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

1. 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).

2. The visa applicant applied for the visa on 1 June 2017.

3. 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.

4. 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.

5. 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 demonstrate him having an internationally recognised record of achievement as a BJJ coach.

6. The applicant appeared before the Tribunal on 28 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Alex de Araujo Paz a fellow coach and mentor and Morgan Endicott-Davies the applicant’s employer, the applicant’s partner Ms Anna Louise Hodgson attended the hearing but did not give evidence to the Tribunal.

7. The applicant was represented in relation to the review by his registered migration agent Mr Troy Sanders who also attended the review hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. The applicant provided the Tribunal with his personal details. The applicant advised that he held a German passport obtained through his German grandfather but that he had not lived in Germany.

15. The Tribunal asked the applicant about his coaching career in BJJ. The applicant advised that he commenced his coaching career in 2009 in the United Kingdom. The applicant stated that he commenced practising BJJ when he was 14 and that he had obtained 7 belts in BJJ and currently held a black-belt.

16. The applicant stated that he was attracted to BJJ which was popular in Brazil and that he excelled in the sport from an early age competing in the national titles in Brazil and also assisting in coaching from a young age. The applicant stated that he spent the last year of high school in the United States in San Bernardino where he completed a scholarship pursuing American-style wrestling. The applicant stated that after completing high school in the United States he returned to Brazil and completed studies in hospitality management. The applicant stated that during the period of his studies he focused on academia and that his training was inconsistent. The applicant stated that he moved to the United Kingdom after completing his studies and that he worked in a variety of positions in London, though predominantly as a concierge for a hotel in Soho. The applicant advised that in 2009 he returned to BJJ training and competing in European tournaments. The applicant stated that he trained with the best BJJ school in the United Kingdom at the time and was invited by the school to be involved in their development program. The applicant stated that at this point he was immersed in learning how to coach BJJ from children through to adults. The applicant stated that he was involved in teaching at a number of London locations. The applicant stated that he advanced to purple belt by the end of 2009. The applicant stated that around this time he was much more extensively involved in training and coaching and that the owners of the BJJ school that he worked for believed that the applicant had the requisite skills to rise through the ranks of coaches in BJJ. The applicant stated that while he was involved in a coaching role in the United Kingdom one of his students won a top 3 place in the British Nationals and second place in the London International Open, a competition in which 10 countries competed. The applicant made reference to 2 of his students Antony Chahal and Leoni Muslow who have achieved significant success in international competitions. The applicant advised that Miss Muslow won a number of significant competitions including the London Open, the Munich Open, the Rome Open and the Swedish Open. The applicant stated that he also coached students at Swiss Cottage in London who reached International standard and competed in international tournaments. The applicant advised that Ms Muslow was current world champion in her particular class.

17. A written reference from Mr Chahal was provided to the Tribunal. Mr Chahal advised that he was the head coach and black-belt at the New School of BJJ in the United Kingdom. Mr Chahal advised that whilst he trained under the applicant he achieved the following results in competitions. He was a gold medallist in the British Open Masters 2010; a silver medallist in the British Open Masters 2011; a gold medallist in the IBJJF London International Open in 2012; a gold medallist in the British Open 2013; a silver medallist in the IBJFF Rome International Open in 2013. Mr Chahal also advised that the applicant had coached him during the World Pro in Abu Dhabi in 2014 for which he achieved a silver medal. The letter of endorsement states that the applicant’s coaching was world-class and that he recommended Australia take advantage of everything that the applicant had to offer the BJJ community in Australia.

18. The applicant advised the Tribunal that he then relocated to the UAE who are desperately trying to have BJJ recognised as an Olympic sport. The applicant stated that when he coached BJJ in the UAE he achieved significant success with the national team. The applicant stated there were 500 BJJ coaches in the UAE and only 15 were selected to coach the national team of which he was one and that he was chosen because of his skill set.

