Fox (Migration)

[2022] AATA 3291

Fox (Migration) [2022] AATA 3291 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Charles Stanley Fox

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  1911674

HOME AFFAIRS REFERENCE(S):          BCC2019/1434461

MEMBER:Katie Malyon

DATE:3 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·cl 408.219A of Schedule 2 to the Regulations; and,

·cl.408.222 of Schedule 2 to the Regulations.

Statement made on 03 August 2022 at 12:34 pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – purpose of stay in Australia is to be employed as a coach – an approved Temporary Activities Sponsor – letter of endorsement provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.57, Schedule 2, cls 408.219A, 408.222

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 1 May 2019 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, English national Mr Joseph Charles Stanley Fox, applied for a Subclass 408 visa on 21 March 2019 intending to undertake coaching activities with his sponsor, Manly United Football Club Ltd (Manly United FC). At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant must satisfy the common criteria in Subdivision 408.21 as well as the criteria of one the numerous alternative clauses set out in Subdivision 408.22. Mr Fox applied to meet the requirements in cl 408.222(3) ‘Elite player, coach, instructor or adjudicator’. Relevant criteria from the Regulations referred to in this decision are extracted in the Attachment.

3. The delegate refused to grant the visa on the basis Mr Fox did not satisfy cl 408.222(3) of Schedule 2 to the Regulations because she was not satisfied that Mr Fox had provided a letter of endorsement from the national sporting association responsible for administering the sport in Australia, Football Federation Australia (Football Australia).  A copy of the delegate’s decision was provided to the Tribunal.   

4. In response to the Tribunal’s s 359(2) invitation to provide updated documentation to the Tribunal in anctipcation of a hearing, Mr Fox’s representative, Mr Nigel Dobbie from Dobbie and Devine Immigration Lawyers Pty Ltd, provided the Tribunal with a detailed submission together with a range of documentation in support of the review application.  Documentation included: a ‘B’ Licence issued by Football Australia to Mr Fox valid from 1 June 2019 to 31 December 2023; a signed letter of endorsement from Football Australia dated 27 July 2022 confirming Mr Fox has successfully attained the Asian Football Confederation / Football Australia B Diploma expiring 31 December 2023 and that he may coach within Australia in the various competitions where this accreditation is a requirement, including competitions at the national youth level; a signed letter from Manly United FC dated 20 July 2022 confirming, inter alia, the club agrees to sponsor Mr Fox for a period of 2 years following grant of his Subclass 408 visa; and, Manly United FC’s notification of approval as a Temporary Activities Sponsor for 5 years from 27 July 2022 issued by the Department.

5. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of Mr Fox based on the material before it consistent with s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether a clause in Subdivision 408.22 of Schedule 2 to the Regulations applies to Mr Fox as required by cl 408.219A of Schedule 2 to the Regulations.

8. There are various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations which represent alternative pathways for grant of a Sucalss 408 visa. Mr Fox is seeking to satisfy the ‘Elite player, coach, instructor or adjudicator’ requirements in cl 408.222(3). He has not claimed to meet the ‘Sports trainee’ requirements in cl 408.222(2), or any of the alternative clauses in Subdivision 408.22.

   ‘Elite player, coach, instructor or adjudicator’ requirements  

9. The Tribunal has considered each of the requirements in cl 408.222(3) of Schedule 2 to the Regulations to determine whether Mr Fox meets that clause as a whole and thereby satisfy cl 409.219A.

   Purpose of stay – cl 408.222(3)(a)

10. Subclause 408.222(3)(a) requires that the applicant seeks to enter or remain in Australia to be a player, coach, instructor or adjudicator in relation to an Australian sporting team or organisation.

11. Mr Fox indicated in his Subclass 408 visa application that he intends to fill the position of ‘Head of Youth Football Coach (Boys) U6-U12’ and provided the Department with a signed employment contract with Manly United FC for that position dated 15 March 2019 (the Employment Contract).  The Employment Contract confirms Mr Fox’s employment with Manly United FC for a fixed term of 2 years from grant of his Subclass 408 visa.  Further, it provides he will work an average of 32 hours per week at a salary of $37,500 per annum. 

