJJ	International	Third Place
2013	Sao Paulo Open (Gi)	Sao Paulo, Brazil	IBJJF	International	Vice Champion
2014	Copa International Championship (Gi)	Sao Paulo, Brazil	PSAJJ	International	Champion

*Gi refers to when the white uniform is worn, no Gi is when the uniform is not worn

1. Evidence before the Tribunal shows that the applicant has achieved the following results at national and international level competitions since coming to Australia:

Year	Competition	Location	Organiser	Status	Place
2017	Melbourne Open (Gi)	Melbourne, Australia	IBJJF	International	Champion
2017	Melbourne Open (Gi – Open Weight)	Melbourne, Australia	IBJJF	International	Second Place
2017	Melbourne Open (No Gi)	Melbourne, Australia	IBJJF	International	Champion
2017	Australian National Championship (Gi)	Melbourne, Australia	ABJJF (Australian Brazilian Jiu Jitsu Federation)	Domestic	Third Place
2017	Pan Pacific Championship (Gi)	Melbourne, Australia	IBJJF	International	Champion
2018	Victorian State Championship (Gi)	Melbourne, Australia	ABJJF	Domestic	Second Place
2018	Victorian State Championship (Gi –Open Weight)	Melbourne, Australia	ABJJF	Domestic	Second Place
2018	Australian National Championship (Gi)	Melbourne, Australia	ABJJF	Domestic	Third Place
2018	Pan Pacific Championship (Gi)	Melbourne, Australia	IBJJF	International	Third Place
2018	Pan Pacific Championship (No  Gi)	Melbourne, Australia	IBJJF	International	Second Place
2019	Victorian State Championship (Gi)	Melbourne, Australia	ABJJF	Domestic	Second Place

1. At the hearing the Tribunal received extensive evidence from the applicant and witnesses about the sport of Brazilian Jiu Jitsu, and the process of progressing through the levels and attaining the next belt grading. In particular it was noted that competing in and winning competitions does not result in an athlete achieving a higher level. Progression through the belts is achieved through effluxion of time, and demonstration to coaches and the governing bodies of commitment and capability.

2. The submissions note that the applicant currently holds a black belt (first degree), a ranking which he attained in 2017. The submissions outline the process required to progress through the belt rankings to achieve the applicant’s level of black belt (first degree), requiring participation in the sport for a total of fourteen years as prescribed by the international standards. Mr Vieira’s submission states that this places the applicant at a much higher level than other coaches in Australia as it is a fairly new sport in Australia. The applicant noted that it took around five years between degrees in the black belt, and that he could expect to attain the next level of black belt (second degree) next year, in 2020.

3. At the hearing the applicant and witnesses also described the level of competition in the sport of Brazilian Jiu Jitsu in Brazil, noting that it is the most popular sport in Brazil, with numerous competitors and fierce competition. The Tribunal was informed that achieving the results that the applicant had attained in competitions in Brazil in a highly competitive environment, particularly within the short period of time that the applicant had been practising and competing, was demonstrative of his exceptional skills and talent.

4. Since coming to Australia the applicant has competed in and achieved placings in domestic competitions organised by the Australian Brazilian Jiu Jitsu Federation (ABJJF) and the International Brazilian Jiu Jitsu Federation (IBJJF), some of which have international ranking (as noted in the tables above). In oral and written submissions the applicant has noted that he has not travelled internationally to compete due to financial hindrances and a misunderstanding of his travel restrictions associated with his visa. Evidence before the Tribunal demonstrates that the applicant is currently ranked 17^th in Australia by the ABJJF. At the time of application, his Australian ranking was 12^th for Master Black No Gi and 20^th for Master Black Gi. His current international ranking under the IBJJF is 308. In submissions to the Tribunal it is noted that the rankings are derived from the number of competitions an athlete participates in and are not necessarily an indicator of the talent or status of the athlete. The Tribunal also notes the applicant intends to continue to compete, and is registered to participate in the Australian National Championships on 10 August 2019.

