Gautam (Migration)

[2019] AATA 3000

Gautam (Migration) [2019] AATA 3000 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunam Gautam

CASE NUMBER:  1812273

DIBP REFERENCE(S):  BCC2017/999562

MEMBER:Amanda Mendes Da Costa

DATE:16 May 2019

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 16 May 2019 at 12:43pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – cricketer – early order right-handed batsman – right-arm spin bowler – junior player for Nepal in international competitions – trainer of elite athletes – current prominence in the field – well recognised by other players, officials, peak bodies/associations and media – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212

CASES
Cristiano Moretzsohn (Migration) [2018] AATA 2016
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Henry Dolphin [2004] MRTA 7537
Vandort (Migration) [2018] AATA 1538

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 Immigration on 12 April 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).

2. The visa applicant applied for the visa on 14 March 2017. The delegate refused to grant the visa on the basis that he did not meet cl.858.212(2)(a) of the Migration Regulations 1994 (the Regulations) because he did not have an internationally recognised record of exceptional and outstanding achievement in the sport of cricket.

3. The applicant appeared before the Tribunal on 4 December 2018 and 20 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mervyn Hughes and Dr David Maddocks.

4. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).

   Subclause (2) sets out the following requirements:

   The applicant:

   (a)has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:

   (i)a profession;

   (ii)a sport;

   (iii)the arts;

   (iv)academia and research; and

   (b)is still prominent in the area; and

   (c)  would be an asset to the Australian community; and

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

   (e)  produces a completed approval form 1000.

   Note:    An approved form 1000 requires the applicant’s record of achievement in an area (as mentioned in paragraph (a)) to be attested to by (a) an Australian citizen; or (b) an Australian permanent resident; or (c) an eligible New Zealand citizen; or (d) an Australian organisation; who has a national reputation in relation to the area.

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

7. The applicant has not made any claims in relation to cl.858.212(4).

8. The Tribunal notes that the applicant must meet all of the criteria in cl.858.212(2).

9. Clause 858.212(2)(a) requires the applicant to have an internationally recognised record of outstanding achievement in a profession; a sport; the arts; or academia and research.

10. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a cricketer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(ii) as belonging to a sport for the purposes of cl.858.212(2)(a).

11. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Regulations.

12. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

13. According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined to mean: ‘1. forming an exception or unusual instance; unusual; extraordinary; 2. extraordinarily good, as of a performance or product; 3. extraordinarily skilled, talented, or clever.’ It also defines the word ‘outstanding’ to mean: ‘1. prominent; conspicuous; striking; 2. that continues in existence; that remains unsettled, unpaid, etc.; 3. standing out; projecting; detached; 4. that resists or opposes.’

14. The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. Notably in Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’. The Tribunal also observes, however, that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity. The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an ‘internationally recognised record of exceptional and outstanding achievement’. Therefore Gaffar’s case has limited application in the current context. The Tribunal acknowledges, however, that while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

15. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, as apposite. The Tribunal notes the comments of Kiefel J at [49]–[50]:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

16. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2)(a) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

17. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase ‘internationally recognised record of exceptional and outstanding achievement’. The Tribunal further notes that the Department of Immigration (the Department) guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement (PAM – Sch-2 Visa 858 – Distinguished Talent).

18. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it. Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the Regulations, the Tribunal is required to depart from it. The Tribunal has taken into account the individual circumstances of the applicant.

19. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

    Documentation provided to the Tribunal

20. The Tribunal notes that it has been provided with documentation attesting to the applicant’s career in the field of cricket:

    ·Newspaper article, Hume Leader, 21.11.17 re performance with Greenvale Kangaroos Cricket Club (GKCC) and including a reference to applicant.

    ·Article on Cricket Network re game of cricket in Nepal and including references to applicant and photograph of applicant and former Australian Test player David Warner, together.

    ·Letter dated 10 March 2017 from applicant’s migration agent to Department, with biography of applicant with:

    ·Statement by applicant describing his involvement with the “Himalayan Kids Program”.

    ·Sporting photographs, news articles and social media posts regarding the “Himalayan Kids Program”.

    ·Reference, Mr Udaya Prakash Shah, Office Secretary, Cricket Association of Nepal, dated 23 December 2012.

