Jee (Migration)

Jee (Migration) [2019] AATA 1897 (11 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Minhyung Jee
Mr Jihun Choe
CASE NUMBER:  1820799
DIBP REFERENCE(S):  BCC2017/4900653 and BCC2018/5918
MEMBER:Susan Trotter
DATE AND TIME OF
ORAL DECISION:  11 February 2019 at 1:31 pm (QLD time)
DATE OF WRITTEN REASONS:              20 February 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 858 visa:
·cl.858.212 of Schedule 2 to the Regulations.

Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the second-named applicant.

Statement made on 20 February 2019 at 12:36pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – internationally recognised – exceptional and outstanding achievement – table tennis competitor – top female player –distinguished career – significant asset – applicant still prominent – must demonstrate granting of visa will benefit Australian community – no difficulty obtaining employment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Schedule 2 cls 858.212, 858.321(2)
CASES

Gaffar v MIMA [2000] FCA 293
Zhang v MIMA [2007] FMCA 664
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 4 July 2018 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under the Migration Act 1958 (the Act).
At the hearing on 11 February 2019, the Tribunal made an oral decision. The following are the written reasons for that decision.
STATEMENT OF DECISION AND REASONS
The first-named applicant (the applicant) is a 32-year-old citizen of the Republic of South Korea. The second-named applicant is identified in the visa application as the applicant’s partner.
The Subclass 858 (Distinguished Talent) 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 criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The applicants applied for the visas on 21 December 2017 on the basis that the applicant satisfied the primary criteria as she had an internationally recognised record of exceptional and outstanding achievement in the sports area of table tennis.
The delegate refused to grant the visas on the basis that they were not satisfied that the evidence provided demonstrated that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sports area of table tennis as required by cl.858.212(2)(a). Further the delegate was not satisfied that either applicant was the member of a family unit of a person who, having satisfied the primary criteria, was a holder of a Subclass 858 visa such that cl.858.321(2) was satisfied in relation to either of them.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 18 July 2018.
The applicants appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Scott Houston, Chief Executive Officer of Table Tennis Australia, Trevor Barrett, President of Table Tennis Queensland and Jason Walsh, Executive Officer, Table Tennis Queensland.
The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES
An applicant for a Subclass 858 visa is required to meet cl.858.212(2) or (4).
Clause 858.212(2) requires that at the time of the visa application, 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
(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.
Clause 858.212(4) requires that an applicant has provided specialised assistance to the Australian Government in matters of security. There is no claim made that the applicant is seeking to meet this subclause. It is not applicable in this case.
It follows that the issues to be determined by the Tribunal are as follows, assessed at the time of the visa application:
(a) Did the applicant have an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically table tennis? And, if so,
(b) Was the applicant still prominent in the area? And, if so,
(c) Would the applicant be an asset to the Australian community? And, if so,
(d) Would the applicant have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area? And, if so,
(e) Had the applicant produced a completed approved form 1000? And, if so,
(f) If the applicant had not turned 18, or was at least 55 years old, at the time of application – would the applicant be of exceptional benefit to the Australian community?
CONSIDERATION OF CLAIMS AND EVIDENCE
As already noted, the applicant applied for the visa on the basis of her record and achievements as a table tennis player. She was nominated, in a Form 1000 that accompanied her visa application, by an Australian organisation, Table Tennis Queensland. The form was signed and dated by the President of that organisation, Trevor Barrett, on 22 October 2017.
The Tribunal has considered all relevant facts and matters, including the documentary and oral evidence provided.
Issue 1 – Did the applicant have an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically table tennis?
An applicant must be recognised in their field (sport) at an international level as having a record of exceptional and outstanding achievement.
‘Exceptional and outstanding achievement’ is not defined in the Act or the Regulations. Department policy (PAM3) gives guidance as follows:
What does ‘exceptional’ mean
For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to their peers in their field.
‘Internationally recognised’ in this context means that a person’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.
‘Exceptional’ and ‘outstanding’ are those who are internationally recognised as leaders in their particular field.
Policy requirements
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 ‘international recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.
Given the ordinary dictionary meanings, in order to have a ‘record of exceptional and outstanding achievement’ an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field. An applicant should be at the very top of their field.
Assessing this criterion
In assessing the applicant’s record of achievement, officers may take into account information such as, indicated in the following eight example:
·Information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement
·Supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia
·Supporting statements from internationally recognised individuals or organisations in the field who can pass comment on the applicant’s achievements and the applicant’s reputation within the field.