12. In response to the Tribunal’s request for current and updated information from Mr Fox, the representative has provided a signed letter from Manly United FC dated 20 July 2022 which confirms Mr Fox’s position as a Football Coach, specifically, its Head of Youth Football with responsibility for all players aged 6 - 16.  The letter also confirms he will provide assistance to other team coaches in a mentoring capacity.

13. Further, the signed letter of endorsement from Football Australia dated 22 July 2022 confirms that Mr Fox (Football Australia Number 81709701) currently holds an Asian Football Confederation / Football Australia B Diploma and is therefore competent to coach football in Australia.  As noted above, the Tribunal has also been provided with a copy of Mr Fox’s ‘B’ Licence issued by Football Australia valid for the period from 1 June 2019 to 31 December 2023 (FFA No 81709701).

14. Based on evidence before the Tribunal, it is satisfied that Mr Fox’s purpose of stay in Australia is to be employed as a coach for Many United FC’s players aged 6 - 16.  The Tribunal is also satisfied that Manly United FC is an Australian sporting team or organisation.[1]

    [1] Manly United Football Club | #WeAreManly (manlyunitedfc.com.au)

15. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(a) are met.

    Invitation – cl 408.222(3)(b)

16. Subclause 408.222(3)(b) requires that the applicant has been invited by a sporting organisation that is lawfully operating in Australia to participate in the activity referred to in 408.222(3)(a) in relation to an Australian sporting team or organisation.

17. ‘Sporting organisation’ is defined in reg 2.57 of the Regulations as either an Australian organisation, a government agency or a foreign government agency that administers or promotes sport or sporting events. The terms ‘Australian organisation’, ‘government agency’ and ‘foreign government agency’ are also defined in reg 2.57 of the Regulations.

18. As noted above, the Tribunal is satisfied that Manly United FC is a sporting organisation lawfully operating in Australia.  It has recently been approved by the Department as a Temporary Activities Sponsor for 5 years from 27 July 2022.

19. Based on the evidence lodged with the Department, the Tribunal is satisfied that Mr Fox has been invited by Manly United FC to participate in coaching for the club.  The position description attached to the Employment Contract and as reiterated in the signed letter from Manly United FC dated 20 July 2022 provided to the Tribunal confirm that Mr Fox has been engaged to coach the club’s young players aged 6 - 16 with a view to assisting them in becoming professional football players either at the Manly United FC or other clubs in the A-League and overseas. 

20. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(b) are met.

    Formal arrangements – cl 408.222(3)(c)

21. Subclause 408.222(3)(c) requires that the applicant has entered into a formal arrangement that provides for the applicant to participate as a player, coach, instructor or adjudicator, as relevant, in relation to an Australian sporting team or organisation for a period specified in the arrangement.

22. The Tribunal is satisfied that Mr Fox entered into the Employment Contract with Manly United FC.  The contract provides that Mr Fox will be employed as a Coach with the club for a period of 2 years from grant of his Subclass 408 visa.

23. In his signed letter dated 20 July 2022 addressed to the Tribunal, the Chief Executive Officer of Manly United FC, Mr David Mason, confirms that the club agrees to sponsor Mr Fox for the position of Football Coach for a period of 2 years from the date of grant of his Subclass 408 visa.  Mr Mason also notes in passing that Football Australia does not provide individual letters of endorsement over and above issuing the coaching licence and ensuring all appointments of this nature at professional and semi-professional Australian Football Clubs are filled by coaches who have obtained the licence standards required for specific positions.  The representative has also provided Mr Fox’s most recently approved Working with Children Check issued by Services NSW and which is valid to 29 March 2027. 

24. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(c) are met.

    Letter of endorsement - cl 408.222(3)(d)

25. Sub-clause 408.222(3)(d) requires that the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to, relevantly, coach at the Australian national level.