    ·Reference, Dr David Maddocks, Director of Cricket Victoria, 13 October 2014.

    ·Appointment of applicant as “Sport for All Community Ambassador” for season 2016/2017.

    ·Playing Contract for 2016/2017 season between GKCC and applicant.

    ·Reference, Mr Keshab Sapkota, Secretary, The Himalayan Club, dated 9 November 2016.

    ·Certificate of Appreciation, Nepalese Association of Victoria.

    ·Letter of invitation to applicant to play with the Dallas Gladiators Cricket Club, Dallas, Texas, US, Faisal Akhtar, President of Grand Prairie Cricket Club & Gladiators Cricket Club, dated 8 May 2016.

    ·Reference, Mr Sudhir Shakya, President, Nepalese Association of Victoria dated 28 August 2014.

    ·Reference, Mr Duncan Harrison, Regional Cricket manager – West Metro, dated 11 March 2014.

    ·Invitation to applicant to participate in final trial for Melbourne Stars BBL Community Rookie contract, 25 November 2016.

    ·Reference, Mr Bruce Kent, President Greenvale Kangaroos Cricket Club, 9 March 2017.

    ·Various newspaper articles regarding the applicant’s cricketing career and his activities in promoting cricket.

    ·Batting Averages and Aggregates Sheet for the 2018/2019 season.

    ·Applicant’s submissions, dated 23 November 2018.

21. The applicant is a Nepalese born cricketer whose career achievements in Nepal include:

    ·Representing Nepal ACC U-17 Elite Cup 2005.

    ·Representing Nepal ACC U-19 Elite Cup 2007.

    ·Representing Nepal in the National Senior squads.

    ·Participating in the 5th National Games 2015, Kathmandu, Nepal.

    ·Participating in the 6th National Games 2016, Dhangi, Nepal.

    ·Playing in the Chitwan Tigers Everest Premier League, a Twenty20 tournament which is renowned for having high attendances among the domestic cricket teams of the International Cricket Committee.

    ·Team representative for Footscray–Edgewater Cricket Club, Victorian Premier Cricket.

    ·Team representative for the Greenvale Kangaroos Cricket Club, Victorian Premier Cricket.

    ·Trained with Melbourne Stars and Melbourne Renegades Big Bash League.

22. He arrived in Australia in 2013 for the purpose of studying Sports Science at Victoria University. Whilst in Australia he has played for the Footscray–Edgewater Cricket Club and the Greenvale Kangaroos Cricket Club. The Tribunal notes that both of these clubs are members of the Victorian Premier Cricket from which players for the Victorian Shield and the Australian national team are selected.

23. The applicant provided the Tribunal with a Batting Averages and Aggregates sheet for the 2018/2019 season for the Kookaburra men’s Premier First competition. It shows that the applicant made 350 runs and had a strike rate of 83% for the season. He ranked 9 out of 279 players in the competition.

    Evidence of Duncan Harrison

24. Mr Harrison attests to the applicant’s role as a player with the Footscray–Edgewater Cricket Club in the Victorian Premier Cricket competition. He states that Victorian Premier Cricket is the elite club cricket competition in Victoria, administered by Cricket Victoria. Mr Harrison further explains that outstanding players in the competition are selected to play for the Victorian Bushrangers at first-class and List A level, in the Sheffield Shield and Ryobi Cup competitions. During the 2014 season, the applicant was invited to bowl to the Melbourne Stars and Melbourne Renegades Big Bash teams to assist them with their preparations for the summer season.

    Evidence of Bruce Kent

25. Mr Kent attests to his position as the President of the Greenvale Kangaroos Cricket Club. He notes that the Club plays in Cricket Victoria’s Premier competition, the highest level of club cricket in Victoria and the competition from which the Victorian State team is selected.

26. Mr Kent attests to the applicant’s role as a player with the Club since 2014. He describes the applicant as a very significant player for the Club and a valuable coach and mentor to his fellow players.

27. The Tribunal notes that in his reference Mr Udaya Prakash Shah, the Office Secretary of the Cricket Association of Nepal, dated 23 December 2012, attests to the applicant’s representation of Nepal in the ACC U-17 Elite Cup in August 2005 and the ACC U-19 Elite Cup in August 2007.