·Awards or higher qualifications received from internationally recognised institutions or organisations
·Details and supporting material on sporting achievements; including:
o   national and international rankings and
o   results in competitions or tournaments and
o   statements from international sporting bodies and
o   sporting scholarships received and
o   newspaper and magazine articles attesting to achievements.
·Details and supporting material on achievements in the arts including:
o   books published and
o   national and internationals sales achieved and
o   awards and commissions received and
o   galleries in which works are displayed and
o   scale and audience of displays held and
o   recognition by peers and
o   honours and accolades (for example, an Academy Award, or a Nobel Prize in Literature) and
o   academic qualifications associated with the applicant’s area of the arts and
o   statements from international artistic bodies and
o   newspaper and magazine articles attesting to achievements.
·Details and supporting material on academic and research achievements, including:
o   reports commissioned and
o   books published and
o   articles appearing in professional journals, magazines and newspapers and
o   awards received and
o   recognition by peers and
o   statements of achievement from government, professional, scientific or other relevant bodies and
o   honours and accolades (for example, a Nobel Prize in Medicine) and
o   professional designation such as PhD, P.Eng or M.D, whether this be purely honorary or symbolic, or associated with credentials attesting to specific competence, learning or skills and
o   membership to international groups and organisations associated with the area of learning and
o   evidence of government/private grants associated with the applicant’s area of research and
o   evidence of receiving a fellowship or honorary appointments such as Professor or Associate Professor in highly regarded educational institutions that specialise in the same field.
·Details and supporting material on professional achievements including:
o   industry awards and accolades and
o   references from current and past employers and
o   statements from prominent industry peers and
o   academic degrees or professional designations associated with the applicant’s field of work and
o   personal/professional titles (such as CEO, Lord, Knight, Right Honourable) indicating an earned rank or position within a formal power structure.
The internet is an important source of additional material and a method of confirming the accuracy of any claims made. Any adverse or conflicting information obtained from this source should be put to the applicant for comment.
International recognition required
Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.
It is expected that an applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in the wider Australian community as well as international standing. In determining the international standing of the applicant, officers should consider:
·the international standing of the country, where the applicant’s achievements were realised, in respect of the particular field
·the standing of the achievement in relation to Australian standards and
·the standing of the achievement in relation to international standards.
For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:
·field is undertaken and recognised in a number of countries including Australia and
·achievement would be similarly recognised in relation to international and Australian standards for that field.
Evidence and submissions as to the applicant’s top accolades in table tennis show some of the following achievements of the applicant in the field of table tennis:
1997–2004
·     Various participation and results in National events in Korea
2003
·     Asian Junior Table Tennis Championships, India
·     World Table Tennis Championships, Chile
2004
·     Korean Open
·     Asian Junior Table Tennis Championships, India
2005 World Junior Table Tennis Championships, Japan
2007 Korean Open
2011
·     National Team Table Tennis Championships for the President’s Cup, Team 1^st, Doubles 1^st
·     National Sports Festival Team 1^st, Singles 2^nd
·     National Classified Table Tennis Championships, Doubles 1^st
·     2011 Shenzhen Universiade Games, Women’s Doubles Bronze medal, China
2012
·     National Sports Festival, Team 2^nd, Singles 3^rd
·     National Classified Table Tennis Championships, Team 2^nd, Singles 2^nd
2013
·     National Classified Table Tennis Championships, Doubles 1^st
·     National Team Championships for the President’s Cup, Doubles 1^st, Team 3^rd
·     Kazan Universiade Games, participated in the game as the national team member, Russia
·     National Sports Festival, Singles 2^nd, Team 2^nd
·     Department of Sports and Culture Table Tennis Championships, Team 1^st
2014
·     National Team Championships for the President’s Cup, Team 1^st
·     Korea Business Table Tennis League, Doubles 3^rd, Team 2^nd, Singles 2^nd, Mixed doubles 2^nd, Doubles 1^st
2015 Vietnam Golden Racket Championships, Team 1^st
2016
·     Korean Business Table Tennis League, Team 1^st, Doubles 1^st
·     2016 Autumn Korean Business Table Tennis Event
·     97^th National Sports Festival
·     National Classified Table Tennis Championships, Team 3^rd
2017 Queensland Senior Female Player of the Year
2018 University of Queensland Open Championships, Women’s singles 1^st
2018 Wynnum Open, Women’s singles 1^st
2018 Brisbane Open, Women’s singles 1^st
2018 Queensland Championships, Women’s singles 1^st
2018 Australia National Championships, Women’s singles 1^st (won against Jian Fang Lay (WR66))
2018 Australia National Championships, Mixed doubles 3^rd
2018 Australia National Championships, outstanding achievement award
Other evidence before the Tribunal in relation to the applicant included as follows:
(a) A letter from Seung Min Ryu, member of the International Olympic Committee dated 2 September 2017 stating, among other things, in relation to the applicant:
(i)He met the applicant when she was selected for the Korean national team as a high school student and they trained together for the Athens Olympic Games in 2004.
