HUSSAIN (Migration)

[2018] AATA 5330

HUSSAIN (Migration) [2018] AATA 5330 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Ali Hussain

CASE NUMBER:  1607246

DIBP REFERENCE(S):  BCC2016/1622320

MEMBER:Amanda Mendes Da Costa

DATE:26 October 2018

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 26 October 2018 at 4:11pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – talented cricketer – skills as a bowler particularly in ‘leg spin’ – member of Pakistan’s Under-16 and Under-19 national team – Pakistan domestic first-class and list A teams – record of achievement in the field (as opposed to expertise) – decision under review affirmed

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

CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
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 9 May 2016 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 3 May 2016. The delegate refused to grant the visa on the basis that although the applicant’s achievements as a cricketer were not at the highest standard of competition, i.e. matches involving national teams in the sports’ three variances of international competition; Test cricket, One Day Internationals and Twenty20 Internationals.

3. The applicant appeared before the Tribunal on 12 July 2018 to give evidence and present arguments.  The Tribunal also heard evidence from Shaun Janetzki and Andrew Lowe.

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

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met.

9. Paragraph 858.212(2)(a) requires the applicant has 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(a)(i) 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(a) is not defined in the Migration Regulations 1994 (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.prominant; 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 and Indigenous 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. 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) 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 Departmental guidelines (procedures Advice Manual 3, or PAM 3) state inter alia the following:

    applicants should be very eminent in the top echelons of the field;

    they should demonstrate extraordinary and remarkable abilities and be superior to others in the ‘field’;

    claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement;

    a single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as exceptional and outstanding achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

    an achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has would attract similar acclaim in those countries;

    an applicant would be expected to have achievements remarkable in relation to that filed and in relation to other participants in that field.  An applicant should be at the very top of the ‘field’.

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.

20. The Tribunal notes that the following documents were provided to the Department by the applicant:

    ·Reference letter from Danny Law, Club Captain, Keilor Cricket Club, dated 1 September 2012.

    ·Reference letter from Saud Khan, Coach of the Lahore Regions Cricket Club, dated 1 December 2015.

    ·Reference letter from Chris Armstrong, Coach of the Sunshine YCW (Sunshine) Cricket Club, dated 5 December 2015.

    ·Reference letter from Andrew Lowe, player at the Sunshine Cricket Club dated 6 December 2015.

    ·Reference letter from M. Ashraf Nadeem, general secretary, Sui Northern Gas Pipelines Limited, dated 11 December 2015.

    ·Reference letter from Shaun Janetzki, President of the Sunshine Cricket Club dated 21 December 2015.

    ·Reference letter from Graham Yallop, Former Australian Test Cricket Captain, undated.

21. The Tribunal was provided with the following documents by the applicant for the purpose of this review:

    ·Applicant’s contract with Sunshine Cricket Club dated 10 May 2017.

    ·Reference from Misbah ul-Haq (Pakistani Test Cricket Captain) dated 22 December 2016 with accompanying photograph of the applicant and Mr ul-Haq together.

    ·Reference from Imran Tahir, South African Cricket team member, dated 23 February 2017.

    ·Various newspaper articles about the applicant.

    ·Certificates of completion for various Cricket Australia courses.

    ·Applicant’s curriculum vitae.

    ·Written submissions dated 19 July 2018.

22. Mr ul-Haq was a member of the Pakistani National Cricket Team from 2001 to 2017.  He captained the team in all three formats of the highest level of the game – Test, One-Day and Twenty20 cricket.  At the time he authored his reference, Mr ul-Haq was the captain of the Pakistan Test Cricket team. He attests to playing cricket with Mr Hussain at the first class level and the fact that the applicant is recognised for his cricket skills and for being an all-round team player.

23. Mr ul-Haq opines:

    Based on my international cricketing experience in my experience with Syed Ali Hussain’s cricketing ability, I can attest Syed Ali Hussain’s high standing within both the international cricketing community and the Pakistan cricket community.

    Syed Ali Hussain has played cricket in Pakistan’s first-class system. This is recognised as being of an extremely high standard of cricket internationally. In playing this competition, Syed Ali Hussain’s cricket skills were recognised internationally as being one of the best in his field, and better than many of his compatriots.

24. Mr Tahir is a Pakistani born South African cricketer who has played Test, One Day and Twenty20 cricket for South Africa since 2011.  He has had a number of achievements as an international player, including becoming the first South African bowler to take seven wickets in a One Day International match in June 2016 and being the fastest South African to reach 50 Twenty20 wickets in February 2017.  In his reference Mr Tahir notes that he was then ranked the best One Day International and Twenty20 player in world cricket.

