Dib Frias (Migration)

[2019] AATA 3067

Dib Frias (Migration) [2019] AATA 3067 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roberto Dib Frias

CASE NUMBER:  1726043

DIBP REFERENCE(S):  BCC2017/1344145, BCC2017/1422261

MEMBER:K. Chapman

DATE:1 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 858 visa:

·     cl.858.212 of Schedule 2 to the Regulations.

Statement made on 01 May 2019 at 12:19pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 – Brazilian Jiu-Jitsu – assisted with the coaching of BJJ participants – owns his training academy – demonstrated excellence in the sport – commensurate with internationally recognised record of exceptional and outstanding achievement – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994, Schedule 2, cl.858.212(2)

CASES
Gaffar v MIMIA [2000] FCA293
Zhang v MIMA and Anor [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 12 October 2017 to refuse to grant the 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 one of the following areas: a profession, a sport, the arts or academia and research, or have provided specialised assistance to the Australian Government in matters of security. In addition to having such an internationally recognised record, the person must be still prominent in the relevant area. They must also satisfy further requirements relating to being an asset to the Australian community, having no difficulty in obtaining employment or becoming established independently in Australia in the relevant area, and having an appropriate nomination for the visa.  

3. The applicant, Mr Roberto Dib Frias, applied for the visa on 7 April 2017 on the basis that he had an internationally recognised record of achievement in the area of sport, specifically Brazilian Jiu-Jitsu (BJJ). The applicant is a national of Brazil and contends that his competition and coaching achievements, in conjunction with his reputation, in the sport of BJJ qualify him for the grant of the Subclass 858 visa. The applicant was nominated for the visa by Mr Daniel Lima Eulalio, who is an official, coach and past competitor in the sport of BJJ.

4. The delegate refused to grant the visa on the basis that the applicant did not have an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ at the time of the visa application. On 24 October 2017, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review.

5. On 30 October 2018, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting him to provide current information addressing the relevant criteria under cl.858.212(2) of Schedule 2 to the Regulations. In response the Tribunal received material including, but not limited to, written submissions, ranking information, particulars concerning the ‘One Purpose BJJ’ academy, IBJJF ‘General System of Graduation’ summary, letter from Mr Ben Hodgkinson of Grappling Industries, letter from Mr Alexandre Queiroz of Braus Fight Pty Ltd, competition results, and a competition calendar.

6. The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the nominator, Mr Daniel Lima Eulalio, and in person from Ms Tegan Krarup and Mr Michael Kan. The applicant was represented in relation to the review by his registered migration agent who was permitted to make oral submissions.

7. The applicant requested further time to provide post hearing submissions which was granted by the Tribunal. On 15 February 2019, the Tribunal received written submissions, a summary of the applicant’s career, ranking information, a letter from the applicant, a letter from Ms Tegan Krarup, a letter from Mr Ben Hodgkinson of Grappling Industries, a letter from Mr Alexandre Queiroz of Braus Fight Pty Ltd, and a list of the applicant’s achievements. On 12 April 2019, the applicant submitted further written submissions, updated ranking information and recent competition results. All material submitted by the applicant has been duly considered by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.858.212. In particular, the Tribunal must carefully assess whether at the time of the visa application he had an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ and if he is still prominent in that area.

10. Sub-clause 858.212(1) provides that the applicant must satisfy the requirements of cl.858.212(2) or (4). Sub-clause 858.212(4) requires that an applicant has provided specialised assistance to the Australian Government in matters of security. There is no claim made in this regard and that sub-clause is not relevant to the review.

11. Sub-clause 858.212(2) requires that, at the time of application for the visa, 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

    (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.

12. The applicant applied for the visa on the basis of his record and achievements as a BJJ competitor and coach. He was nominated, in a Form 1000 that accompanied his visa application, by Mr Daniel Lima Eulalio (‘the nominator’). The applicant was over the age of 18 years and under the age of 55 years at the time of the visa application and therefore cl.858.212(f) is not relevant to the review. The Tribunal has carefully considered all relevant evidence, both documentary and oral, in assessing whether the applicant satisfies all of the requirements contained in cl.858.212(2).

13. That a person claims to satisfy the criteria for a visa does not of itself establish the veracity of such claims. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: 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.

14. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant satisfies the criteria for the visa. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

    Exceptional and outstanding achievement in sport

15. As is relevant to the present matter, the applicant must have an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ. In determining whether the applicant has such an internationally recognised record, the criterion requires a demonstrated excellence in the relevant area which is ‘out of the ordinary’: see Gaffar v MIMIA [2000] FCA293 where the Court considered the phrase ‘exceptional record of achievement’ in an earlier category of skilled residence visa. 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. A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA and Anor [2007] FMCA 664.

