Dos Santos Ludgero (Migration) - [2020] AATA 5464

Dos Santos Ludgero (Migration) [2020] AATA 5464 (5 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Ian Lucas Dos Santos Ludgero
CASE NUMBER:  1806794
DIBP REFERENCE(S):  BCC2017/1828521 BCC2017/2248084
MEMBER:Marten Kennedy
DATE:5 November 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.
Statement made on 5 November 2020 at 9.22am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in a sport – Brazilian Jiu Jitsu (BJJ) athlete – emerging talent – athlete’s progress governed by a coach – limitations on international organisation and accreditation – limited international competition opportunities – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Bretag v Immigration Review Tribunal [1991] FCA 582
Gaffar v MIMIA [2000] FCA 293
Singh v MHA [2018] FCA 1337
Singh v MIBP [2017] FCCA 2992
Zhang v MIMA [2007] FMCA 664

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration 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 (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 identified areas, including (relevantly) a sport (cl. 858.212(2)). [1]
[1] …or have provided specialised assistance to the Australian Government in matters of security (cl. 858.212(4)). There is no suggestion in this case that the applicant's claim falls in this last category.
The applicant is a Brazilian Jiu Jitsu (BJJ) athlete. He applied for the visa on 22 May 2017. The delegate refused to grant the visa on 23 February 2018 on the basis that the applicant did not meet cl.858.212(2)(a), finding that while the applicant had demonstrated commendable achievement and had participated successfully in championships within Brazil, and Australia, he was an emerging talent and did not hold a recognised international record of exceptional and outstanding achievement in the sport. The delegate was also not satisfied the applicant had an internationally recognised record of exceptional and outstanding achievement as a coach.
The visa applicant applied to the Tribunal for review on 14 March 2018.
Does Mr Ludgero have an internationally recognised record of exceptional and outstanding achievement in sport?
Mr Ludgero has provided the Tribunal with a comprehensive submission and corroborating records outlining his experience and achievements in the area of BJJ. Mr Ludgero has also helpfully provided materials explaining the history of the sport, and at the hearing assisted me to understand the way the sport is organised nationally and internationally. I accept all the evidence given by Mr Ludgero as to his achievements and as to the nature and organisation of the sport.
One key submission made by Mr Ludgero required me to reconsider whether it is correct to view BJJ as a sport. Mr Ludgero cogently argues that as a martial art there is less focus on competition and international ranking as there may be in more ‘mainstream’ sports. While I understand Mr Ludgero’s point in this regard, the Regulations ask me to consider whether Mr Ludgero has an internationally recognised record of exceptional and outstanding achievement in one of four identified ‘areas’; namely, a profession, a sport, the arts or academia and research. Although I have followed and understand Mr Ludgero’s argument regarding the nature of BJJ as a martial art, I am still inclined to view it as a sport in this context. In this regard, it combines physical and mental training and is manifested in competition. Competitions within other martial arts form part of the Olympic games. I accept that BJJ is best described as a martial art, but the area of ‘sport’ is the most apt of the four areas mentioned in cl.858.212(2) of Schedule 2 to the Regulations. It does not fall within recognised professions, and nor is it an area of academia or research. The ‘arts’ in this context I understand to mean music, film, theatre and the like. While aspects of BJJ no doubt may be described as an art form in many ways, I do not view it as falling amongst ‘the arts’ for present purposes.
The Regulations require the applicant to hold an internationally recognised record of exceptional and outstanding achievement. A record is an aggregation or a list, not necessarily a large aggregation or a long list: Zhang v MIMA [2007] FMCA 664. I also bear in mind that the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary: Gaffar v MIMIA [2000] FCA 293.
I have taken into account the Department’s policy as set out in PAM3, conscious of the role of Departmental policy in the Tribunal. I have noted the following particular points in relation to the evidence that policy suggests will assist me form a view whether Mr Ludgero has the requisite record of achievement:
·National and international rankings
·Membership of national sporting teams;
·Results in international competitions or tournaments;
·Statements from international sporting bodies;
·Sporting scholarships received;
·Newspaper and magazine articles attesting to achievements; and
·Links to any reputable websites which refer to the applicant’s sporting achievements.
The international focus of the criterion and the suggested evidence is apparent, and it is essential that international recognition be assessed. I invited Mr Ludgero to explain the way the sport is organised, including for international events and competition.
First, I understand from Mr Ludgero that BJJ athletes in competition will represent a ‘team’, although after Mr Ludgero elaborated on how this works, I understood that the term ‘team’ was more akin to a ‘stable’ or ‘school’. One’s membership of a team is dictated by who a person’s ‘coach’ is. Mr Ludgero also explained that an athlete’s progress through the ranks is governed by the coach, and at least in the case of promotion to black belt, by other athletes within the team who hold that rank.
Mr Ludgero’s team is ‘The Constrictors’. This is his father’s team. As I understand it, Mr Ludgero’s father developed an innovative approach to BJJ grappling techniques arising out of his loss of some digits to a boa constrictor resulting in limitations on grip. This is where the name of the team came from. As I further understand it, in the ordinary course, Mr Ludgero will always be a member of ‘The Constrictors’ team. He will compete at tournaments for that team, even though he might be the only member of the team at the tournament. In this way, BJJ athletes do not represent their country at international competitions, but rather their ‘team’ in the sense of school or stable.