25. Mr Tahir opines (unedited):

    I have played first-class cricket with Syed Ali Hussain and watched his skill for many years. He is undoubtedly one of the finest players of spin bowling in the world. As a leg spin bowler I still continue to practice with him when I am afforded the opportunity as it allows me to better my own skill against the best quality opposition.

    Based on my knowledge and experience within the cricket industry I know that Sayed Ali Hussain skill and determination is much greater the most of his contemporaries. I’m certain that if given the chance Sayed Ali Hussain will be able to represent Australia at the highest level.

    Summary of the applicant’s evidence

26. Mr Hussain is a national of Pakistan.  He commenced playing cricket at the age of five or six years, with his brothers.  Although cricket is a very popular game in Pakistan, he was the first member of his family to play competitive cricket.  He was chosen by selectors (including former Test team captain Imran Khan) be a member of the Pakistan Under-16 national team.  The team was chosen from approximately 600 to 700 potential players.  He also played in the Under-19 team which played the Australian Under-19 teams when it toured Pakistan with Allen Boarder, a former Australian Test team captain, as its coach.

27. From the Under-19 team, Mr Hussain graduated to Grade II and then Grade I competition in Pakistan, playing with teams such as Pakistan Railways and Sui Southern Gas Corporation in Pakistan

28. Mr Hussain told the Tribunal that he experienced considerable difficulties in being selected as a member of Pakistan’s national and internal cricket teams due to his lack of ‘connections’ and family influence, rather than any lack of skill at the game.  When it became apparent to him as a young adult that he could progress his career as a cricketer no further in Pakistan he moved to the United Kingdom and more recently to Australia.

29. In the United Kingdom, Mr Hussain was involved with Great Horton Cricket Club in Bradford as a player in 2000; Kidsgrove Cricket Club in Staffordshire as a senior player and coach in 2001 and Burslem Cricket Club in Staffordshire between 2002 and 2003 as a player. In each of these clubs he played first class cricket.

30. Mr Hussain arrived in Australia in 2010 and has since played with Keilor, Williamstown CYMS and Sunshine Cricket Club in Melbourne.  

31. Mr Hussain commenced as a player with the Sunshine Cricket Club during the 2015/2016 season and later took on an additional role as coach to both junior and senior players.  He has maintained those roles with the club and is currently playing in the senior team.  He told the Tribunal that as a coach he found it very satisfying to help other players reach their potential and enjoyed showing batters how to cope with spin bowling which is ‘king’ on the Indian/Pakistan subcontinent.

32. In his curriculum vitae, the applicant lists his major achievements as follows:

    ·achieving international recognition by his contemporaries as an exceptional adversary of spin bowling to the extent that the number 1 spin bowler in the world (Imran Tahir) practices with him;

    ·assisting in the promotion of the Lahore Region Cricket Association, Sui Northern Gas Pipelines Ltd, Sui Southern Gas Corporation, Keilor Cricket Club, Sunshine Cricket Club (amongst others) to higher divisions in their promotion/relegation systems; and

    ·providing significant coaching to both junior and senior players of Sunshine Cricket Club resulting in the number of practice session attendees exponentially growing.

    Evidence of Shaun Janetzki

33. Mr Janetzki is the president of the Sunshine Cricket Club.  He told the Tribunal that he was responsible for ensuring the growth of the club and recruiting players.  He said that the club members were particularly concerned to nuture its junior players.  Mr Janetzki explained that the applicant was introduced to the club by its previous coach.

34. Mr Janetzki described the applicant as a skilful player and coach who had instilled a renewed commitment to making the club more professional and committed to moving up the grades in the local competition. He told the Tribunal that the applicant had the ability to bring the best out of the club’s players, particularly in relation to his skills as a spin bowler and that the club hoped that the applicant would remain with it for many seasons to come.

35. Mr Janetzki  explained that the applicant’s ‘international’ experience as a player and his skills as a spin bowler were of particular benefit to the club as Australia does not have a significant number of Test cricket players specialising in spin bowling.  Accordingly, the applicant’s talent and patience in teaching spin bowling to the junior members of the club is likely to improve the skills of future adult players.