(ii)In 2005, the applicant won the Rookie of the Year award and from then continuously won first or second place in every Korean national competition and was able to play for the Korean junior national team.
(iii)The applicant was chosen as a national player for the senior Korean national team, participated in the ITTF World tour and won a bronze medal at the Universiade Games.
(b) A reference from Carolyn Li dated 5 November 2018 stating her knowledge of the applicant since 2017 when the applicant came to Fiji for a month in November 2017 to prepare Fiji’s National Women’s and Men’s teams for the 2017 Mini South Pacific Games, followed by her preparing Fiji’s National Juniors and Cadets players for the 2018 Youth Olympic Games and the 2018 World Cade Challenge from 27 August to 5 October 2018.
(c) A letter from Trevor Barrett, President, Table Tennis Queensland, dated 25 November 2018 stating, among other things, in relation to the applicant:
(i)The applicant has become an icon in Australian Women’s Table Tennis and is currently the number one ranked Australia female table tennis competitor such that she is not only in the top echelon of the sport in Australia but is the benchmark player to which to aspire for all other female Australian table tennis players.
(ii)The applicant has been ranked in the top female players in the world, which is a remarkable achievement in a group where there is very little difference in players with very few Australian players (male or female) ever having achieved a top 100 ranking, with the top Australian male player currently ranked at 120 and the top Australian female player ranked at 70, a player whom the applicant defeated in a decisive victory in the 2018 Australian Open.
(iii)The applicant’s country of origin, Korea, is a significant force in world table tennis and to participate in a Korean national team, as was achieved by the applicant, is an outstanding achievement.
(iv)He has witnessed the applicant against very highly ranked players at the recent International Table Tennis Federation World Championship event on the Gold Coast where the applicant remains highly competitive at that level of competition.
(v)Teenage players are currently placed in the top 10 in both men’s and women’s world rankings such that the applicant’s achievements as a junior player should be recognised as significant.
(d) A letter from Scott Houston, Chief Executive Officer, Table Tennis Australia, dated 16 November 2018 stating, among other things, in relation to the applicant:
(i)Before arriving in Australia, the applicant had a distinguished career in South Korea as a table tennis athlete, where she played professionally and was a member of the national team over many years and won multiple medals at international events.
(ii)Since arriving in Australia, the applicant has made an ongoing contribution to Australian table tennis as shown by her number 1 ranking in Australia in 2018.
The applicant’s evidence at hearing included as follows:
(a) She first started playing table tennis at the age of 10. Within five years her skills had improved. From the age of 16/17, she started being recognised nationally as the best player in Korea. When she was 18, she was in the top 100 international list. From then until the age of 20 was her prime time. After the age of 21, she did not participate in many matches and was not a professional team member because she had a shoulder injury in 2009. She rehabilitated and then attended the International University Games in 2011 when she received a Bronze medal. Then in 2015, as part of the Korean team, she won the Vietnam Golden Racket.
(b) As regards the letter from Mr Ryu, the reference to her training with him for the Athens Olympic Games was when she was a high school student. No one was part of the team as a high school student so that was quite a remarkable achievement. There were 10 males and 10 females. She was given the privilege of being involved in the training for that team.
(c) She recently defeated a player ranked 70 in the world. The world ranking system is a not uncomplicated system and she currently does not have a ranking because the tournaments she has chosen to play have not qualified her. She has predominantly been based in Australia since December 2016. Throughout 2017 she participated in club tournaments throughout Queensland and also at Australian national tournaments. In 2017 she attended the National Championships and qualified as a team player and won third place. In 2018 she came first in the singles at the National Championships and also participated in the team competition placing third in the doubles. The Australian Open is a platinum-level international tournament.

Mr Houston’s evidence at hearing included as follows:
(a) He first met the applicant at the Australian National Championships in 2017 which was the first time he had seen her play. At the time she was a new player in the Queensland team in the national competition and he became aware of her past achievements. From an international perspective being a member of the Korean team at any level is a very high achievement because of the quality and quantity of players coming out of Korea, with the world’s strongest countries in the sport of table tennis being China, Korea, Japan, Germany (men’s) and Taiwan.