16. The applicant gave oral evidence to the Tribunal which may be summarised as follows. He commenced training in BJJ in 1999 at the age of 9 years in Brazil. He obtained a Blue Belt at the age of 14 years and obtained the opportunity to train with a club under the guidance of Valternei Dias, a noted BJJ coach in Brazil. The applicant competed in juvenile competitions whilst growing up in Brazil, predominately in Sao Paulo which became the hub of BJJ in his view. He transitioned to adult competition in due course and competed in both Sao Paulo and Rio de Janeiro. In 2006, the applicant was ranked first in the Sao Paulo State in the Blue Belt juvenile and adult categories. The applicant transitioned to a new club and was trained by the Master Professor Marcus Antonia Barbosa. The applicant won a gold medal at the State Championship in 2007 under his new coach.

17. In 2014 following the completion of University studies in Physical Education and a stint in the family business, the applicant engaged in full time training for BJJ competition whilst living in Brazil. The applicant was awarded his Black Belt in BJJ that year and by 2015 he was regularly competing in adult Black Belt competition. That year he competed in the Brazilian Jiu-Jitsu Championship held by the Brazilian Confederation of Jiu-Jitsu (CBJJE) achieving strong results. In September 2015 the applicant made the final in his division at the Floripa Open held by the International BJJ Federation (the IBJJF). The applicant informed the Tribunal that the IBJJF is the most prestigious BJJ Federation internationally. He added that there are many Federations as the sport of BJJ is new and growing. The applicant explained that the competitions conducted by the CBJJE were also of a very high level given the sport of BJJ originated in Brazil. Additionally, the applicant confirmed to the Tribunal that the IBJJF rankings are the most prestigious worldwide.

18. The applicant came to Australia in 2016 to study a Certificate III in Fitness. He attended local and international training camps that year. The applicant explained that the Australian Federation of BJJ (the AFBJJ) regulates the sport in Australia, with various State based bodies subordinate to it. The Queensland BJJ Circuit (the QBJJC) is the relevant body in the applicant’s State of residence. The applicant explained that in 2016 most BJJ competitions in Australia were organised by the AFBJJ. He characterised these as local competitions. The applicant advised that the IBJJF held the Pan Pacific Championships in October 2016 which was the biggest international competition in Australia and attracted international competitors. The applicant obtained three adult male Black Belt gold medals at this tournament. He explained that the Pan-American Championship, the Brazilian Championship and the World Championship (none of which are held in Australia) were the only events of higher importance than the Pan Pacific Championships from an international ranking perspective.

19. In January 2017, the applicant obtained first place at the Melbourne International Professional BJJ Championship held by the United Arab Emirates Jiu-Jitsu Federation (UAEJJF). In March 2017, the applicant contested the Pan American Championships held by the IBJJF in the United States. The applicant submitted to the Tribunal documentary records of results confirming that since the awarding of his Black Belt in 2014, he has competed in numerous BJJ competitions in Brazil, Australia and the United States where he received multiple podium placings and many gold medals.

20. The applicant also detailed how he runs the ‘One Purpose BJJ’ Academy with his partner Ms Krarup. They commenced the business in February 2017 and have grown from an initial 2 students to 145 currently. The applicant explained that the Academy has a particular focus in assisting Australian children in the local community. He also outlined that he coaches and mentors BJJ competitors locally, interstate and at international competitions.

21. The applicant informed the Tribunal that he was ranked ‘just outside the top 100’ in the word-wide IBJJF general adult Black Belt rankings at the time of application for the visa (7 April 2017, at that time the IBJJF rankings were not divided into the Gi and no Gi categories). He explained that the tournaments with the most ranking points are located outside of Australia. Documents submitted by the applicant indicate that he was ranked between 113 and 120 in the IBJJF general rankings in the period around the time of application. Written submissions contend that the applicant’s rank at the time of application should have been higher due to processing delays by the IBJJF and records indicating his rank improved to number 75 as at 26 September 2017 were also submitted to the Tribunal. On balance, the Tribunal considers that the best evidence before it regarding the applicant’s IBJJF adult male Black Belt world-wide ranking at the time of application are the results indicating his rank of number 120 as at 28 March 2017 (contained at page 104 of the Departmental file). The Tribunal places very high weight upon this evidence regarding the applicant’s rank at the time of application given that he advised the Tribunal the IBJJF rankings are the most prestigious.

