Dewiana (Migration)

[2020] AATA 4198

Dewiana (Migration) [2020] AATA 4198 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sindy Dewiana
Mr Agung Gumilar Saputra
Miss Kayla Zahra Saputra
Miss Keisha Triana Saputra

CASE NUMBER:  1731503

DIBP REFERENCE(S):  BCC2016/2821238

MEMBER:John Cipolla

DATE:25 September 2020      

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant a Distinguished Talent (Residence) class BX visa.

Statement made on 25 September 2020 at 12.38pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – rhythmic gymnastics – former athlete at the national and international level – ongoing prominence in the field – rhythmic gymnastics beginner coach and judge – decision under review affirmed

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

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 29 November 2017 to refuse to grant the first named visa applicant (hereinafter referred to as the applicant) a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 August 2016. The delegate refused to grant the visa on the basis that the delegate could not be satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport of rhythmic gymnastics as an athlete or as a rhythmic gymnastics coach.  The delegate noted that the applicant had been awarded a number of accolades at the TASA Games in 1992, the ASEAN School Championships in 1994 and the South East Asian Games in 1993 and 1997. The delegate noted that since moving to Australia in 2014 the applicant had obtained accreditation as a rhythmic gymnastics beginner coach and judge. The delegate concluded that early on in her career the applicant had achieved international success as a rhythm gymnastics performer and athlete, but the last success was achieved in 1997 and the delegate concluded that the applicant was unable to demonstrate ongoing prominence in the field.

3. The applicant lodged an application for review with the Tribunal on the 13 December 2017.

4. The applicant appeared before the Tribunal on 16 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. At the outset of the review hearing the Tribunal explained in detail the merits review process and the respective issues in review.

5. The Tribunal asked the applicant about her immigration history. The applicant advised that she first travelled to Australia as the holder of the Tourist visa in 2013 and then returned to Australia as a student visa holder in 2014 as a dependent member of her husband’s family unit. Her husband was studying a Masters of Accounting at Curtin University in Western Australia.

6. The Tribunal sought evidence about the applicant’s background in rhythmic gymnastics.  The applicant advised that she became involved in the sport in 1991 when she was 12 years old. She advised that during her career in this sport she was a competitor in international competitions in Thailand, Singapore and Japan. The applicant advised that she participated in the sport in the TASA Games in 1992 in Thailand where she won a bronze medal. She also won a gold and silver medal in international competition in Singapore in 1993. She competed in an international competition in Japan in 1992 but did not obtain a medal. She advised that she won two bronze medals at the ASEAN School Championships in 1994. She advised that she attended the South East Asian Games between 1993 and 1997 and won a gold medal and a bronze medal at these games.

7. The Tribunal asked the applicant whether she had ever worked as a rhythmic gymnastics coach in Indonesia and she stated between 2000 and 2005.

8. The Tribunal asked the applicant whether she believed that she had an internationally recognised record of exceptional and outstanding achievement as a rhythmic gymnast or rhythmic gymnastics coach at the time that she applied for the visa in August 2016.  The applicant advised that she had been involved in rhythmic gymnastics since she was young and that she had worked as a rhythmic gymnastics coach in both Indonesia and Australia. She advised that she had competed at an international and national level. The applicant advised that she would like to contribute to the training of Australian athletes to enable them to compete in international competitions. The applicant advised that at the time she applied for the visa the outstanding achievements in rhythmic gymnastics had occurred when she was young, but she had worked as a coach and had contributed to the coaching of rhythmic gymnastics.  The applicant stated that she had been working for a few clubs in Australia such as the Swan District Gymnastics and the City of Canning.

9. The Tribunal invited the applicant to provide any additional evidence about her ongoing prominence in the sport of rhythmic gymnastics. The applicant advised that she was currently trying to improve her skills as a rhythmic gymnastics coach to enable her to train international athletes.

10. The Tribunal asked the applicant about contribution to rhythmic gymnastics at a community level in Australia. The applicant advised she has coached a wide age group from young children to teenagers and had trained athletes for the Perth Regional Show.  As well as coaching at a number of gymnastics clubs she had taught at local schools and training workshops.

11. The Tribunal asked the applicant what she had managed to achieve with her coaching at a national level. She advised that to date she has not had any success at a national level, she advised she was volunteering as a referee in national competitions. She advised that her coaching thus far in Australia, has been confined to Perth and Western Australia.

12. The applicant’s husband, in his evidence to the Tribunal, advised that his wife was reliant on the evidence and submissions that had been made to date.

13. The applicant provided the Tribunal with a post hearing submission dated 22 September 2020. In that statement which has been duly considered by the Tribunal the applicant states as follows:

    My name is Sindy Dewiana, born in Indonesia, to be precise, Jakarta, November 15,   1979. I wish to add the following points in relation to my Application for a Distinguished Talent (Residence) (Class BX) (subclass 858) visa.

    I applied for a skills visa because of my ability and expertise in the field of sports, namely Rhythmic Gymnastics as a former athlete at the national and international levels when I was in Indonesia. I applied for this visa whilst I was in Australia, became married and have become a mother. My condition was not competitive anymore to compete as an athlete. But with my ability and expertise in sports, I have and wish to continue my skills and expertise to the public in Australia as a coach.