As to the international arrangement of the sport, the situation appears complicated. There is no single recognised international federation governing the sport. It is not an Olympic sport. Mr Ludgero explained that the ‘big’ countries that participate in the sport are Brazil, the United States and Australia.
The International Brazilian Jiu Jitsu Federation (IBJJF) is a private entity owned by the family of the founder of the sport, and my impression of Mr Ludgero’s evidence that it is the pre-eminent body that organises the sport internationally. The IBJJF organises international tournaments and maintains a ranking system for athletes that may be accessed on the internet. Another international operator is the ADCC (Abu Dhabi Combat Championships), although that entity also incorporates other sports that use grappling techniques. Mr Ludgero mentioned that dissatisfaction with the way the sport is organised internationally may mean that a third player will be on the scene soon to pursue Olympic accreditation.
In Australia, there are State federations (for example the Australian Federation of Brazilian Jiu Jitsu Western Australia) that either work cooperatively or report to the national body: the Australian Federation of Brazilian Jiu Jitsu. The Australian national body has been affiliated with the IBJJF previously, but is not at present.
As mentioned above, Mr Ludgero’s record of exceptional and outstanding achievement must be ‘internationally recognised’. Achievement in a sport that has not been recognised at an international level would therefore not meet the criterion.
In my view, the appropriate way to assess Mr Ludgero’s international recognition is through events organised by the IBJJF, including his global ranking, and to a lesser extent the ADCC.
As to IBJJF competition, at the approximate time of the visa application, Mr Ludgero had achieved success at the IBJJF ‘Pan Pacific Championship’ in 2016 where he won first place in his class, and third place in the ‘no gi’ competition (where athletes compete without wearing traditional jiu jitsu robes). In 2017 Mr Ludgero placed first in the ‘no gi’ competition and third in his class.
I noted that the delegate declined to place any weight on results obtained by Mr Ludgero after the date of the visa application. While I recognise that the visa criterion under consideration is to be satisfied at the time of the visa application (22 May 2017), the well-established principle in Bretagv Immigration Review Tribunal [1991] FCA 582 permits me to take into account events after the date of the visa application if they rationally inform me about matters at the time of the visa application. See also Singh v MHA [2018] FCA 1337 at [13] -[14]. I have taken into account Mr Ludgero’s 2017 results and noted he mentioned they were essentially repeated again in 2018.
Mr Ludgero explained that the Pan Pacific championship is always held in Australia, but athletes travel to Australia to compete, for example from the United States and Brazil. Mr Ludgero explained there is also a Pan American championship. By participation in these championships, and others, an athlete can accumulate points which will ultimately lead to an invitation to participate in the IBJJF World Championships.
Mr Ludgero has not competed in the United States. He has competed with success in his home country, Brazil, but not recently. He had not secured an invitation to compete in the IBJJF World Championships at the time of the visa application or subsequently.
As to why he has not secured an invitation to compete in the World Championships or actually competed in the World Championships, Mr Ludgero explained that the difficulty for him is that there is insufficient high-level competition in Australia to attract enough points to be invited. Mr Ludgero explained that he has been unable to travel (for example to the United States) to compete in competitions to gain the required points for financial reasons and due to his commitment to his coaching role in Australia. As I understand it, American athletes may be able to find enough tournaments within the United States to attract points to compete in the World Championships.
I explained to Mr Ludgero that given the nature of the sport as an emerging and non-mainstream sport, I may consider that regional success at the Pan Pacific championships in Australia may be insufficient to demonstrate an internationally recognised record of exceptional and outstanding achievement, where it has not led to invitation or participation at the World championships. I explained that in the context of his sport, I may conclude that his lack of World Championship invitation or competition may indicate that he lacks the required international recognition of exceptional and outstanding achievement, at the time of the visa application.
In response to this concern, Mr Ludgero explained again why he had not participated in the World Championships, drew attention to his success in Brazil in 2012 at a competition that attracted international athletes and developed his point about success in competition and international rankings being less important than a person’s overall development and reputation on account of BJJ being a martial art.
Mr Ludgero also drew attention to his success in the ADCC competition in 2017. That competition was held in Australia, with such competitions held in Australia every 2 years. As I understand it, based on Mr Ludgero’s explanations, the ADCC is based in Abu Dhabi where BJJ is considered an important component of military and para-military training. Abu Dhabi hosts a significant international competition. Mr Ludgero has not competed in Abu Dhabi, and had not competed in any ADCC competitions other than the one held in Australia.
As to the other aspects of the evidence that the policy suggests I consider, I recognise that participation in national teams is not really an appropriate test given the structure of the sport. I have noted supporting statement from a representative of the Australian Federation of Brazilian Jiu Jitsu (WA) addressing the high regard with which Mr Ludgero is held within the Western Australian BJJ community. As to scholarships and sponsorship, I accept Mr Ludgero’s evidence that he attracts sponsorship for clothing, equipment, supplements and entry fees but has not secured support for international travel for competition. He did not know whether other athletes are able to secure sponsorship for international travel. I have taken note of Mr Ludgero’s social media presence as provided to me in his submissions.