22. The applicant also advised the Tribunal that in the Australian rankings awarded by the AFBJJ he was first in both the Male Adult Black Belt Gi and no Gi categories in 2016. Submitted documentary records from the AFBJJ confirm this situation. The Tribunal places high weight upon the aforementioned ranking results given they indicate the position of the applicant in BJJ competition relative to his peers in Australia at the time of application. When the IBJJF and AFBJJ rankings of the applicant at the time of application are considered together, they point to him having an impressive record of achievement in BJJ at that time. For completeness, the Tribunal notes that it has carefully considered the contentions of the applicant regarding the delay in processing his IBJJF ranking in 2017 and that it is more difficult for competitors based in Australia to obtain points towards this ranking. However, the Tribunal must assess the circumstances of the applicant utilising the best evidence available, which is suggestive of him ranking 120 in the world at the time of application and him choosing to reside in Australia notwithstanding the potential limitation in obtaining IBJJF ranking points by doing so.

23. The applicant also gave oral evidence to the Tribunal outlining his achievements in BJJ competition following the time of application. He competed in Abu Dhabi in April 2017, being one of only two Australian based competitors to do so. The applicant competed in the 2017 and 2018 Pan American Championships, the World Championship in 2018, the Pan Pacific Championship in 2018 and additionally in paid professional contests. A complete list of the applicant’s contest results from April 2017 to October 2018 is contained in submissions dated 15 February 2019. These submissions also detail that the applicant competed against many highly ranked international BJJ competitors in the aforementioned tournaments.

24. On 12 April 2019, the applicant submitted records from the IBJJF demonstrating that his world-wide adult male Black Belt ranking in the no Gi category is 30 and in the Gi category is 33 (as at 11 April 2019). In the view of the Tribunal, such rankings are very impressive and point to the applicant having a demonstrated excellence in the sport of BJJ which is ‘out of the ordinary’ and commensurate with him possessing an internationally recognised record of exceptional and outstanding achievement in the sport at the present time. The Tribunal also notes that in March 2019 the applicant obtained four gold medals in adult male Black Belt categories at the IBJJF sanctioned Sydney International Open, which in the view of the Tribunal buttresses the aforementioned conclusions.

25. The Tribunal took oral evidence from the nominator, Mr Daniel Lima Eulalio, who is currently the Director of the Queensland BJJ Circuit (QBJCC) and an office holder in the AFBJJ. He is the founder of the QBJCC, a former competitor and regular competition referee. Mr Eulalio informed the Tribunal that the two best BJJ competitors in the adult male Black Belt category are the applicant and Mr Vincente Calavanti. Mr Eulalio stated that with respect to these two men there is “not really anyone else in their class in Queensland.” He added that the applicant is in the “top handful” of BJJ competitors in Australia. Mr Eulalio indicated that the IBJJF rankings are the most important throughout the world and he opined that the applicant would currently rank higher if he had as many competition opportunities as those in the United States. Mr Eulalio confirmed his continued nomination of the applicant for the Subclass 858 visa and submitted that the applicant would be a great asset to Australia. The Tribunal accepts that Mr Eulalio was a truthful witness and some weight is afforded to his oral evidence.

26. The Tribunal also received oral evidence from Ms Tegan Krarup. She is the applicant’s partner and co-owner of their business ‘One Purpose BJJ’ Academy. Ms Krarup is a BJJ competitor herself and advised the Tribunal that the IBJJF rankings are the most important internationally. She indicated that the applicant was ranked in the mid-30’s at the time of the review hearing. Ms Krarup and the applicant commenced their BJJ coaching business in February 2017. The business is financially successful and sustains both her and the applicant. Ms Krarup indicated she has participated in the sport of BJJ for 8 years and in her view there is no other competitor of Brazilian heritage at the same level as the applicant. The Tribunal also took oral evidence from Mr Michael Kan who is a student of the applicant’s in the sport of BJJ. He noted that the applicant has longstanding in BJJ having commenced in the sport whilst living in Brazil and also that they travelled together to the United States to compete in the World Championships. The Tribunal accepts that Ms Krarup and Mr Kan were truthful witnesses and some weight is afforded to their oral evidence.

27. The applicant contends that his achievements following the time of application point to him having the required record of achievement at the time of application (citing the Bretag decision). The Tribunal considers that the upward trajectory of the applicant’s world-wide IBJJF competition rankings in the adult male Black Belt category (noting the recent Gi and no Gi distinction) supports the conclusion that he possessed the required record of achievement in the sport of BJJ at the time of application. Very high weight is placed by the Tribunal upon the aforementioned evidence of the applicant’s contemporary IBJJF rankings.