5. Supplementary evidence has been received by the Tribunal from the ABJJF and the IBJJF, confirming the applicant’s achievements in competitions, awards and rankings, as follows:

   ·Letter from Andre Fernandes, Executive Director, IBJJF (California), chief official and technical director of the IBJJF and the United States Brazilian Jiu Jitsu Federation (dated 8 February 2019);

   ·Letter from Eduardo Leao (black belt fifth degree), Paulista Sport Association attesting to the international status of awards achieved by the applicant in Brazil (dated 19 July 2019); and

   ·Letter from Mr Peter de Been, President ABJJF, attesting to the applicant’s ranking, his active membership of the ABJJF and his coaching and refereeing (dated 29 July 2019).

6. The submissions also identify the applicant’s record as a coach of Brazilian Jiu Jitsu. The submissions provide that the applicant’s achievements as a coach can be established through the athletes he has trained and the results those athletes have achieved. The submissions identify that since coming to Australia the applicant has been employed part time at the Brazilian Jiu Jitsu Academy Cia Paulista Australia, with an offer of full-time employment at the academy should the applicant’s visa application be successful. In 2017 and in 2018 the applicant was presented with awards from Cia Paulista Australia in appreciation of his outstanding service as a coach. In oral and written evidence before the Tribunal the applicant noted that coaching was his passion, and that he was committed to bringing to ‘people the benefits of sport and train and prepare champions. And if I have the opportunity to stay in Australia I want to represent her in the international championships and I want to prepare athletes to present her as well.’ [Tribunal file, Folio 121]

7. In support of the application, Mr Vieira’s written submission highlights that to fulfil its strategic objectives, the Cia Paulista Australia academy ‘supports the involvement of Brazilian athletes of outstanding a high calibre that contribute to improve the international competitiveness of Australian in the Brazilian Jiu Jitsu sport’, and that is why he is supporting the applicant. Mr Vieira attests to the applicant’s talent as an athlete and coach, indicating that the applicant has internationally recognised standing as an athlete, having won gold medals in international competitions such as Regional European Championships, International Championships, Melbourne Open and Pan Pacific Championships.

1. The Tribunal also notes that the applicant is a certified Brazilian Jiu Jitsu referee, and has been certified by the IBJJF as a referee since 2017.

2. The submissions also refer to the applicant’s passions extending beyond training, competing, coaching and refereeing. In 2014 the applicant co-founded the “Born to Win” social project at the CEU-Pq. Bristol Unit in Brazil, together with two friends. This program is focused on utilising the benefits of Brazilian Jiu Jitsu for underprivileged children and children with special needs, such as children with autism, depression and post-traumatic stress disorder. The applicant has continued this work in Australia, and the submissions indicate that he plans to create a similar project focused on Australian disadvantaged youth. At the hearing the applicant described his mission in life is to help others, through the ‘art’ of Brazilian Jiu Jitsu.

   Evidence of Mr Carlos Eduardo de Souza Vieira

3. Mr Carlos Eduardo de Souza Vieira is an internationally recognised champion of Brazilian Jiu Jitsu and is the owner and sole Director of Cia Paulista Australia where the applicant works as a coach. Mr Vieira is also the applicant’s nominator. Cia Paulista Australia is linked to Cia Paulista International, located in Brazil, where Mr Vieira is also a Director.

4. At the hearing Mr Vieira gave extensive evidence of the talent of the applicant, and his potential. Mr Vieira noted his extensive titles, and considered the applicant to have the potential to continue to achieve success in national and international competitions. Mr Vieira attested to the applicant being one of the highest ranking athletes in Australia, with an international record that surpassed most others in Australia. Mr Vieira spoke about the importance of the applicant continuing to compete, both for his own practice and as a role model for his students. Mr Vieira noted the applicant’s extensive contribution to Australia through his coaching and commitment to furthering the sport of Brazilian Jiu Jitsu in Australia. Mr Vieira described the passion the applicant brings to his own practice and his coaching, and that his international reputation and continued competitive success is one of the key reasons Mr Vieira wants him working as a coach at Cia Paulista Australia.