28. In 2016 the applicant was appointed a Sport for All Community Ambassador by Cricket Australia for the 2016/2017 season. This is a diversity and inclusion program organised and sponsored by Cricket Australia. The program assists clubs or associations through diversity programs, education and training and access to funding.

    Evidence of Mervyn Hughes

29. Mr Hughes is a former Australian cricketer. A fast bowler, he represented Australia in 53 Test matches between 1985 and 1994 and played in 33 One Day Internationals. He also played First Class cricket for Victoria between 1981/1982 and 1994/1995 and was an Australian cricket selector from 2005 to 2010 and has been on the coaching staff for the Footscray–Edgewater Cricket Club in the Victorian Premier Cricket competition for a number of years.

30. Mr Hughes adopted the contents of his statutory declaration dated 11 July 2015. He told the Tribunal that he had known the applicant for approximately seven years and was involved in coaching him when he played for the Footscray–Edgewater cricket team.

31. Mr Hughes described the applicant as an exceptionally talented cricketer who showed enormous ability as an early order right-handed batsman, capable of batting high up in the order and was able to play both fast and slow bowling as well. Mr Hughes explained that the applicant’s speed made him a very good runner between wickets and he was a talented right-arm spin bowler. The latter skill made the applicant particularly valuable in the shorter forms of the game such as One Day and Twenty20 competitions. The applicant was also an exceptional fieldsman with great speed and agility.

32. Mr Hughes told the Tribunal that the selection of the applicant as a junior player for Nepal in international competitions demonstrated that he was an outstanding player and was a prospect for selection in the national side at a senior level. Mr Hughes said that the applicant’s representation of Nepal at the junior level was extremely significant given that the standard of international competition at a junior level there was very high.

33. In addition to this Mr Hughes referred the Tribunal to the applicant’s contribution to cricketing programs for children in both Nepal and Australia and to the promotion of cricket in the Nepalese community in Victoria.

    Evidence of Dr David Maddocks

34. Dr Maddocks is a solicitor and has a doctorate in neuropsychology. He is currently a member of the Board of Cricket Victoria. Although Dr Maddocks is a partner in the firm of solicitors currently representing the applicant in this review, he does not have carriage of the matter. He was previously the president of North Melbourne Cricket Club which subsequently became Greenvale Kangaroos Cricket Club – where the applicant is a player. He has known the applicant for the past five years. Dr Maddocks adopted the contents of his reference for the applicant, dated 13 October 2014. He described the applicant as an exceptional talent in all areas of the game of cricket. In his opinion, the applicant was an elite player who had made an outstanding contribution to cricket in Nepal and Australia and the Nepalese community in both countries.

35. Dr Maddocks referred to the applicant’s representation of Nepal in various tournaments for a number of years, including a number of international under-age competitions. He said that the applicant had made an outstanding contribution to cricket in Australia and particularly Victoria in the last three years, playing Victorian Premier Cricket for the Footscray–Edgewater and Greenvale Kangaroos teams in their First XI teams.

36. Mr Hughes and Dr Maddocks explained that given the applicant’s exceptional skills as a cricket player, if he was living in Nepal he would likely be playing in Twenty20 and One Day International competitions for that country. The Tribunal notes that Nepal does not presently compete in Test cricket competitions.

37. Dr Maddocks and Mr Hughes also opined that premier league players are in the top echelons of all cricketers in Australia and that the applicant is in the top percentage of such players.

38. The Tribunal has also been provided with documentation (including an article from the Cricket Network) regarding the applicant’s activities as the instigator and organiser of an exhibition cricket match and expedition in Nepal as a tribute to the late Phillip Hughes, an Australian Test player who died after being injured in a cricket match. The Tribunal notes that the members of the expedition from Australia included the Test cricketer David Warner.

39. The applicant’s migration agent referred the Tribunal to the case of Cristiano Moretzsohn (Migration) [2018] AATA 2016 in which the Tribunal found that the applicant who was employed as a rowing coach had trained a number of athletes who had achieved prominence in the sport at a state, national and international level. On the basis of his reputation as a trainer of elite athletes, he had an international record of exceptional and outstanding achievement in the sport of rowing. It was argued on behalf of the applicant that this case was apposite to his circumstances given that the applicant in that case was the coach of a domestic and not the national or an international team. The Tribunal found in that case that although the applicant was involved in domestic club coaching, the evidence demonstrated that he has an internationally recognised record of exceptional and outstanding achievement.