1. As previously outlined, the Tribunal considers the applicant’s IBJJF rank of 120 (general) and his number 1 AFBJJ ranking (in both Gi and no Gi) at the time of application to be impressive achievements. When considered in conjunction with the applicant’s recent IBJJF adult Black Belt rankings of 30 in the no Gi category and 33 in the Gi category, his 2017 AFBJJ number 1 ranking in the Gi category, and that he is currently the highest ranked Australian competitor in the IBJJF Gi category, the Tribunal is satisfied that at the time of application he had a demonstrated excellence in the sport of BJJ which is ‘out of the ordinary’ and commensurate with an internationally recognised record of exceptional and outstanding achievement. The Tribunal is further satisfied that the applicant possesses the same attributes at the time of this decision. The aforementioned conclusions are buttressed by the reputation that the applicant has acquired as a BJJ coach and also through his acquisition of sponsorship.

2. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. Following careful consideration of the evidence, the Tribunal finds that the applicant had an internationally recognised record of exceptional and outstanding achievement in BJJ at the time of the visa application and continues to do so at the time of this decision. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.858.212(2)(a).

   Still prominent in the area

3. The applicant must demonstrate that, at the time of the visa application, he ‘is still prominent in the area’ of BJJ. The word ‘prominent’ is not defined in the Regulations. However, referring to Departmental policy, ‘prominent’ should be accorded its ordinary dictionary meaning within context, with appropriate synonyms being ‘conspicuous’ and ‘important’. Departmental policy also considers that an applicant who has not been active at a high level in the relevant area for more than 2 years prior to the time of application would not be regarded as retaining prominence in that area. The Tribunal gives the word ‘prominent’ its ordinary English language dictionary meaning with respect to an assessment of the applicant’s case.

4. The applicant’s background in the sport of BJJ has been outlined above. Given his prominence in the adult male Black Belt IBJJF and AFBJJ rankings, coaching activities and receipt of sponsorship, the Tribunal is satisfied that the applicant was still prominent in the sport of BJJ at the time of application and he remains so at the time of this decision. Following careful consideration of the evidence, the Tribunal is satisfied that the applicant is still prominent in the area of BJJ and will remain so into the foreseeable future. Accordingly, the applicant satisfies cl.858.212(2)(b).

   Asset to the Australian community

5. An applicant for a Distinguished Talent visa must demonstrate that the granting of the visa will benefit the Australian community as a whole, not just the applicant and nominator.  ‘Asset’ does not only refer to economic benefit, it can also refer to social or cultural benefit.  The benefit must be national, not only local or regional.

6. The evidence before the Tribunal indicates that the applicant has mentored and assisted with the coaching of BJJ participants in both Queensland, interstate and at overseas competitions. He currently runs the One Purpose BJJ Academy with his partner Ms Krarup. The Club trains both adults and children, providing an important avenue for members of the Australian community to engage in healthy physical activity.

7. Given the applicant’s international experience in BJJ competition, the Tribunal is satisfied that he will raise Australian sporting standards internationally through his competition, mentoring and coaching endeavours and that he would be an asset to the Australian community. The Tribunal is further satisfied that such benefit will apply nationally beyond the local or regional level. Therefore, the Tribunal is satisfied that the applicant satisfies cl.858.212(2)(c).

   Employability

8. The applicant must demonstrate he would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area of BJJ. The Tribunal is satisfied that the applicant has a demonstrated history of receiving remuneration for competing and coaching in the sport of BJJ both in Australia and internationally.

9. As previously outlined, the applicant and his partner successfully operate the One Purpose BJJ Academy. It is apparent that the applicant financially sustains himself through the sport of BJJ and continues to be employable in this area. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.858.212(2)(d).

   The nominator and nomination form

10. Form 1000 must accompany the visa application. The nominator must be an Australian citizen, permanent resident, eligible New Zealand citizen or an Australian organisation having national reputation relevant to the area of the applicant’s achievement and testifying to the applicant’s record of achievement.

11. The nominator must have a national reputation and be highly regarded throughout Australia. A reputation confined to one state or region would not be considered national. The reputation must be in the same field as that of the applicant.

12. The nominator is Mr Daniel Lima Eulalio. As previously outlined he is a former competitor, coach and referee in the sport of BJJ. He founded the QBJJC and is an office holder with the AFBJJ. Given the aforementioned matters, the Tribunal is satisfied that Mr Eulalio is an Australian citizen who has a national reputation in relation to BJJ. Accordingly, the Tribunal is satisfied that the applicant satisfies the requirements of cl.858.212(2)(e).

13. Given the above findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the Subclass 858 visa.

    DECISION

14. The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 858 visa:

    ·     cl.858.212 of Schedule 2 to the Regulations.

    K. Chapman
    Member