   Evidence of Mr Eduardo Leitao de Sa

5. Mr Eduardo Leitao de Sa is the head coach of Brazil Cia Paulista, and President of the Brazilian Jiu Jitsu Association in Brazil (black belt fifth degree) and an internationally recognised champion. Mr Leitao de Sa was the applicant’s head coach in Brazil from the time he commenced the sport to when he achieved his black belt ranking and came to Australia. In a written submission dated 22 January 2018, Mr Leitao de Sa attested to the applicant’s ‘spectacular international history’ in the sport, and record of sustained achievement, describing the applicant as having ‘exceptional talent’.

6. Mr Leitao de Sa also presented oral evidence to the Tribunal by telephone from Brazil. Mr Leitao de Sa described in detail the applicant’s progression through the belt gradings, and his talent and success at national and international competitions in Brazil. Mr Leitao de Sa noted that the applicant was internationally recognised due to his success at IBJJF-organised competitions in Brazil, Portugal and Australia and noted his talents both as an athlete and a coach. Mr Leitao de Sa stated that many of the students taught by the applicant have since gone on to become champions, and also noted the importance of the social project in Brazil.

7. Independent evidence in support of the applicant was provided by letter by the following:

   ·     Mr Andrei Osti Andrezzo, the Head Coach of the Tetris Team in Brazil. He attested to the applicant being ‘an exceptional talent in his art’. Mr Andrezzo has known the applicant since he started Jiu Jitsu in 2003, and noted that he is considered at the ‘highest levels in his category and known for his extraordinary records in international titles’, and ‘he stands out as among the best in the world in this category’ (dated 20 March 2018);

   ·     Mr Eduardo Santoro, a renowned Jiu Jitsu competitor with four national, four Pan American, and two European and World Championship titles, Head Coach at the Excellence School, Torrance, California, USA, and a black belt (fourth degree). Mr Santoro has known the applicant since he commenced Jiu Jitsu in Brazil and attested to the applicant’s internationally recognised record of ‘professional and exceptional talent in his category’ (dated 22 January 2018);

   ·     Mr Andre Glodzinski, Head Coach, Sacramento California Cia Paulista, black belt (third degree) attested to the applicant’s impressive rankings in ‘some of the most distinguished Jiu Jitsu competitions in the world’ (dated 15 February 2018);

   ·     Mr Waldomiro Perez Junior, Head Coach, Global Cia Paulista, California, America, the founder and CEO of Cia Paulista Jiu Jitsu and MMA in Sao Paulo and the co-founder and vice president of the Federation of Sao Paulo Jiu Jitsu, who attested to the applicant’s international championship status (dated 19 February 2018).

   References

8. In support of the applicant’s coaching achievements the Tribunal has received letters of support from:

   ·     Sureerat Yodrak, attesting to his attributes as a coach, helping him achieve first place in the Victorian Championships;

   ·     Mr Stirling R Larkin, dated 26 October 2017, a former National Australian Olympic Freestyle Wrestling Champion with world ranking status, attesting to his attributes as a coach, assisting him to transition from wrestling to Brazilian Jiu Jitsu;

   ·     Mr Jake Aaron Matthews, dated 14 May 2019, attesting to his coaching capabilities;

   ·     Mr Darryn Gunn, dated 14 May 2019, attesting to his capabilities as a coach of both his children and himself;

   ·     Mr Nathaniel Souza Connell, dated 20 April 2018, attesting to his capabilities as a coach, assisting him to place first in the White Belt division of the Melbourne Open and third in the National Championships.

9. The Tribunal received letters of support from members of the Brazilian Jiu Jitsu community attesting to the applicant’s contribution through the “Born to Win” social project, focused on underprivileged children and children with special needs:

   ·Mr Marco Coppini, the father of a student in the program who has a disability. Mr Coppini attested to the importance of the program for social inclusion, coordination and self-esteem.