40. The Tribunal is satisfied on the totality of the evidence that the applicant does have an internationally recognised record of exceptional and outstanding achievement in the sport of cricket. Accordingly cl.858.212(2)(a) is met.

41. Clause 858.212(2)(b) requires that the applicant is still prominent in the area. In the case of Henry Dolphin [2004] MRTA 7537 the visa applicant was playing cricket at a district level and achieving strong results. Whilst the Tribunal accepted that the applicant was not playing at the highest level in cricket in Victoria, it found that he was playing in a well-regarded competition and was an important and well-known player in that competition. On that basis the Tribunal found the applicant to be still prominent in that field.

1. In the recent decision of Vandort (Migration) [2018] AATA 1538 (9 April 2018) (Vandort’s case) in which the applicant was a Sri Lankan cricket player, the delegate refused the application on the grounds that the applicant was not still prominent in the field. The member in Vandort’s case made the following observation:

   19. During the hearing the representative posited that the test to determine prominence is not the ‘Shane Warne test’; being that even individuals not familiar with cricket must know the name and identify and associate the individual with the sport, as they would with the mention of Shane Warne’s name for instance. But rather, the test is that the applicant is recognised as prominent by those within the field and for cricket would be; officials, other players, peak bodies/associations, media, fans and so forth. The Tribunal agrees that the ‘Shane Warne test’ is not the correct method to measure prominence.

   20. In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ‘stands out’ in his field and is ‘important’ and ‘well known’ by others within his sport.

2. The Tribunal is satisfied that the decision in Vandort’s case is apposite to the applicant in this review and the approach taken by the Member in that case should be applied to the applicant’s circumstances. The Tribunal finds that the evidence of Dr Maddocks and Mr Hughes who are prominent persons in the cricket community attests to the fact that the applicant ‘stands out’ and is ‘important’ within the sport. Although he may not be famous as far as the public is concerned, he has prominence in the field of cricket due to his experience at a local and international level, his continued high performance as a cricket player in Victorian Premier Cricket and his activities to promote the sport of cricket both here and in Nepal.

3. The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used. The Macquarie Dictionary Online defines the word as meaning ‘important’; ‘leading’; ‘well-known’.

4. The Tribunal is satisfied from all of the evidence before it (both documentary and oral) that at the time of application, the applicant was still prominent in the field of cricket. The Tribunal accepts that he was well recognised as prominent by other cricket players, officials, peak bodies/associations and media.  Accordingly the Tribunal finds that cl.858.212(2)(b) is met.

5. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. Since his arrival in Australia the applicant has been involved in playing and coaching cricket, particularly to junior players. He has been involved in a mentoring program sponsored by Cricket Australia and coaching children and adults in the Nepalese community in Australia. He has also organised an expedition to and a match in Nepal to commemorate an Australian Test cricketer.

6. The Tribunal acknowledges that improving the participation of young Australians in sporting activity is of benefit, not only to them but the wider Australian community. Accordingly the Tribunal is satisfied that cl.858.212(2)(c) was met at the time of application.

7. The Tribunal is satisfied that the evidence shows that at the time of application, the applicant had gained employment as a player and coach and therefore is satisfied the applicant would have had no difficulty in obtaining employment or becoming established independently in Australia in the area of cricket. The Tribunal finds that cl.858.212(2)(d) does not require that such employment is full time. Accordingly the Tribunal is satisfied that cl.858.212(2)(d) is met.

8. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed Form 1000 signed by Bruce Kent, President of the Greenvale Kangaroos Cricket Club and dated 9.3.17 was submitted with the visa application. The nominating organisation is Greenvale Kangaroos Cricket Club, which has a national reputation in the field of cricket as it has teams in the Victorian Premier Cricket competition as part of Cricket Victoria and has produced (along with its predecessor in name, North Melbourne Cricket Club), a number of Test cricketers for Australia and many Victorian state players. Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.

9. The Tribunal is satisfied that given the applicant’s age (29 years) at the time of application the provisions of cl.858.212(2)(f) do not apply to him.

10. As the applicant meets all of the requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

11. Given the above findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 858 visa.

    DECISION

12. 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.

    Amanda Mendes Da Costa
    Member