19. The applicant advised the Tribunal that he worked in the UAE between 2013 and 2016 for Palm Sports. Palm Sports is the largest jiu-jitsu academy in the UAE with 100,000 students, 600 jiu-jitsu coaches and 33 training academies.  The applicant stated that the position was well paid and did not attract tax.

20. The applicant advised that he travelled to Australia on 6 September 2016 as the holder of a working holiday visa. The applicant stated that whilst holding this visa he worked for Australian Top Ten Team in Wentworthville as BJJ instructor and coach. The applicant described the business as a mixed martial arts gym with 70 members. The applicant advised that in the time that he had been working in this business BJJ classes had grown exponentially. The applicant stated that he had been involved in coaching individuals who had competed at the Australian Nationals the Pan Pacific’s, the Continental Pro, the Asian Pacific’s and the National Pro.  The applicant made reference to four specific students who had placed in the Continental Pro, the Australian National Pro and a competitor who had placed in the National Pro. The applicant advised that he was currently the National Australian champion in his age group. The applicant stated that he was involved in coaching in a range of mixed martial arts gym is in the Sydney metropolitan area. The applicant stated that he was also involved in voluntary work and community programs teaching BJJ at Police Citizens Clubs and also in the NSW Police ‘Youth Off the Streets’ Programmes. 

21. The Tribunal took evidence from Mr Alex de Araujo Paz. The witness advised that he had met the applicant in Abu Dhabi in the UAE when he was national coach of the UAE team, a position that he held for 10 years.  The witness stated that he was involved in extensive training programs and that he was looking for a highly skilled coach to assist him with the national team in the UAE. The witness stated that he needed someone with specific skills and that the applicant had the requisite skill set. The witness stated that he had been involved in the coaching of many champions during his 29 years of involvement with BJJ.  The witness stated that he had worked extensively with the applicant in Australia in the coaching of BJJ. The witness advised the Tribunal that he believed that the applicant had a high level coaching ability and had demonstrated this in both United Kingdom and the UAE prior to coming to Australia. The witness also provided written testimony to the Tribunal pertaining to the applicants skills prior to the hearing.

22. The Tribunal took evidence from Mr Morgan Endicott-Davies. Mr Davies advised the Tribunal that he ran a business in Silverwater called Zenbu. He described it as a mixed martial arts facility and a dojo for grappling martial arts. The witness advised the Tribunal that he had represented Australia in judo in the 2004 Olympics. The witness advised that there were similar techniques in judo and BJJ. The witness stated that the applicant possessed unique knowledge and skills as a specialist coach in BJJ and has been involved in a high level coaching in Australia with success. The witness also provided written testimony to the Tribunal pertaining to the applicants skills prior to the hearing.

23. The Tribunal received additional evidence from the applicant’s representative prior to the review hearing in a submission dated 21 May 2019 The submission included a number of annexures. The Tribunal also received an additional submission dated 27 May 2019 with a number of annexures pertaining to the applicants skills and success as a coach in BJJ. These additional documents have been duly considered by the Tribunal.

    ASSESSMENT AGAINST THE CRITERIA

24. There are a number of elements within cl.858.212(2) which need to be satisfied.  The first is whether the applicant has an internationally recognised record of exceptional and outstanding achievement in one of the areas set out in cl.858.212(2)(a).  The applicant’s nominated area is in the area of sports, namely as a coach of of Brazilian Jiu Jitsu.

    Internationally Recognised Record

25. In determining whether the applicant has a “record of exceptional and outstanding achievement”, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary: see Gaffar v MIMIA[2000]FCA293 where the court considered the phrase “exceptional record of achievement” in an earlier category of skilled residence visa. 

26. 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.  A record is an aggregation or a list, no necessarily a large aggregation or a long list: see Zhang v MIMA and Anor [2007]FMCA664.