I turn to consider Mr Ludgero’s international ranking on the IBJJF system. The delegate had noted that at the time of the application, Mr Ludgero was ranked 217^th in the Male Adult Black Belt division. While this is very impressive, it does not accord with the requirement that the international recognition be exceptional and outstanding. Since then, Mr Ludgero’s ranking on the IBJJF system has dropped to 808, but as discussed with Mr Ludgero at the hearing I place no adverse weight on his current ranking where the global pandemic has prevented travel even for Australian competition, and I must focus in any event on the time of the visa application.
Finally, I note the delegate’s remarks concerning Mr Ludgero’s rank as a holder of a black belt. With the assistance of Mr Ludgero’s explanation as to how the ranking system works within BJJ, I think the delegate may have misunderstood the significance of the fact that Mr Ludgero does not hold higher ranking within the black belt classification. Essentially, while the black belt itself is awarded in recognition of skill and discipline by the coach of the ‘team’ and other black belt holders within the team (Mr Ludgero mentioned that his black belt was withheld for a year because other black belt holders within the Constrictor team wished to demonstrate that he did not receive it because of his father), progression through the ranks within the black belt turns on the effluxion of time, provided one continues to train. It is explained that Mr Ludgero will not be eligible for the 9^th degree black belt until he is 69 years of age. It is not possible for Mr Ludgero to hold a higher rank within the black belt classification on account of his age. I accept this evidence, and recognise that Mr Ludgero holds the highest rank it is possible for him to hold under this system.
I return, as I must, to the issue of international recognition. As an analogy only, I note that in the matter of Singh, a case concerning a wrestler who had competed in both India and Australia, but did not appear on the world ranking system, the Tribunal was not satisfied that competing in national competitions in two countries of itself necessarily translated to an internationally recognised record of exceptional and outstanding achievement. This approach was not disturbed by the court on appeal: Singh v MIBP [2017] FCCA 2992.
In Mr Ludgero’s case, while I accept that the IBJJF Pan Pacific Championships and the Australian ADCC event is likely to have attracted some athletes from outside Australia, given the size and non-mainstream nature of the sport, I consider that participation in World championship events such as the IBJJF World Championships and the ADCC championship in Abu Dhabi is key. Mr Ludgero’s absence from the World Championship events hosted either by the IBJJF or the ADCC indicates to me that he does not hold the internationally recognised record of exceptional and outstanding achievement that is required to satisfy the visa criterion. I am reinforced in this reluctant conclusion by the ranking under the IBJJF system held by Mr Ludgero at the time of the visa application. I use the term ‘reluctantly’ because it is clear from Mr Ludgero’s profile documents and the references of his students and supported that he is very well regarded and highly respected athlete, and has every potential of attracting an internationally recognised record of exceptional and outstanding achievement in the future. My finding turns on international recognition, as it must, and should not detract from Mr Ludgero’s skill and expertise as an athlete.
I have also considered carefully Mr Ludgero’s claim that he should also be recognised as a coach. In this regard, Mr Ludgero is employed at the Mach 1 Fight Club in Perth. I have noted the letter of support offered by Mr Heske in that regard, including the letter provided after the hearing. It is also apparent from the references I have considered that Mr Ludgero has enthusiastic support amongst his students in Perth.
The visa criterion however again requires not only that Mr Ludgero is an excellent coach (which I accept he is), but that as a coach he has an internationally recognised record of exceptional and outstanding achievement. This is a high bar, which I do not consider is met in Mr Ludgero’s case. I have taken into account Mr Ludgero’s association with the training of two world champions from Western Australia, at blue belt and brown belt level. I understand that these athletes achieved their world champion status in Las Vegas and were accompanied to Las Vegas by Mr Heske. While I accept that Mr Ludgero has had significant influence and input into the training of these world champions, I am not satisfied on the evidence before me that it follows that Mr Ludgero therefore holds an internationally recognised record of exceptional and outstanding achievement as a BJJ coach.
After considering all the evidence before me, I have formed the view that it cannot be said that Mr Ludgero holds an internationally recognised record of exceptional and outstanding achievement as an athlete or a coach at the time of the visa application.
This is a difficult finding to pronounce in circumstances where it is clear that Mr Ludgero is a highly gifted, disciplined and well-respected athlete, and so I emphasis that my finding in this regard turns on the need within the Regulations for international recognition of exceptional and outstanding achievement. I have essentially decided that this cannot be satisfied in the absence of invitation to or competition in world championship events (in the context of this sport), and in light of Mr Ludgero’s global ranking under the IBJJF system at the time of the visa application.
I find that at the time of application, the criterion provided for at cl.858.212(2)(a) of Schedule 2 to the regulations was not satisfied, and so cl.858.212 is not satisfied. As this is an essential criterion for the grant of the visa, the visa must be refused.
DECISION
The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas
Marten Kennedy
Member