(b) He considers the applicant would be a significant asset to the Australian community and that she would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area of table tennis. Table Tennis Australia has a new strategic plan focusing on key areas of performance and participation. From a performance perspective the applicant’s results speak for themselves and by being in and competing in Australia, the applicant provides Australian players with a high level of competition which will push them on, which they would not otherwise have. From a participation perspective table tennis is a sport with a historical connection to Asian countries with a high proportion of players in Australia from Asian countries/migrant backgrounds. Having someone who has moved to Australia by their own choice and has become part of the system and part of the culture will help others transition.
Mr Walsh’s evidence at hearing included as follows:
(a) The applicant most definitely has a high international record. Additionally she has now obtained nationally recognised coaching accreditation which will assist with her employment in the future. She will also be able to continue to participate at a very high level with table tennis being the type of sport that is not as necessarily limiting age wise as other sports.
Mr Barrett’s evidence at hearing included as follows:
(a) He first saw the applicant at a regional tournament in Bundaberg and rapidly came to a conclusion that she is an exceptional player. He looked up her rankings and at the time she had a better ranking than the highest Queensland ranked player even though the applicant had not played for some time and was just coming back in to the game. He then became more aware of her extensive history in the sport and recognised her as having an exceptional and outstanding international record.
(b) At the 2017 Australian Open he watched the applicant play a top 50 world ranked player and she was extremely competitive against her even though just coming back in to the sport (after injury).
(c) Her achievements are remarkable. Anyone in the top 100 at any age is an extremely good player. Also worth mentioning is that there are three women who have represented Australia at the Olympics and Commonwealth Games and the applicant has defeated all three of them since coming to Australia.
(d) The applicant’s achievements at both junior and senior level have been at a very high level. Further, the applicant is a great ambassador and role model for the sport. She makes herself freely available to assist others without obligation.
Mr Choe’s evidence to the Tribunal included as follows:
(a) South Korea is ranked third in the world in women’s table tennis such that the applicant’s achievements in South Korea must be regarded as achievement in the top echelons of the world.
(b) The applicant started actively playing table tennis when she was in primary school in South Korea and when she was in high school in 2005, she began showing her excellence in table tennis by winning many domestic and international competitions including the World Junior Table Tennis Championships in 2004 and as a participant in the International Table Tennis Federation World Tours in 2006 and 2007.
(c) The applicant’s achievements as a junior should not be disregarded because players at ages 19 and 20 are at the prime age as sportspersons and could be said to be in the period when their ability as sportspersons is at the highest in their life. Although, notably, with table tennis, players have an extended life to more senior ages, as compared to other sports.
(d) The applicant’s highest ranking was 85^th in 2007 and 251^st in 2017 when her application was lodged.
(e) Although the applicant was not a winner at the Olympic Games, she should still be regarded as being in the top echelons of table tennis. She was in the first-place team at the 2015 Vietnam Golden Racket Championships and won a bronze medal in women’s doubles at the 2011 Shenzhen Universiade Games, an international competition, in addition to numerous international competitions for under 21s with the applicant becoming the best women’s table tennis player in Australia in 2018.
It is clear from the wording of cl.858.212(2)(a) that in considering whether the applicant had an internationally recognised record of exceptional and outstanding achievement in table tennis at the time of the visa application, the Tribunal is not confined to considering the applicant’s record just at that time, but can have regard to earlier achievements.
The Tribunal has carefully considered all of the evidence before it. In determining whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the sport of table tennis, the Tribunal has had regard to the case of Zhang v MIMA [2007] FMCA 664 in which it was 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. It was stated that a record is an aggregation or a list, not necessarily a large aggregation or a long list. The Tribunal also had regard to the case of Gaffar v MIMA [2000] FCA 293 where the Court considered the phrase ‘exceptional record of achievement’ in an earlier category of skilled residence visa. The Court noted that in determining whether the visa 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. It is not required that the applicant be a ‘living treasure’. It was noted that the circumstances that will meet this requirement will vary across different professions and activities as some will require far greater levels of knowledge and skill by a visa applicant to rise above the ordinary and the merely competent.
The Tribunal has had regard to the submissions made and to all relevant facts and matters provided by the applicant. She had some success in Australia and more so significant success internationally up to the time of application. Internationally, most notably of her achievements, at the age of 20 she was ranked number 85 in the world in 2007 and was a bronze medal winner in the women’s doubles at the 2011 Shenzhen Universiade Games. The evidence before the Tribunal is that the Universiade Games is the World University Games or World Student Games which is the largest multi-sport event in the world apart from the Olympic Games. Further, the applicant had very significant success in South Korea, a country whose international standing in the sport of table tennis is very high. Consistent with PAM3, the applicant’s previous rating at the top of the field in her home country, in circumstances where that home country enjoys such a high place in the world in the sport of table tennis, is also consistent with an international record of exceptional and outstanding achievement.
