Dai (Migration)

[2018] AATA 5703

Dai (Migration) [2018] AATA 5703 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuan Heng Dai

CASE NUMBER:  1702864

DIBP REFERENCE(S):  BCC2016/2079798

MEMBER:Jennifer Cripps Watts

DATE:17 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Distinguished Talent (Subclass 858) visa

Statement made on 17 December 2018 at 12:40pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – table tennis player– applicant no longer plays at an international level – not recognized at an international level as exceptional and outstanding – not still prominent in the area – Decision under review affirmed

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

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 February 2017 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 Distinguished Talent Class BX visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided specialised assistance to the Australian Government in matters of security.

3. The visa applicant (the applicant) applied for the visa on 16 June 2016. The delegate refused to grant the visa on the basis that cl.858.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the field of sport, specifically, table tennis.

4. The applicant’s visa was refused on 10 February 2017.  He applied for review by the Tribunal on 20 February 2017, within time, and provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 14 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Shaoping Zhang.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically table tennis.

9. To satisfy the criteria for the visa the applicant must meet the requirements of cl.858.212(2) or (4). Clause 858.212(2) requires that the applicant:

   (a)has an internationally recognized 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

   (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.

10. Clause 858.212(4) requires that an applicant has provided specialized assistance to the Australian Government in matters of security. There is no claim made that the applicant is seeking to meet this sub-clause. It is not applicable in this case.

11. The applicant applied for the visa on the basis of his record and achievements as a table tennis player.  He was nominated, in a Form 1000 that accompanied his visa application, by an Australian organisation, Table Tennis Australia.  The form was signed and dated by the Chief Executive Officer, Peter Marriott on 14 June 2016.

12. The Tribunal has considered all relevant facts and matters, including the documentary and oral evidence provided.  Regard has been had to matters raised in the delegate’s decision.

13. The applicant handed up two bundles of documents at the hearing.  He was asked if they were all documents that he had provided previously and he confirmed they were all duplicates. 

14. The applicant must meet all the criteria in cl.858.212(2).

    Exceptional and outstanding

15. An applicant must be recognised in their field (sport) at an international level as exceptional and outstanding. 

16. The applicant is a Chinese citizen born in 1996.  He first came to Australia holding a student visa in 2013 and, in 2018, he graduated with a Bachelor of Commerce (Accounting) from Curtin University in Australia.

17. The applicant attended the ShanDong LuNeng Table Tennis School in China from 2003 to 2007 where, ‘he had trained very hard and got great result’ and was said to be ‘a very talented young player with great potential’, according to a document provided from the school dated 2 April 2014.  The Tribunal accepts this.  He suffered a wrist injury in 2007 and said at the hearing, when he was about 10, left the school and returned to playing in provincial level teams, from 2008.  In 2010, the applicant was awarded a National Level 2 Athlete Certificate by the People’s Republic of China relating to placing sixth at the Heilongjiang Province 12^th Sports Meeting Table Tennis Contest.

18. The applicant came to Australia in 2013 to study and said at the hearing he completed a Bachelor of Commerce (Accounting) in 2018.  His student visa ceases in March 2019.

19. The applicant’s field of achievement is in the sport of table tennis.  From 2016 the Tribunal is not satisfied that he has sustained his record of achievement as a player.  He stills plays table tennis at a competitive national and regional level.  However, he no longer plays at an international level.

20. The applicant has been a member of the New South Wales (NSW) Table Tennis team.  He had some significant wins throughout 2014 in Australian, NSW and Regional tournaments.  On the evidence he has provided, the applicant’s tournament participation and achievements have diminished fairly significantly since then, both in Australia and internationally. 

21. In a letter dated 30 August 2017, from the former CEO of Table Tennis Australia, Peter Marriott, Mr Marriott addresses the difficulties that he says applicants who move countries face in terms of being able to play internationally.  He says that the International Table Tennis Association (ITTF) rankings are important but should not being use as a sole determining factor.  He says that athletes moving between countries sometimes have to go without playing international competitions for many years so they do not jeopardise their chance to play for their new country in Olympic and Commonwealth Games competitions immediately before they become eligible.  He refers to the significant expense to athletes who want to play in international competitions when they live outside Europe and Asia.  The Tribunal has considered Mr Marriott’s evidence and gives some weight to it.  It is accepted that these are matters may have made it difficult for the applicant to sustain a level of international recognition.  There is no probative evidence before the Tribunal that suggests that the applicant has an ITTF ranking, a national ranking, or that he is a likely prospect for the Commonwealth or Olympic Games.

