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…

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.

Continue reading Dos Santos Ludgero (Migration)

Details

AGLC: Dos Santos Ludgero (Migration) [2020] AATA 5464
Case: [2020] AATA 5464
Decision Date: 5 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, made by a Brazilian Jiu Jitsu athlete. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in their sport.

The central legal issue before the Tribunal was whether the applicant met the criterion specified in clause 858.212(2)(a) of Schedule 2 to the *Migration Regulations 1994* (Cth) at the time of their application. This criterion requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a particular field.

The Tribunal found that the applicant, despite being an emerging talent in Brazilian Jiu Jitsu, did not satisfy this essential criterion. The applicant's progress was governed by a coach, and there were limitations regarding international organisation and accreditation within the sport, which in turn restricted international competition opportunities. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 visasMarten KennedyMember

Ratio Decidendi

Legal Principle Established

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