The Tribunal is satisfied on the totality of the evidence before it, including that the applicant’s successes in championships, as set out above, internationally and nationally in South Korea, the commendation of elite table tennis players and the strong endorsement from Table Tennis Queensland and Table Tennis Australia, that the applicant has demonstrated that at the time of the visa application, the applicant had an international record of outstanding and exceptional achievement in the sport of table tennis.
The requirements of cl.858.212(2)(a) are therefore met.
Issue 2 – Was the applicant still prominent in the area?
It is submitted that the applicant is still prominent in table tennis as she was ranked number 1 in women’s table tennis in Australia in 2018. However, the requirement of cl.858.212(2)(b) is not whether the applicant is still prominent now but whether, at the time of the visa application, the applicant was still prominent. The evidence is that at that time she was ranked 251 in the world and was Queensland Senior Female Player of the Year.
‘Prominent’ is not defined in the Regulations. However, consistent with PAM3, ‘prominent’ should be accorded the ordinary dictionary meaning within context; appropriate synonyms are ‘conspicuous’ and ‘important’. Notably PAM3 also states ‘an applicant claiming distinguished talent in a particular area, but who has not been active at a high level in that area for more than 2 years, would not be regarded as retaining prominence in that area’.
Although at the time of the visa application the applicant was not at as high a level in the sport as she had been previously, the Tribunal considers that the requirement to still be ‘prominent’ is something less than the requirement of having an outstanding and exceptional record of achievement as required for cl.858.212(2)(a). Having had regard to the applicant’s achievements in the two years[1] leading up to the date of the visa application, including a team 1^st at the 2015 Vietnam Golden Racket Championships, various awards in Korea throughout 2016 and Queensland Senior Female Player of the Year in 2017, the Tribunal is satisfied that the applicant was still prominent in the area of table tennis at the date of the visa application.
[1] Consistent with PAM3
The requirements of cl.858.212(2)(b) are therefore met.
Issue 3 – Would the applicant be an asset to the Australian community?
An applicant must demonstrate that the granting of the visa will benefit the Australian community as a whole, not just the applicant and nominator. ‘Asset’ does not only refer to economic benefit, it can also refer to social or cultural benefit. The benefit must be national, not only local or regional.
The evidence of all three of the witnesses from Table Tennis Queensland and Table Tennis Australia demonstrates to the Tribunal that the applicant is eminent and highly regarded in the sport of table tennis in Australia and that she will be an asset to the Australian community in terms of not just her individual performance in the sport in the future but also as a mentor, inspiration and coach for others. The Tribunal considers Mr Houston, Mr Barrett and Mr Walsh to be credible independent witnesses.
Additionally, Mr Barrett in a letter of 25 November 2018 and Mr Houston in a letter of 16 November 2018 in evidence before the Tribunal canvass the qualities of the applicant, such as active assistance provided to others through coaching and mentoring, her outstanding work ethic and attitude that contribute to her being an asset to the Australian community.
Having considered all relevant evidence, together with the evidence of the applicant’s achievements, the Tribunal is satisfied that the applicant has an international profile and that she is a gifted and talented table tennis player who has had success at a national and international level and that, further, she freely avails herself to assist others in the sport, such that she would be an asset to the Australian community.
The requirements of cl.858.212(2)(c) are therefore met.
Issue 4 – Would the applicant have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area?
In evidence, Mr Houston, Mr Barrett and Mr Walsh all expressed the view that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia in the area of table tennis. Evidence included that the applicant has recently successfully completed first-level coaching accreditation in Australia and will be able to further these coaching qualifications. Additionally, Mr Barrett in his letter of support states that the applicant’s potential earnings in Australia in relation to coaching are significant because of the expertise she brings to the area. On the evidence, the Tribunal is satisfied that the applicant would have no difficulty in obtaining employment in the area.
The requirements of cl.858.212(2)(d) are therefore met.
Issue 5 – Had the applicant produced a completed approved form 1000?
A completed nomination (form 1000) was provided by Mr Barrett, as President, and Mr Walsh, as Executive Officer, of Table Tennis Queensland, with the visa application.
The requirements of cl.858.212(2)(e) are therefore met.
Issue 6 – If the applicant had not turned 18, or was at least 55 years old, at the time of application – would the applicant be of exceptional benefit to the Australian community?
As the applicant was 30 years of age at the date of the visa application, this requirement is not in issue.
Conclusion
As the applicant meets all of the applicable 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.
Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the second-named applicant.
DECISION
The Tribunal remits the application for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 858 visa:
·cl.858.212 of Schedule 2 to the Regulations.
Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the second-named applicant.

[2019] AATA 1897

11 February 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies