Haseeb (Migration) - [2023] AATA 3646

Haseeb (Migration) [2023] AATA 3646 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdul Haseeb
REPRESENTATIVE:  Mr George Vassiliou (MARN: 0746634)
CASE NUMBER:  2011780
HOME AFFAIRS REFERENCE(S): BCC2019/41467 BCC2019/4146750

MEMBER:Antonio Dronjic
DATE:13 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Statement made on 13 October 2023 at 2:46pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the sport of cricket – cricket player – contracts for coaching – Australian employment unrelated to cricket – employment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Gaffar v MIMA [2000] FCA 293
Prabhakaran v MICMA [2023] FedCFamC2G 357
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Springs v MICMSMA [2020] FCCA 371
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Zhang v MIMA [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 8 July 2020 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 20 August 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant applied to the Tribunal on 17 July 2020, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
The applicant has been nominated by an Australian organisation, the Melbourne University Cricket Club. The applicant is applying for a distinguished talent visa based on his achievements in the area of sport, specifically as a cricket player.
On 21 August 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets the requirements of cl 858.212(2) or (4) of the Regulations.
On 4 September 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
The applicant appeared before the Tribunal via video link on 28 September 2023 to give evidence and present arguments. He was represented in relation to the review.
On 4 October 2023, the applicant’s representative wrote to the Tribunal stating that the applicant conceded that contracts in relation to Lindisfarne Cricket Club (for under 15 and under 17 teams) were related to coaching and not playing at this team.
On 5 October 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
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.
The application was refused on the basis that the applicant did not meet the requirements of cl 858.212(2)(a) and therefore cl 858.212. This clause relevantly provides:
858.212
(1) The applicant meets the requirements of subclause (2) or (4).
(2) 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 approved form 1000; and
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.
(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:
(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or
(b) the Director-General of Security;
the applicant has provided specialised assistance to the Australian Government in matters of security.
The applicant has not made any claims in relation to cl 858.212(4).
The applicant’s claim depends on whether he can satisfy cl 858.212(2)(a)(iii) of Schedule 2 to the Regulations. At the outset, the Tribunal notes that this is a time of application criteria. However, In Prabhakaran v MICMA,[1] the Court held that this did not connect grammatically to the terms of cl 858.212 and that the text of the clauses under the subheading did not support any general conclusion that the criteria in that part spoke exclusively to matters which must be satisfied at the time of application. Rather, cl 858.212 allows a decision‑maker to consider events and circumstances that arise between the date of the visa application and the date of the decision.
[1] Prabhakaran v MICMA [2023] FedCFamC2G 357 at [56].
Internationally recognised record of exceptional and outstanding achievement
The Tribunal observes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl 858.212(2)(a) is not defined in the Regulations. However, the Tribunal notes that the concept of ‘record of exceptional and outstanding achievement’ has been the subject of judicial consideration.
In particular, the Courts have held that the ordinary meaning of ‘record’ does not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a ‘record’ is an aggregation or a list, not necessarily a large aggregation or a long list.[2]
[2] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].
‘Achievement’ as it appears in the relevant criterion is capable of denoting a single achievement and also of operating as a mass noun to denote two or more achievements.[3]
[3] Springs v MICMSMA [2020] FCCA 371 at [61].
In addition, the Courts have held that in determining whether the applicant has a ‘record of exceptional and outstanding 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 and Indigenous Affairs, French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’.[4]
[4] Gaffar v MIMA [2000] FCA 293 at [20].
As a result, the Tribunal acknowledges that 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.
In considering this issue, the Tribunal has had regard to the Department’s Procedures Advice Manual related to the distinguished talent visa. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209, Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision-makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
The applicant is 26 years of age and a national of Canada. He first arrived in Australia in September 2018 as a holder of a working holiday visa. He gave evidence that he came to Australia to develop his game and pursue his career as a professional cricket player because in Canada, cricket is not a hugely popular game. He realised that, despite his achievements, he was not able to make a living as a cricket player in Canada.
The applicant stated in his evidence that some of his best achievements include playing for Canada’s junior national team in 2014, representing Canada at the 2016 Cricket World Cup (for players under 19 years of age) in Bangladesh and his selection into the Canadian development squad in 2017 where he was shortlisted among the best 24 players.
In 2018, he was selected to Canada’s T20 national team and played in one national T20 tournament in Canada.
Upon arriving in Australia, he played two seasons (2018/19 and 2019/20) at the Melbourne University Cricket Club (MUCC). He started at the lowest level, level five, but soon after was promoted to play for the second grade team. He stated that he played between eight and 10 games for the grade one MUCC team in the T20 competition in Australia. He was not paid for playing cricket at the MUCC. According to the applicant’s explanation, although the MUCC is competing in the Victorian Premier Cricket competition, none of the players playing for the State of Victoria are paid as Cricket Australia does not allow that.
According to the applicant’s evidence, only players representing Victoria can sign professional contracts and be paid for playing cricket. According to his understanding, he can only play for the State of Victoria if he is an Australian permanent resident. He added that in 2019, he joined training sessions with both the Victorian and Australian national squad.
When questioned as to how he made a living in Australia while being an unpaid cricket player at the MUCC, the applicant gave evidence that he is a qualified mechanic and that he worked at a Toyota dealership during the cricket off-season. He added that the cricket season in Australia is from October to March. He also stated that he worked as an Uber driver.
During the 2020/21 cricket season, the applicant moved to Tasmania upon invitation made by the New Town Cricket Club, a Tasmanian club playing in the Tasmanian Premier division. The next two cricket seasons he played for the Lindisfarne Cricket Club, another Tasmanian team playing in the Tasmanian Premier division.
When questioned, the applicant stated that he signed professional contracts with both of those Tasmanian cricket clubs and was paid a salary of approximately $45,000. He further stated that he was invited to play in the 2022/23 cricket season by Lindisfarne Cricket Club. The applicant conceded that past payment was made for his role of a coach rather that a player of the club.
The Tribunal noted that he departed Australia in March 2023 and enquired whether the applicant continued to play cricket in Canada between March 2023 and present time. He gave evidence that he is playing for the Crescent Cricket Club, a provincial club. He explained that in Canada they do not have State teams.
When questioned, the applicant stated that he has not played any international cricket games since arriving in Australia in 2018.
The Tribunal observed that, with the visa application, he provided an extract of his playing profile according to which, in 2017, his player rank was 4686. The Tribunal enquired if there is an international player ranking, and if so, what his current rank is. The applicant gave evidence that an International Cricket Council is administering cricket players’ rankings and undertook to provide evidence of his current ranking on or before 5 October 2023. As of the day of this decision, he has not provided this information.
The Tribunal explained the requirements of cl 858.212 and observed that in his evidence the applicant stated that he came to Australia to play cricket to improve his skills. The Tribunal observed that a distinguished talent visa was designed to attract individuals with an internationally recognised record of exceptional and outstanding achievement and those individuals are usually leaders in their particular field.
The Tribunal has considered the evidence provided by the applicant’s nominator, the applicant’s submissions, oral evidence and letters of support. Based on the evidence before it, the Tribunal is not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport as a cricket player.
Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl 858.212(2)(a).
DECISION
The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.
Antonio Dronjic
Member