    I keep honing my abilities and skills, because of my love for rhythmic gymnastics and a sense of sportsmanship that makes me wish to continue to excel in any form, from how I educate my children or in working related environment. My children are also actively involved in rhythmic gymnastics, especially Kayla Saputra. She has participated in the championship at her club, namely the rhythmic gymnastics Academy in Leedervile in the State of Western Australia. As a coach in Australia, I have not yet coached a national or international athlete yet, since this would be a long process preparing them since early age, but I was able to inspire athlete in Indonesia and she has become a recognised national athlete in national level.

    I am continuously adding my skills and education in coaching by participating in workshops, taking teacher certificates, volunteers and working in fields according to my expertise. Building friendships and networking with fellow former athletes, coaches and international scale organizations, as per proof of reference letter and certificates. Whilst in Australia and when I was in Indonesia, I was consistent and focused in cultivating rhythmic gymnastics, working in several clubs, local councils and organisations. Especially in Australia, I have provided evidence, starting from the activity program at my workplace. The newest program is opening a special rhythmic gymnastics class for disabilities in the City of Canning, which runs smoothly.

    I say that I am capable of working and am not at risk of becoming a burden to society. The Applicant is presently teaching rhythmic gymnastics whereby she works around 5 hours per day. It is notable that I am working during the COVID-19 pandemic, and there will be greater opportunities for further employment in the future. Due to my skills, expertise and prominence in the area of rhythmic gymnastics, I am confident that I can obtain full-time employment on a regular and ongoing basis. The only thing that is holding me back from my realising my potential is my visa status. Furthermore, my husband, Mr Agung Gumilar Saputra is engaged in work where he specialises in strata and shopping centre cleaning and gardening. The company offers additional services in the form of technology such as automatic report and apps to make reporting and querying external related jobs as required (such as plumbing, tiling, electrical etc). The company presently employs two workers and the company is actively looking to add two more workers this financial year. The company is looking to establish finance/accounting services also, but not until the immigration status is known.

    My expertise and record in the field of rhythmic gymnastics is notable. I have demonstrated prominence, and maintained such prominence, in the area rhythmic gymnastics, I have made substantial contributions to the Australian community because of my international achievements, I have recent achievements which are prominent in rhythmic gymnastics and arts, and I have skills which are desirable and required in the Australian rhythmic gymnastics area.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the relevant criteria for the grant of a Distinguished Talent visa.

    ASSESSMENT AGAINST THE CRITERIA

16. 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 rhythmic gymnastics coach.

    Internationally Recognised Record

17. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations).

18. In this context, the Tribunal has had regard to the relevant dictionary meanings.

19. The Tribunal has had regard to the Macquarie Dictionary Online, where the word ‘exceptional’ is defined to mean: “1. forming an exception or unusual instance; unusual; extraordinary. 2. extraordinarily good, as of a performance or product. 3. extraordinarily skilled, talented, or clever.”  It also defines the word ‘outstanding’ to mean: “1. prominent; conspicuous; striking. 2. that continues in existence; that remains unsettled, unpaid, etc. 3. standing out; projecting; detached. 4. that resists or opposes.”

20. The Tribunal has also had regard to case law applicable to cl.858.212(2)(a).  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. Notably in Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293 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”. The Tribunal also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity.  The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.”  Therefore, Gaffar’s case, has limited application in the current context.  The Tribunal notes that whilst 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.

21. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425. The Tribunal notes the comments of Kieffel J at [49]-[50]:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary.  But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

22. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

23. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”.  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.

24. 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.

25. 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.

26. It is apparent from the material provided to the Tribunal at review and provided with the visa application that the applicant was a rhythmic gymnast, who between 1991 and 1997, represented Indonesia at a national and international level.  The evidence indicates that the applicant has been in Australia since 2014 initially as a secondary visa applicant, as her husband held a student visa as a primary visa applicant.  More recently she and her family have held Bridging visas pending the outcome of the applicants Subclass 858 application.  The evidence before the Tribunal indicates that during the time the applicant has resided in Australia she has obtained accreditation as a rhythmic gymnastics beginner coach and judge and she has managed to obtain part time work teaching rhythmic gymnastics at a local level in Western Australia.  The evidence is devoid of the applicant having an international record of exceptional and outstanding achievement as a rhythmic gymnastics coach at time of application. There is no evidence before the Tribunal which indicates that at the time of visa application in August 2016 the applicant was a coach of rhythmic gymnastics with international standing and had achieved national or international success as a coach of rhythmic gymnastics, and as conceded to by the applicant in her post hearing submission, her days as a rhythm gymnastics athlete were behind her due to her age and becoming a mother.

27. The applicant has been able to maintain part time work in Australia as a teacher of rhythmic gymnastics.

28. In summary, based on the evidence before it, the Tribunal cannot be satisfied that the applicant, at time of application, had an internationally recognised record of exceptional and outstanding achievement in the sport of rhythmic gymnastics as a coach. Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.

29. The Tribunal is unable to find on the evidence before it that the applicant satisfies the regulatory requirements for the grant of a Distinguished Talent Visa.

    CONCLUSION

30. 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

31. The Tribunal affirms the decision not to grant the first named visa applicant a Distinguished Talent (Residence) class BX visa.

    John Cipolla
    Senior Member