22. The applicant has chosen live and study in Australia.  If this has prevented him from being able to participate in table tennis tournaments in Asia and Europe to keep his recognition and success at an international level, that is a matter for him.  The Tribunal does not suggest it is an easy choice to have made.  The applicant gave evidence at the hearing that because he was studying a Bachelor of Commerce (Accounting) in Australia, this prevented him from being able to travel overseas to play in table tennis tournaments because of conflicts with his study schedule which coincides with the international table tennis ‘season’, which runs from around March to October each year.  However, acknowledging his study commitments, it does not alter the fact that the applicant’s international recognition has diminished and not been sustained since he applied for the visa in 2016.  He has turned to coaching table tennis in Sydney, but the Tribunal considers that his record as a coach is at best no more than as an emerging talent, notwithstanding his experience and success playing table tennis previously, rather than that of someone who is at the top echelon of the sport.  The Tribunal has given some weight to the claim that because the applicant attended the LuNeng Table Tennis School in China, he brings with him some unique skills and insights relating to his coaching style.  The applicant left the LuNeng School when he was about 10.  The Tribunal, considering the applicant’s age at the time he left the school, together with the effluxion of time (around 12 years), does not give significant weight to it with regard to the coaching he is doing in Sydney. 

23. The statutory declaration of Shaoping Zhang, sworn on 7 December 2018, has been considered.  Mr Zhang also attended the hearing and gave oral evidence.  He himself was granted a Distinguished Talent visa in 2015 in the sport of table tennis.  He says, essentially, that the applicant provided him with skillful coaching in 2016 and 2017 about two or three times a month.  It is accepted that the applicant coached Mr Zhang and that he coaches other players as well.  The applicant played doubles with Shaodong Zhang at the 2016 NSW Open Championships Sports Halls, Olympic Park Event 21 – U21 Men’s Doubles and won.  He came third in the singles. 

24. There is no probative evidence before the Tribunal that the applicant has coached any other table tennis players who have an outstanding and exceptional record of achievement at national or international level.  The Tribunal considers it reasonable to think that someone who has played table tennis at national and international level and is coaching table tennis would also have some success at the national and international level as a coach and be recognised internationally for his table tennis coaching, as well as a player in this applicant’s circumstances, if they were to be considered to be in the top echelon of their field.

25. The applicant gave evidence at the hearing that he has not participated in any international competitions in 2016, 2017 or 2018.  The Tribunal accepts it may have been difficult for the applicant to arrange travel, partly because the tournaments conflicted with the applicant’s study.  However, it is reasonable to expect that an athlete applying for a Distinguished Talent visa on the basis of having a record of international achievements that are exceptional and outstanding would sustain that level of achievement, rather than risk losing prominence in the area.  It is the Tribunal’s view that the applicant has not sustained prominence in the sport of table tennis internationally.

26. There were submissions provided that the applicant competed in the 2017 NSW Open Championships U21 Men’s Singles and defeated Erny Tsao who, it is claimed, has an internationally recognized record of exceptional and outstanding achievement in table tennis, including wins at international tournaments in 2016 and 2017.  The Tribunal accepts, on the face of it, that Mr Tsao is a world ranked player and that the applicant beat him at the tournament.  However, this one match in a NSW event does not strengthen the applicant’s claim that he has an international record of exceptional or outstanding talent.

27. The Tribunal has had regard to the submissions made and to all relevant facts and matters provided by the applicant.   He had some success in Australia and internationally up to the time of application.  He has continued to compete, at a regional level for the most part, in Australia since then and also coaches table tennis at PCYC in Hornsby.   He has not, in the Tribunal’s view, sustained a level and record of achievement as a player or coach that supports a finding that he is recognized at an international level as exceptional and outstanding.

28. For these reasons, the Tribunal is not satisfied the applicant meets cl.858.212(2)(a).

    Still prominent in the area

29. Applicants must have current prominence in their area.  Relevant to this matter, that is the sport of table tennis.  ‘Prominent’ is not defined in the Regulations.  However, referring to Departmental policy, ‘prominent’ should be accorded ordinary dictionary meaning within context; appropriate synonyms are ‘conspicuous’ and ‘important’.

30. For the purpose of assessing whether the applicant is ‘still prominent’ in the area the applicant would need to have a record of international exceptional and outstanding achievement.  For reasons given above, the Tribunal was not satisfied the applicant meets this requirement.  It logically follows, because the Tribunal is not satisfied that the applicant is recognised internationally for exceptional and outstanding achievement, that he cannot be and is not still prominent in the area.

31. For these reasons, the applicant does not meet cl.858.212(2)(a).

32. The Tribunal has made findings that the applicant does not meet cl.858.212(2)(a) or (b). He must meet all the criteria in cl.858.212(2). It is therefore not necessary to assess him against cl.858.212(2)(c)-(e). The applicant was not younger than 18 or over 55 when he lodged the visa application. Clause 858.212(2)(f) is not applicable.

33. As the Tribunal has found that the applicant does not satisfy the requirements of cl.858.212, the decision under review must be affirmed.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Distinguished Talent (Subclass 858) visa.

    Jennifer Cripps Watts
    Member