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

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’).
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.
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.
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.
On 30 October 2018, the Tribunal wrote to the applicant pursuant to…

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.

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Details

AGLC: Dib Frias (Migration) [2019] AATA 3067
Case: [2019] AATA 3067
Decision Date: 1 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858, made by an applicant who claimed to have an internationally recognised record of exceptional and outstanding achievement in Brazilian Jiu-Jitsu (BJJ). The applicant's case was based on his achievements as a competitor and coach in BJJ, and he was nominated by a third party. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 858.212 of the Migration Regulations. Specifically, the Tribunal was required to assess whether, at the time of the visa application, the applicant possessed an internationally recognised record of exceptional and outstanding achievement in BJJ and whether he remained prominent in that field. The Tribunal also considered the applicant's potential to be an asset to the Australian community and his ability to establish himself independently in Australia.

The Tribunal acknowledged that the onus was on the applicant to satisfy the statutory criteria, and that a decision-maker was not required to make the applicant's case or uncritically accept all allegations. The Tribunal carefully considered all documentary and oral evidence, attributing weight to it in accordance with established legal principles, including the observations in *Botha v Minister for Immigration and Border Protection* [2017] FCA 362. While the Tribunal found that the applicant met certain criteria, it concluded that the matter should be remitted for reconsideration by the Department.

The Tribunal remitted the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with a direction that the applicant met the criteria specified in clause 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 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. 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. 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. 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). 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. 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

Decision

Reasons for decision

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 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. ChapmanMember

Ratio Decidendi

Legal Principle Established

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