KIM (Migration) - [2019] AATA 3398

KIM (Migration) [2019] AATA 3398 (4 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yoonsu Kim
CASE NUMBER:  1818833
DIBP REFERENCE(S):  BCC2017/3520501 BCC2017/3608713
MEMBER:John Cipolla
DATE:4 July 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 04 July 2019 at 11:34am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – internationally recognised record – demonstrated exceptional and outstanding achievement – 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 20 June 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 25 September 2017. The Departmental delegate noted that the applicant was a 33-year-old Kendo competitor, coach and judge/referee who held a 5^th Dan blackbelt in Kendo, and had achieved first and second placings in a number of Australian Kendo Championships at both state and national level. The delegate however, refused to grant the visa on the basis that the delegate was not satisfied that the applicant was able to demonstrate that he had an internationally recognised record of exceptional and outstanding achievement in the sport of Kendo as a competitor, coach or judge/referee.
The applicant appeared before the Tribunal on 12 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Colin Minter a Kendo practitioner and teacher and Mr Steven McKenzie a past President of the Board of the Australian Kendo Renmei. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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 25 September 2017 the applicant, had an internationally recognised record of exceptional and outstanding achievement in the sport of Kendo. 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…

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 KIM (Migration)

Details

AGLC: KIM (Migration) [2019] AATA 3398
Case: [2019] AATA 3398
Decision Date: 4 July 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Migration Review Tribunal. The applicant, KIM, sought a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The core of the dispute revolved around whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in the field of Kendo, both as a competitor and a coach, as required by the relevant visa criteria.

The legal issues before the court were whether the applicant had demonstrated an internationally recognised record of exceptional and outstanding achievement in Kendo, and whether Kendo could be classified as a sport and being a competitor and coach could be classified as a profession for the purposes of the visa subclass. The court was required to consider the meaning of "record of exceptional and outstanding achievement" and whether the evidence presented by the applicant met this threshold.

The court considered the evidence provided by the applicant, including letters from prominent figures in Australian Kendo, details of competition wins and coaching successes between 2003 and 2017, and further international achievements in 2018. The court applied the principles from *Gaffar v MIMIA* [2000] FCA 293, which established that "exceptional record of achievement" requires demonstrated excellence that is out of the ordinary, and *Zhang v MIMA and Anor* [2007] FMCA 664, which clarified that a "record" does not necessarily need to be quantifiable or sustained over a long period. The Tribunal found that Kendo could be classified as a sport and the applicant's roles as a competitor and coach could be classified as a profession. Based on the cumulative evidence, the Tribunal was satisfied that the applicant had an internationally recognised record of outstanding and exceptional achievement in Kendo, demonstrating a substantial contribution to the sport and continued prominence.

The Tribunal found that the applicant met the requirements of clause 858.212(2)(a) of the Migration Regulations. The decision under review was remitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The application was accompanied by a Form 1000 completed by Mr Richard Ward who is the President of the Australian Kendo Renmei Inc. This form is dated 29 August 2017. Mr Ward also provided a letter dated 12 September 2017 attesting to his current position with the Australian Kendo Renmei and making reference to the applicant’s achievements in Kendo. This included major competition wins between 2003 (when the applicant was at university) and 2017 when the applicant achieved second place in the Kendo International Cup. The letter also makes reference to the applicant’s achievements as a coach between 2015 and 2017 when the applicant’s students achieved 5 first places,1 second place and 1 third place in the Australian Kendo championship, and a second place in the Men’s 3rd Dan Division Hong Kong Asian Kendo Championship 2017. The evidence before the Tribunal indicates that Mr Ward is a respected practitioner and administrator of Kendo in Australia and has had an eminent role in the sport of Kendo at both a national and international level.EVIDENCE PROVIDED TO THE DEPARTMENT The Department received a letter from Mr Michael Xu dated 30 July 2017 which makes reference to the achievements of the applicant. The letter notes that the applicant assisted in coaching the New South Wales team for the Australian Kendo competition in 2016 and he finished first place in the Dan Division of the NSW Korean Kumdo Cup and achieved first in the Dan Division of the NSW state team for Kendo. The letter also noted the applicant coached a Member of the NSW State Kendo team who achieved first place in the state competition. It also noted the applicant held the position of assistant coach for the NSW state teams who were trained to compete in the Australian Kendo Championships. The applicant provided copies of significant trophy’s he had received in Kendo namely runner up in the NSW Kendo State Championships in 2015, Dan Men’s NSW Champion of the NSW Kendo Association for 2016, first place in the Korean Kumdo Championships in 2016 and first place in the 2017 Korean Kumdo Championship on 26 August 2017. The applicant also provided additional evidence of his success in a range of Australian and International competitions. The applicant also provided a document to the Department outlining his achievements in International Kendo competition, this document outlines significant achievements by the applicant as both a competitor and coach. This document indicates that the applicant had success in Kendo competitions from high school in 2000 through to 2011 at a national and international level. The document also indicates the applicant’s international competition achievements as a coach. The applicant had success as a coach in the Hong Kong Asian Open Kendo Championship in 2017 coaching a participant to 2nd place in the Men’s under 3 Dan. The applicant also coached participants in the 16th World Kendo Championships held in Tokyo Japan in 2015 with a female competitor coached by the applicant reaching the women’s top 16.

Decision

Reasons for decision

The Tribunal received additional evidence from the applicant’s representative prior to the review hearing. These additional documents have been duly considered by the Tribunal.DECISIONASSESSMENT AGAINST THE CRITERIA 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 competitor and coach of Kendo.Internationally Recognised Record 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. 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 The applicant in this case claims that he has an internationally recognised record of exceptional and outstanding achievement in a sport namely Kendo and in a profession, as a Kendo competitor and coach. In support of the applicant's claims, the applicant provided a range of material to the Department which has been duly considered along with supplementary evidence that has been provided at review. The evidence that has been provided establishes that the applicant is in the highest echelon of Kendo as both a competitor and as a coach. Indeed the evidence before the Tribunal when cumulatively considered indicates that the applicant at time of application had an internationally recognised record of outstanding and exceptional as a competitor and coach in Kendo and that he continues to do so. This is demonstrated by the fact that the applicant in 2018 won 2 significant international tournaments in Switzerland and Serbia, which are amongst the key international Kendo competitions held worldwide. The Tribunal finds that Kendo may be classified as a sport, and the being a competitor and coach may be classified as a profession for the purpose of cl.858.212(a). 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 Kendo as a competitor and a coach indicates that the applicant has made a substantial contribution to his sport and remains prominent as both a competitor and coach. The Tribunal is accordingly satisfied that the applicant meets the requirements of cl.858.212(2)(a).

Ratio Decidendi

Legal Principle Established

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