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

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).
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.
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.
The applicants were represented in relation to the review by their registered migration agent, Ms Katherine Keene. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crusinski (Migration)

Details

AGLC: Crusinski (Migration) [2019] AATA 5332
Case: [2019] AATA 5332
Decision Date: 9 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, made by an applicant based on their achievements in Brazilian Jiu Jitsu. The applicant sought review of a decision by a delegate of the Department of Immigration to refuse the visa application.

The central legal issue before the Tribunal was whether the applicant met the requirements of cl.858.212(1) of the Migration Regulations 1994, specifically subclause (2), which mandates an internationally recognised record of exceptional and outstanding achievement in a sport, continued prominence in that area, and the capacity to be an asset to the Australian community, among other criteria. The delegate had found that while the applicant had achieved a black belt in Brazilian Jiu Jitsu, participated in and placed in various national and international tournaments, and worked as a coach, these achievements were not sufficient to demonstrate exceptional and outstanding accomplishments on an international scale.

The Tribunal concluded that the delegate's assessment of the applicant's achievements in Brazilian Jiu Jitsu, both as a competitor and a coach, did not sufficiently establish whether they met the threshold for an "internationally recognised record of exceptional and outstanding achievement" as required by cl.858.212(2). Consequently, the Tribunal remitted the decision not to grant the visa to the Department for reconsideration, with a direction that the applicant must meet cl.858.212 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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; andNote: 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. The applicant has not made any claims in relation to cl.858.212(4). In determining whether the visa applicant meets cl.858.212(2), all of the stated subclauses must be met. 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. 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

Decision

Reasons for decision

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 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 DunnMember

Ratio Decidendi

Legal Principle Established

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