Dos Santos Ludgero (Migration)

[2022] AATA 184

Dos Santos Ludgero (Migration) [2022] AATA 184 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Ian Lucas Dos Santos Ludgero

CASE NUMBER:  2107881

HOME AFFAIRS REFERENCE(S):          BCC2017/2248084

MEMBER:Mary Sheargold

DATE:27 January 2022

PLACE OF DECISION:  Melbourne

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:

·  cl.858.212 of Schedule 2 to the Regulations.

Statement made on 27 January 2022 at 9:20am

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – Federal Circuit Court remittal – internationally recognised record of exceptional and outstanding achievement in a sport – Brazilian Jiu Jitsu (BJJ) athlete – emerging talent – lineage claim – funding to compete in World Championships – reigning Pan Pacific Champion in 2 black belt categories – multiple international competition wins – still prominent – asset to the Australian community – mental health benefits – decision under review remitted

LEGISLATION

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

CASES

Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA & 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 Home Affairs on 23 February 2018 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 May 2017.  He has claimed his distinguished talent as a Brazilian Jiu Jitsu (BJJ) athlete.  The delegate refused to grant the visa on the basis that he did not satisfy cl.858.212(2)(a) of Schedule 2 to the Regulations because the delegate considered he was an emerging talent (rather than a distinguished talent).

3. Dr Ludgero originally applied to the Tribunal for review of the delegate’s decision on 14 March 2018, and on 5 November 2020, the Tribunal affirmed the delegate’s decision.  He appealed the decision to the Federal Circuit Court of Australia and by order of Judge Lucev dated 18 May 2021, the Tribunal was directed to re-hear the application and determine it according to law.  Specifically, Judge Lucev noted that the Tribunal failed to consider Dr Ludgero’s lineage claim in relation to his international recognition within BJJ.

4. The applicant appeared before the Tribunal on 20 January 2022 via MS Teams video link to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Distinguished Talent (Residence) (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.

7. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.”

8. The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations.  Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations.

9. Relevantly, cl.858.212(2) requires that the applicant:

   ·has an internationally recognised record of exceptional and outstanding achievement in on of the following areas:

   i.a profession;

   ii.a sport;

   iii.the arts;

   iv.academia and research; and

   ·is still prominent in the area; and

   ·would be an asset to the Australian community; and

   ·would have no difficulty in obtaining employment, or becoming established independently, in Australia in the area; and

   ·produces a completed, approved Form 1000; and

   ·if the applicant has not turned 18, or is at least 55 years old, at the time of the application – would be of exceptional benefit to the Australian community.

10. Dr Ludgero has not made any claims in relation to cl.858.212(4).

11. In determining whether Dr Ludgero meets cl.858.212(2), all of the stated subclauses must be met.  The Tribunal notes that Dr Ludgero has produced a completed, approved Form 1000 in accordance with cl.858.212(2)(e), and that cl.858.212(2)(f) is not relevant to the applicant.

12. The Tribunal has considered whether the applicant meets the requirements set out in cl.858.212(2)(a)-(d) inclusive as set out below.

    Does Dr Ludgero have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research?

13. BJJ is a martial art, and for all intents and purposes, is considered a sport.  Whilst the Tribunal as previously constituted held some minor reservations about categorising BJJ as a sport, the Federal Circuit Court did not hesitate to consider BJJ as a sport and the Tribunal notes that in the wider community, BJJ and other martial arts and forms of organised, controlled fighting are considered to be sports.  The fact that BJJ is not an Olympic sport nor perhaps even a “mainstream” martial art, whatever that may mean, does not disqualify BJJ from being classified as a sport.

14. The focus for the Tribunal on review is whether Dr Ludgero has an internationally recognised record of exceptional and outstanding achievement within BJJ.  In finding that Dr Ludgero does in fact have an internationally recognised record of exceptional and outstanding achievement within BJJ at the time he made his visa application in May 2017, the Tribunal gives significant weight to the evidence available to it on review, including:

    ·the fact that Dr Ludgero was the reigning International Brazilian Jiu-Jitsu Federation Pan Pacific Champion in 2 black belt categories at the time he applied for his visa;

    ·that he had won a major international competition held in Brazil in 2012; and

    ·that his lineage within BJJ was quickly and directly traceable to the creators of BJJ, the Gracie family.

15. The Tribunal is cognisant that Dr Ludgero had not been invited to compete in the International Brazilian Jiu-Jitsu Federation’s (IBJJF) World Championship events at the time he applied for his visa.  However, the Tribunal gives weight to Dr Ludgero’s evidence presented on review explaining the difficulties he had in obtaining funding to compete in a significant number of events to allow him to obtain the required points to be invited to compete at the IBJJF World Championships.  Rather, the Tribunal recognises that despite his lack of resources, Dr Ludgero was able to compete in and win international competitions that were relevant at the time of his application.

16. At the hearing, Dr Ludgero explained that due to his lineage and fact he had begun his training in BJJ with his father at age 4, he had been able to quickly move through the various belt rankings within BJJ and had achieved his black belt aged 21, whereas the average age to be awarded a black belt in BJJ is 35.  The Tribunal accepts Dr Ludgero’s oral and documentary evidence regarding his lineage within the sport and accepts he can clearly reference his lineage by 4 generations to the founders of BJJ.  He has been recognised as part of his father’s team, the Constrictors, for decades.  This lends weight to Dr Ludgero’s claim that he is internationally recognised within BJJ.