    Evidence of Andrew Lowe

36. Mr Lowe is a player with the Sunshine Cricket Club and was the club’s assistant coach in the 2016/2017 season.  He told the Tribunal that the applicant had brought a more professional approach to the club’s players and had significantly improved the standard of playing.  He has volunteered as an honorary coach at the Victorian Cricket School and participated in a youth cricket skills coaching and development program to promote the game of cricket.

    Submissions

37. The submissions by the applicant’s representative may be summarised as follows:

    ·There is no requirement that the applicant be a household name in the way Shane Warne is, for him to be considered to have an internationally recognised record of exceptional and outstanding achievement as a cricket player.  In that respect the decision of the Tribunal (with a differently constituted Member) in the matter of Vandort [2018] AATA 1538 (9 April 2018) is apposite.

    ·The applicant meets the requirements of cl.858.212(2)(a) if he is recognised by his peers as having such a record.

    ·The applicant’s references, particularly those of Misbah ul-Haq and Imran Tahir demonstrate that the applicant does have an internationally recognised record of exceptional and outstanding talent in the field of cricket.

    ·The references also confirm that the applicant is still prominent in the sport, especially as a coach and is capable of playing cricket at the highest level.

    ·The applicant is listed in the ESPNcricinfo which is an online database owned by Wisden (the publishers of the Cricketers’ Almanack) which lists cricket players with national and international recognition.

    ·Departmental policy guidelines state that an applicant would be expected to have achievements remarkable in relation to their field and in relation to their peers who are also positioned as the very best in the field.  The references for the applicant demonstrate that the applicant fulfils those requirements.

38. The Tribunal notes that reference to ESPNcricinfo shows that the applicant’s career achievements include:

    ·No fewer than 38 first-class matches, predominantly played at domestic level.

    ·No fewer than 12 list A-level matches, predominately played at domestic level.

    ·No fewer than 2 Twenty20 matches, predominantly played at domestic level.

    ·Team representative in the Pakistan Under-16 and Under-19 teams.

    ·Team representative for Pakistan domestic first-class and list A teams including Lahore Sui Southern Gas Corporation.

    ·Team representative for Pakistan Twenty20 teams including Lahore Eagles.

    ·Team representative for English teams including Kidsgrove Cricket Club and Great Horton Cricket Club.

    ·Team representative for Victorian local teams including Sunshine Cricket Club, Roxburgh Park Broadmeadows Cricket Club and Keilor Cricket Club.

1. Included in the material provided to the Department were a number of press clippings from articles published in 2001 and 2002 which mentioned the applicant’s play in the patron’s Trophy Grade II in Lahore, Pakistan and an article in 2012 regarding the applicant’s run rate in a game between Keilor Cricket Club and the Doutta Stars team in the Victorian Turf Cricket Association competition.

2. The Tribunal is satisfied that the applicant was a promising and talented junior cricketer in Pakistan who was a member of the Under-16 and Under-19 teams.  In these teams the applicant played at a national level.  However, in adult competition, the applicant has played at a domestic level albeit at times in first class competitions.

3. Mr Hussain told the Tribunal about his experiences as a player/coach with Sunshine Cricket Club and the achievements of the senior’s team since his arrival at the clubs.  These include the promotion of the club to a higher division, the First XI team winning its first premiership in 13 years and improving player numbers throughout the club.  He said that spin bowling had not traditionally been practised by players in Australia’s national and international teams.  Mr Hussain said that teaching spin bowling to other players, particularly juniors, required a high degree of patience for him as a coach and that spin bowling as a style of bowling was becoming increasingly popular with young cricket players in Australia. The Tribunal accepts that the applicant has been a great asset to the Sunshine Cricket Club and has made a significant contribution to the participation and performance of both junior and senior players.

4. The Tribunal accepts that Mr Hussain is a talented cricketer whose skills as a bowler, particularly in ‘leg spin’ are recognised by other players such as Misbah ul-Haq and Imran Tahir, who occupy positions at the top of their field.  However, the Tribunal notes that cl.858.212(2) requires not only that an applicant is extraordinarily talented in their nominated filed, but also that she/he has a record of achievement in their field which is extraordinary.

5. Although the Tribunal acknowledges that Mr Hussain is regarded by his referees as capable of playing cricket at the highest levels and that his activities as a coach are laudable, it is not satisfied that that the applicant’s achievements (as opposed to his expertise) as either a coach or player demonstrate that at the time of application, he had a record of exceptional and outstanding achievement in cricket. 

6. Accordingly, the Tribunal is not satisfied that the applicant meets cl.858.212(2)(a) and having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.

   Amanda Mendes Da Costa
   Member