   ASSESSMENT AGAINST THE CRITERIA

10. 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

11. 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 sport of Brazilian Jiu Jitsu in Brazil, with wins and placings in many international competitions. Since coming to Australia, the applicant has continued to achieve significant results in national and international competitions, placing him in the top echelons of his sport in Australia. While he has not competed as regularly since coming to Australia, or travelled internationally to compete, the Tribunal considers that the applicant has demonstrated the required record of achievement, including Champion title in 2017 and second placing in 2018 at the internationally ranked Pan Pacific Championships, as well as Champion title at the internationally ranked Melbourne Open in both the Gi and no Gi categories and second place in the open weight category at the same competition in 2017. The Tribunal is persuaded by the independent oral and documentary evidence before it 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, and that the applicant has an internationally recognised record of exceptional and outstanding achievement in his field.

12. 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 Brazilian Jiu Jitsu and did so at the time of application. The Tribunal also noted the applicant’s past and ongoing contribution to the sport through his coaching and refereeing and notes documentary evidence of his students achieving significant results at national and international ranked competitions.

13. Based on the evidence before it, the Tribunal is satisfied that at the time of application the applicant had a record of exceptional and outstanding achievement as a Brazilian Jiu Jitsu competitor that was internationally recognised.

14. Therefore the Tribunal is satisfied that the applicant meets the requirements of cl.858.212(2)(a).

15. The Tribunal has also heard evidence of the applicant’s ongoing potential as both an athlete and a coach, including from his current and former coaches and the governing bodies IBJJF and ABJJF. The Tribunal notes the applicant’s intention to continue to compete, including internationally, and his desire to represent Australia in international competitions. The Tribunal notes that while the applicant’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?

16. 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 Brazilian Jiu Jitsu. This includes his most recent success at the internationally ranked Pan Pacific Championship, achieving Champion title in 2017 and second placing in 2018, as well as at the internationally ranked Melbourne Open, achieving Champion title in both the Gi and no Gi categories and second place in the open weight category at the same competition in 2017. On top of this he has recently achieved third placing at the internationally ranked Pan Pacific Championships in 2019 and is scheduled to compete in the Australian National Championships on 10 August 2019. Letters from the governing bodies IBJJF and ABJJF and his current and former coaches also attest to his current prominence.

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

    Asset to the Australian community

18. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. The Tribunal notes in the evidence before it that as well as the applicant’s personal achievements in the sport of Brazilian Jiu Jitsu, the applicant is making a positive contribution to the Australian community as a player, coach and referee. Evidence presented to the Tribunal at the hearing by Mr Vieira, together with numerous letters received in support of his application attested to the applicant being a very valued member of the Australian community, encouraging, supporting, mentoring and coaching other athletes, refereeing games and contributing to the community generally. The Tribunal also notes the evidence before it of the applicant’s work on a social project in Brazil supporting disadvantaged youth and his desire and commitment to continue that work in Australia.

19. Accordingly the Tribunal finds that cl.858.212(2)(c) is met.

    Obtaining employment or becoming established independently in Australia

20. 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 the applicant is currently a part-time coach at Cia Paulista Australia, and has been offered full-time employment on the granting of a visa.

21. Accordingly, the Tribunal is satisfied that cl.858.212(2)(d) is met.

    Completed approved form 1000

22. 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 Mr Carlos Eduardo de Souza Vieira, a former international champion with many titles including Brazilian Champion, American Champion, European Champion, Australian Champion and Pan Pacific Champion. The Tribunal finds that the nominator has a national reputation in the sport of Brazilian Jiu Jitsu. As such cl.858.212(2)(e) is met.

23. As the applicant meets all of the requirements of cl.858.212(2) the Tribunal finds that the applicant meets the requirements in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

24. As the second and third named applicants are members of a family unit of the applicant, the Tribunal finds that they are able to meet the requirements of cl.858.311.

25. Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for the Subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the granting of Subclass 858 visas.

    DECISION

26. The Tribunal remits the decision not to grant the primary or secondary applicants a Distinguished Talent (Residence) (Class BX) visa, with the direction that they meet the following criteria:

    ·the applicant meets cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa; and

    ·the second and third named applicants meet cl.858.311 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

    Phoebe Dunn
    Member