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

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).
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).
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.
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…

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: Dos Santos Ludgero (Migration) [2022] AATA 184
Case: [2022] AATA 184
Decision Date: 27 January 2022

CaseChat Overview and Summary

The Federal Circuit Court considered the case of Dos Santos Ludgero concerning an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a Brazilian Jiu Jitsu (BJJ) athlete, sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in his sport. The central dispute revolved around whether the applicant met the specific criteria for this visa subclass, particularly in relation to his achievements and prominence in BJJ.

The primary legal issue before the court was to determine if the applicant satisfied the requirements of clause 858.212(1) of Schedule 2 to the Regulations, specifically by meeting the conditions outlined in either subclause (2) or (4) of that clause. Clause 858.212(2) mandates that an applicant must possess an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research; be still prominent in that area; be an asset to the Australian community; and have no difficulty establishing themselves in Australia. The court also had to consider whether BJJ could be classified as a sport for the purposes of the visa.

The court reasoned that BJJ, despite not being an Olympic sport, is widely considered a sport. It found that the applicant possessed an internationally recognised record of exceptional and outstanding achievement in BJJ at the time of his visa application. This finding was based on significant evidence, including his status as the reigning International Brazilian Jiu-Jitsu Federation Pan Pacific Champion in two black belt categories, multiple international competition wins, and his direct lineage to the creators of BJJ. The court concluded that the applicant met the requirements of clause 858.212(2) and therefore satisfied clause 858.212(1).

Consequently, the Tribunal remitted the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with a direction that the applicant meets the criteria set out 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 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. 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.” 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. 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. Dr Ludgero has not made any claims in relation to cl.858.212(4). 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. 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? 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. 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.

Decision

Reasons for decision

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 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 SheargoldMember

Ratio Decidendi

Legal Principle Established

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