    FINDINGS AND REASONS

27. The applicant in this case claims that he has an internationally recognised record of exceptional and outstanding achievement in a sport BJJ and in a profession, namely as a Jiu-Jitsu coach and instructor. In support of the applicant's claims, the applicant provided a range of material which has been referred to extensively in this decision, inclusive of statements from colleagues, former students who have achieved international success and from coaches in BJJ who themselves have an international reputation in BJJ. As has been noted the applicant has provided a range of evidence indicative of his own international achievements as a participant in BJJ along with evidence that he has achieved international success with students in the United Kingdom and within the UAE.

28. The Tribunal finds that BJJ may be classified as a sport, and the coaching and instruction in BJJ may be classified as a profession for the purpose of cl.858.212(a).

29. In determining whether the applicant has an international record of exceptional and outstanding achievement as a coach of BJJ, the Tribunal has considered all of the evidence provided with the visa application as well as that submitted to the Department, along with the supplementary evidence provided by the applicant at review, and evidence provided by the applicant and his witnesses during the review hearing. The Tribunal notes that at the time of visa application the applicant had extensive experience as a coach in the United Kingdom and in the UAE.  The applicant himself holds a BJJ black belt under Jose Henrique Leao Teixeira, himself a BJJ 7^th degree Coral Belt and a person linked to the Gracie family. Over a period of 3 years the applicant coached a number of students to international victories including podium finishes in international BJJ competitions including Anthony Chahal, Leoni Munslow, Cat Necula and William Lau. The evidence before the Tribunal indicates that the applicant also achieved significant success as a black belt coach when employed by Palm Sports in the UAE and as has been noted the applicant was selected from a large field to be one of 15 coaches selected to coach the National UAE team and this was from a pool of some 500 black belts.

30. The evidence before the Tribunal indicates that the applicant has also been involved in coaching elite judo practitioners who hope to represent Australia in that sport in the 2024 Paris Olympics.

31. Having regard to the reasoning in the case of Gaffar, namely that the legislative requirement does not require something that makes the applicant's record unusual or special or out of the ordinary, the Tribunal is satisfied based on the evidence before it that the applicants sporting achievements and ongoing commitment to the sport of BJJ as a coach indicates that the applicant has made a substantial contribution to his sport and remains prominent as a proponent of Brazilian Jiu-Jitsu. The Tribunal is accordingly satisfied that the applicant meets the requirements of cl.858.212(2)(a).

32. The evidence before the Tribunal indicates that there is significant support within the Australian community for the applicant’s skills and abilities and support from the Australian Federation of Brazilian Jiu-Jitsu. The Tribunal is satisfied that the applicant would be an asset to the Australian community. The Tribunal is satisfied that the applicant meets the requirements of cl.858.212(2)(c).

33. The applicant has been involved in coaching BJJ for many years at an international level and has attained international success with his student and his employers and associates in BJJ attest to his high level of skill and commitment to BJJ. The applicant as noted has provided evidence from members of the community who have benefited from the coaching offered by him in BJJ and this has extended to the sport of Judo which according to the evidence submitted at review has a number of attributes in common with BJJ. The Tribunal accepts that the applicant would have no difficulty in obtaining employment or indeed becoming established independently in Australia in the area of BJJ coaching and substantial evidence corroborative of this fact has been provided at review.

1. The applicant was nominated by Bruno Almeida Alves Paulo who is a Brazilian Jiu Jitsu black belt under Zé Radiola (formerly from the Gracie Barra– Pernambuco) academy. Mr Paulo won medals in the middle weight division in tournaments such as the World Championship, the European Open and the Pan American Championships.  The Tribunal is satisfied that the applicant produced an approved form 1000. On this basis the applicant meets cl.858.212(e).

2. It follows the Tribunal is satisfied that the applicant meets cl.858.212(2) and therefore the requirements of cl.858.212.

   CONCLUSIONS

3. 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

4. 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 Cipolla
   Senior Member