26. The Tribunal is satisfied, as was the delegate, that Football Australia is the national sporting body responsible for administering the sport of football in Australia.[2]  It is included in the Australian Sports Directory which contains details of all national sponring organizations.[3]    

    [2] Football Australia | The home of the world game

    [3] Australian Sports Directory | Sport Australia

27. As noted above, the delegate refused Mr Fox’s Subclass 408 visa application because she was not satisfied that, as at the date of her decision decision on 1 May 2019, Mr Fox had provided the necessary letter of endorsement from Football Australia.  The delegate referred to a signed letter dated 4 March 2019 from Football Australia that confirms that Mr Fox (FFA No 81709701) holds a Football Australia ‘C’ Licence.  The signed letter expressly states that “(T)his accreditation allows Joseph to coach youth level football in Australia“.  The letter also expressly notes that Football Australia “does not issue coaches individual letters of endorsement”. 

28. Based on this evidence, the delegate was not satisfied that the signed letter of 4 March 2019 confirmed Mr Fox had the ability to coach at the Australian national level.  As a result, on 26 March 2019, the Department sent Mr Fox a s 56 letter requesting he provide ‘evidence of endorsement’ from Football Australia. 

29. Departmental records confirm that Mr Fox provided a further signed letter from Football Australia dated 15 April 2019 which essentially replicated the information referred to above in para [28] but also noted that Football Australia’s ‘C’ Licence “gives Joseph the ability to coach at the Skill Acquisition Phase of any Australian National Premier League club” (emphasis added).  The letter also reiterated that Football Australia “does not issue individual letters of endorsement.”  As set out in the delegate’s decision (a copy of which was provided to the Tribunal) the delegate was not satisfied that the letter dated 15 April 2019 demonstrated Mr Fox had the ability to, relevantly, coach at the Australian national level. 

30. The representative submits, and the Tribunal accepts, that the first letter from Football Australia dated 4 March 2019 made it clear that Mr Fox can coach youth level football at national level in Australia and that this letter should have been treated as an endorsement that Mr Fox can coach at the national level.  Further, the representative submits, and the Tribunal accepts, that the delegate did not give proper consideration to the text of the second letter from Football Australia dated 15 April 2019.  The Tribunal accepts that both letters confirm that Football Australia does not issue individual letters of endorsement.  However, the letters provided by Football Australia to the Department clearly state that Mr Fox holds a ‘C’ Licence issued by by Football Australia and, further, that as a holder of this licence, Mr Fox is able to coach youth football at a national level.  The Tribunal accepts that, as such, Football Australia had certified Mr Fox has the ability to coach youth football at the national level. 

31. More recently, the representative has provided a signed letter dated 22 July 2022 from Oscar Gonzalez, Coach Education Lead of Football Australia, addressed to Mr Mason stating that Mr Fox has now reached a higher licence.  Mr Gonzalez notes that Mr Fox now holds a Level ‘B’ Licence which confirms that he “may coach within Australia in the various compeititions where this accreditation is a requirement, including compeitions at the national youth level”.  A copy of Mr Fox’s ‘B’ Licence issued by Football Australia to Mr Fox as well as Football Australia’s Advanced Licence Reacceditation Information brochure has also been provided to the Tribunal.

32. On the basis of available information, the Tribunal is satisfied that the signed letters provided to the Department as well as the signed letter from Football Australia dated 22 July 2022 each confirm that Mr Fox holds the requisite licenses issued by Football Australia to enable him to coach at the Australian national level.  Each of the letters from the national sporting body responsible for administering football in Australia certify that Mr Fox has the ability to coach at the Australian national level.  The Tribunal accepts that these letters are letters of endorsement which certify Mr Fox’s ability to coach football at the Australian national level.

33. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(d) are met.

    Sporting organisation passes the sponsorship test or the support test – cl 408.222(3)(e)

34. Subclause 408.223(3)(e) requires that the relevant sporting organisation is either a temporary activities sponsor or a long stay activity sponsor and passes ‘the sponsorship test’ in relation to the applicant. Alternatively, if the applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the sporting organisation ‘passes the support test’ in relation to the applicant: cl 408.222(3)(e). The terms ‘passes the sponsorship test’ and ‘pases the support test’ are defined in cl 408.111 of Schedule 2 to the Regulations

35. In this case, Mr Fox was in Australia at the time his Subclass 408 visa application was made on 21 March 2019 and his proposed length of stay stated on the visa application form (as well as the period of employment stipulated in the Employment Contract lodged with the Department) is more than 3 months.  As such, his sponsoring organization is required to be an approved sponsor of the relevant kind which ‘passes the sponsorship test’.  In summary, a person ‘passes the sponsorship test’ if the following requirements are met:

    ·the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and,

    ·either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (‘adverse information’ and ‘associated with’ have the meanings given respectively in regs 1.13A and 1.13B of the Regulations); and,

    ·if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.

36. Departmental records confirm that, at the time of lodgement of the visa application, Mr Fox’s sponsor, Manly United FC, was a Temporary Activities Sponsor.  However, that sponsorship expired on 16 February 2022.  Relevantly, the representative has provided evidence that Manly United FC has recently been approved once again as a Temporary Activities Sponsor.  Its approval is valid for 5 years from 27 July 2022 to 27 July 2027.  The Tribunal accepts that, in its recent consideration of the sponsorship application lodged by Manly United FC and approved on 27 July 2022, the Department would have considered any adverse information known to Immigration about the club. 

37. As noted above at para [23], the representative has provided a signed letter from David Mason, CEO of the Manly United FC dated 20 July 2022, confirming that the club agrees to sponsor Mr Fox for a period of 2 years from the date of grant of a Subclass 408 visa.

38. For these reasons, the Tribunal is satisfied that the requirements of cl 408.222(3)(e) are met.

    Conclusion

39. In light of these cumulative findings, the Tribunal is satisfied that cl 408.222(3) of Schedule 2 to the Regulations applies to Mr Fox. Accordingly, cl 408.219A is met.

40. Given the findings above, the appropriate course is to remit the matter to the Minister for consideration of the remaining criteria for the visa.

    DECISION

41. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl 408.219A of Schedule 2 to the Regulations; and,

    ·cl.408.222 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Subclass 408 – Temporary Activity
    ….

    408.21 Common criteria
    …

    408.219A   A clause in Subdivision 408.22 applies to the applicant.

    408.22 Alternative criteria

    Note: A clause in this Subdivision must apply to the applicant in order for the applicant to satisfy the primary criterion in clause 408.219A.

    ….

    408.222  (1)  This clause applies to the applicant if subclause (2) or (3) applies to the applicant.
    
    

    (2)  Sports trainee  This subclause applies to the applicant if:

    (a)  the applicant seeks to enter or remain in Australia to participate in sport by being trained by a sporting organisation (the relevant sporting organisation ) that is lawfully operating in Australia; and
    (b)  the applicant is a sportsperson or adjudicator who:

    (i)  is currently competing or adjudicating at the Australian national level, or equivalent; or
    (ii)  is endorsed by the relevant peak sporting body in Australia or overseas as having the demonstrated potential to compete or adjudicate at the Australian national level, or equivalent; and

    (c)  the relevant sporting organisation has an international reputation for training elite sportspeople or adjudicators; and
    (d)  the relevant sporting organisation is not a sporting club that, as its primary activity, competes in sporting competitions below the Australian national level for the sport; and
    (e)  either:

    (i)  the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
    (ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months--the relevant sporting organisation passes the support test in relation to the applicant.
    
    

    (3)  Elite player, coach, instructor or adjudicator  This subclause applies to the applicant if:

    (a)  the applicant seeks to enter or remain in Australia to be a player, a coach, an instructor or an adjudicator in relation to an Australian sporting team or sporting organisation; and
    (b)  the applicant has been invited to participate in the activity referred to in paragraph (a) by a sporting organisation (the relevant sporting organisation ) that is lawfully operating in Australia; and
    (c)  the applicant has entered into a formal arrangement that provides for the applicant to participate in the activity referred to in paragraph (a) for a period specified in the arrangement; and
    (d)  the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level; and
    (e)  either:

    (i)  the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
    (ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months--the relevant sporting organisation passes the support test in relation to the applicant.

    oOOo