Attachment A: Document List
·Submission from representative George Vassiliou dated August 2023.
·Letter of support from Cricket Canada signed by Ingleton Liburd dated 30 August 2023.
·Statement from Mr Haseeb dated 29 August 2023.
·Letter of support from Lindisfarne Cricket Club signed by Roger Hutchinson dated 24 August 2023.
·Letter of support from Cricket Tasmania signed by Thomas Barwick dated 22 August 2023.
·Letter of support from Manitoba Cricket Association Inc signed by Ron Dipchand dated 25 August 2023.
·Letter of support from Melbourne University Cricket Club signed by Daniel Hutton undated.
·Letter of support from Lindisfarne Cricket Club signed by Nathan Ellis undated.
·Letter of support from Lindisfarne Cricket Club signed by Matt Wilkie undated.
Attachment B: Document List
·Statement from the applicant’s representative George Vassiliou dated October 2023.
·Facebook message from Michael Hayes regarding Preston Cricket Club dated 12 June 2019.
·Facebook message from Paul Boraston head coach of Frankston Peninsula Cricket Club head coach dated 8 May 2020.
·Facebook message from Warren Ayres regarding Dandenong Cricket Club dated 10 June 2020.
·Player contract from Lindisfarne Cricket Club dated 4 October 2023.
·Contract offer letter from Lindisfarne Cricket Club undated.