Henrichs Pinto (Migration) - [2019] AATA 3509

Henrichs Pinto (Migration) [2019] AATA 3509 (18 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kalil Gibran Henrichs Pinto
Ms Anna Louise Hodgson
CASE NUMBER:  1811222
DIBP REFERENCE(S):  BCC2017/2018752
MEMBER:John Cipolla
DATE:18 June 2019
PLACE OF DECISION:  Sydney
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 for a subclass 858(Distinguished Talent) visa:
cl.858.212 of Schedule 2 to the Regulations

Statement made on 18 June 2019 at 10:20am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – exceptional and outstanding achievement – Brazilian Jiu-Jitsu – skills and abilities – ongoing commitment – decision under review remitted

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

Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA and Anor [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 Immigration on 16 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).
The visa applicant applied for the visa on 1 June 2017.
The Subclass 858 visa is a permanent visa for individuals who have a record of exceptional and outstanding achievement, internationally recognised, 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 criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations.
The applicant made an application for a Subclass 858 Distinguished Talent visa on 1 June 2017. The visa application was made by the applicant on the basis of his achievements in as a coach in the field of Brazilian Jiu-Jitsu (BJJ). The applicant was nominated by Bruno Almeida Alves.
Recourse to the delegate’s decision record indicates that the delegate could not be satisfied that the applicant had an international record of exceptional and outstanding achievement as a coach in BJJ. The delegate noted that the applicant’s career as a BJJ coach began in Brazil in the year 2000 as an assistant instructor for the China/Liboni Jiu-Jitsu School. The applicant later instructed for the Brazilian Jiu-Jitsu School United Kingdom where he trained and coached on a full time basis. He later moved to the United Arab Emirates where he worked for Palm Sports LLC as a part of a team of 15 team leaders amongst 500 black belts, delivering programs to schools, the military and the UAE Presidential Guard. He relocated to Australia in 2015 and commenced coaching in 2016 at the Mixed Martial Arts (MMA) Gym Australian Top Team in Wentworthville, Sydney. The delegate concluded that although the applicant’s skills enabled him to gain employment in Brazil, the UK, UAE and Australia, they were not sufficient to…

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 Henrichs Pinto (Migration)

Details

AGLC: Henrichs Pinto (Migration) [2019] AATA 3509
Case: [2019] AATA 3509
Decision Date: 18 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by Henrichs Pinto against a decision regarding his application for a Distinguished Talent (Residence) Class BX visa, Subclass 858. The dispute centred on whether Mr Pinto possessed an internationally recognised record of exceptional and outstanding achievement in Brazilian Jiu-Jitsu (BJJ), was still prominent in the field, and would be an asset to the Australian community with no difficulty in obtaining employment or establishing himself independently. The decision was made by the Tribunal.

The legal issues before the Tribunal were to determine if the applicant, at the time of his visa application on 1 June 2017, had an internationally recognised record of exceptional and outstanding achievement in BJJ. Furthermore, the Tribunal had to assess if he remained prominent in the sport and would be an asset to the Australian community, capable of securing employment or establishing himself independently in Australia within the BJJ field.

The Tribunal considered evidence from departmental files, material provided at the review, and evidence presented by the applicant and his witnesses. The applicant, born in Brazil in 1984, held a German passport and had previously entered Australia on a Working Holiday visa. His visa application was supported by a nomination from an individual who had successfully obtained permanent residency through the Distinguished Talent program and had established a significant BJJ academy in Australia. The nominator's statement detailed the applicant's successful coaching history in the United Kingdom and the United Arab Emirates, including his role as a supervisor coach and national team leader in the UAE. The Tribunal conducted a review hearing where it explained the merits review process and its independent role.

Ultimately, the Tribunal found that the applicant met criterion cl.858.212(2) of Schedule 2 to the Regulations, which is a prescribed criterion for the grant of a Subclass 858 (Distinguished Talent) visa. Consequently, the Tribunal remitted the application for reconsideration by the Department with the direction that the applicant meets this specific criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether at time of visa application on 1 June 2017 the applicant, had an internationally recognised record of exceptional and outstanding achievement in the sport of BJJ. Further to this that he is still prominent in the area and would be an asset to the Australian community and would have no difficulty in obtaining employment or in becoming established independently in Australia in the area of BJJ. The Tribunal has had regard to the Departmental files pertaining to the applicant. The Tribunal has also had regard to evidence provided at review along with evidence provided by the applicant and his witnesses at the review hearing on 28 May 2019. The evidence before the Tribunal indicates that the applicant was born in Sao Paulo Brazil on 1 October 1984. The applicant holds a German passport. The evidence indicates that the applicant first came to Australia as the holder of a Working Holiday visa on 6 September 2016. The applicant applied for the visa that is the subject of this review on 1 June 2017. The application was accompanied by a Form 1000 required to nominate the applicant for a Distinguished Talent visa which was completed by Mr Bruno Almeida Alves. Annexed to the nomination form was a statement from the nominator. The statement indicates that the nominator had been granted Australian permanent residence through a Distinguished Talent program and that he had established a BJJ academy in Crows Nest with affiliate schools in Maroubra and Dee Why with in excess of 400 students. The statement also outlines the significant and successful history of the nominator in the sport of BJJ. The statement makes reference to the applicant having an exceptional and outstanding record of achievement in BJJ coaching noting that the applicant had been a successful coach in the United Kingdom and the United Arab Emirates. The statement notes that BJJ is very prominent in the United Arab Emirates and that the applicant was promoted to a supervisor coach, one of 15 national team leaders chosen from a pool of over 500 black-belt instructors to be involved in the national coaching programs in the UAE. The statement from the nominator goes on to outline why the applicant would be an asset to the Australian community and how he would be able to maintain ongoing employment in the Australian community without any problems. The Tribunal conducted a review hearing on 28 May 2019 and as has been noted above the applicant attended along with 2 witnesses, his partner, and his representative. At the outset of the review hearing the Tribunal advised the applicant that it had reviewed the Departmental files and the material that had been provided to the Tribunal at review stage. The Tribunal explained to the applicant in detail about the merits review process and the prospective outcomes of the review. The Tribunal noted that it was an independent review body and was not connected to the Department. The Tribunal noted that it was required to carefully consider all the evidence before it and determine whether the applicant met relevant criteria pertaining to the grant of a Distinguished Talent visa.

Decision

Reasons for decision

For the reasons outlined in this decision the Tribunal finds that the applicant meets cl.858.212(2), which is a prescribed criterion for the grant of Subclass 858 (Distinguished Talent) visa. The matter will now be remitted to the Department for reconsideration.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 for a subclass 858(Distinguished Talent) visa:cl.858.212 of Schedule 2 to the Regulations John CipollaSenior Member

Ratio Decidendi

Legal Principle Established

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