17. The Tribunal notes that the IBJJF’s Pan Pacific Championships is considered one of the top 3 BJJ competitions in the world along with the IBJJF’s World Championships and the Abu Dhabi Combat Championships (ADCC).  The IBJJF and ADCC are separate, private enterprises that seek to regulate BJJ and rank competitors.  Dr Ludgero competed at the ADCC, an invitational competition like the IBJJF World Championships, shortly after making his visa application.  Rather than viewing Dr Ludgero’s lack of appearance at the IBJJF World Championships as a reason to find he does not have an internationally recognised record of exceptional and outstanding achievement in BJJ, the Tribunal gives weight to Dr Ludgero’s international successes achieved at the Pan Pacific Championships in the face of financial adversity. 

18. Ultimately, exceptional achievement in a sport is not to be judged by capacity to appear frequently and widely in competitions and to accumulate points to be able to compete at the highest ranking championship event; rather, it should be judged on the individual’s results and merits in competitions.  In that respect, the Tribunal does not hesitate to find that Dr Ludgero demonstrated an internationally recognised record of exceptional and outstanding achievement at the time he applied for his visa given he was the reigning Pan Pacific Champion in 2 separate black belt categories. 

19. In making this finding, the Tribunal is cognisant that 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 long list: see Zhang v MIMA & Anor [2007] FMCA 664. The Tribunal is mindful of the reasoning in Gaffar v MIMIA [2000] FCA 293 that the legislative requirement does not require something that makes the visa applicant’s record unusual or special or out of the ordinary.

20. Dr Ludgero won multiple international competitions in BJJ and was the reigning Pan Pacific Champion in 2 categories at the time he made his visa application.  Based on all the evidence available to it, the Tribunal is satisfied that Dr Ludgero has an internationally recognised record of exceptional and outstanding achievement as a BJJ athlete.  Therefore, the Tribunal finds that he satisfies cl.858.212(2)(a) of Schedule 2 to the Regulations.

    Still prominent in the area

21. There is a notable body of documentary evidence before the Tribunal in the form of written references in support of Dr Ludgero as well as publicly available information demonstrating that Dr Ludgero is still prominent in BJJ.  The Tribunal gives significant weight to the impact of the Covid-19 pandemic and the fact that Dr Ludgero ordinarily resides in Western Australia as reasons his current rankings as a BJJ athlete have faltered; he has not been able to compete within Australia let alone internationally during the pandemic. 

22. However, the evidence before the Tribunal shows that Dr Ludgero has established his own dojo in Western Australia under the Constrictors banner, and he continues to train with other prominent BJJ athletes in Australia.  He is widely recognised within the international BJJ community as an athlete, coach, and mentor.  It is clear to the Tribunal that Dr Ludgero has committed his life to success in BJJ and that he is continuing to find that success.  The body of written references supporting Dr Ludgero is particularly persuasive in this regard.

23. Therefore, the Tribunal finds that Dr Ludgero was prominent as a BJJ athlete when he applied for his Subclass 858 visa, and that he is still prominent as a BJJ athlete today.  Therefore, he meets cl.858.212(2)(b) of Schedule 2 to the Regulations.

    An asset to the Australian community

24. As set out above, it is abundantly clear from the volume of references provided in support of Dr Ludgero’s application that he is considered an asset to the Australian BJJ community.  In particular, the Tribunal notes Dr Ludgero’s explanation at the hearing that BJJ in Australia is still seeking the influence of participants with a strong lineage and ties to the Gracie family who established BJJ.  BJJ is a young, growing sport in Australia, having only grown in popularity over the last 20 years, and Dr Ludgero has demonstrated his capacity to increase the standards of BJJ across Australia through his significant contributions to training and competitions within Australia.

25. The Tribunal notes the espoused benefits of BJJ as a healthy form of expression for people who struggle to regulate themselves, as well as generalised mental health benefits from training in BJJ.  In the context of the Covid-19 pandemic and the known mental health crisis within Australia, the Tribunal considers athletes such as Dr Ludgero to be a true asset to the Australian community by fostering the values of BJJ and instilling a positive influence in the athletes he coaches.

26. Based on the evidence before it, the Tribunal is satisfied that Dr Ludgero would be an asset to the Australian community, and therefore he meets cl.858.212(2)(c) of Schedule 2 to the Regulations.

    Obtaining employment or becoming established independently in Australia

27. Dr Ludgero has formed his own BJJ team in Australia and has established his own BJJ dojo for training and coaching BJJ athletes.  Therefore, the Tribunal does not hesitate to find that he will remain established independently in Australia as a BJJ athlete, and the requirement in cl.858.212(2)(d) is met.

28. As set out above, Dr Ludgero has provided a completed, approved Form 1000 with his application in satisfaction of cl.858.212(2)(e) of Schedule 2 to the Regulations, and he is not required to meet cl.858.212(2)(f) because he was not aged under 18 years or above 55 years at the time he applied for the visa.

29. The applicant therefore meets the requirements of cl.858.212(2) of Schedule 2 to the Regulations, which means he satisfies cl.858.212(1) of Schedule 2 to the Regulations.

    DECISION

30. 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:

    ·cl.858.212 of Schedule 2 to the Regulations.

    Mary Sheargold
    Member