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

1. 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).

2. 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.

3. 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.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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 12 June 2019.

8. The evidence before the Tribunal indicates that the applicant was born in Pyeongtaek-Si South Korea on 8 January 1985. The applicant holds a passport from the Republic of Korea. The evidence indicates that the applicant first came to Australia as the holder of a Working Holiday visa in 2014.  The applicant was then granted a second working holiday visa.  The applicant as noted applied for the visa that is the subject of this review on 25 September 2017.

9. 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 3^rd 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

10. 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.

11. 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.

12. 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 2^nd place in the Men’s under 3 Dan.  The applicant also coached participants in the 16^th World Kendo Championships held in Tokyo Japan in 2015 with a female competitor coached by the applicant reaching the women’s top 16.

13. The applicant also provided a recommendation letter from the Secretary-General of the Korea Kumdo association dated 18 May 2017. The letter notes that the applicant had a successful professional career in Kendo for 13 years and would make a significant contribution to the teaching of Kumdo players in Australia as a coach based on the breadth of his experience as a competitor (Kumdo is a modern Korean martial art derived from Japanese Kendo).

    REVIEW HEARING

14. The Tribunal conducted a review hearing on 12 June 2019 and as has been noted above the applicant attended along with 2 witnesses Mr Minter and Mr McKenzie. 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 of the evidence before it and determine whether the applicant met relevant criteria pertaining to the grant of a Distinguished Talent visa.

15. The applicant provided the Tribunal with his personal details. The applicant made reference to his immigration history in Australia. The applicant confirmed that he had held two working holiday visas in Australia. The applicant advised that he had applied for a student visa and went on to study business studies at ILSC in Sydney.  The applicant then applied for the visa that is the subject of this review. The applicant stated that he studied three courses and completed all courses of study.

16. The Tribunal asked the applicant about his Kendo history. The applicant stated that he began practising Kendo when he was aged 9. The Tribunal asked the applicant whether Kendo was a prominent sport in South Korea and he advised that it was. The applicant advised that Kendo was most popular in both Japan and South Korea but had also become popular in the number of Western European and Eastern European countries. The Tribunal asked the applicant when he became recognised for his particular skills in Kendo. The applicant stated that when he was transitioning from school to university he also began focusing on and specialising in Kendo.

17. The Tribunal asked the applicant what current ranking he held in the sport of Kendo in Australia and he advised that he was currently number one in Australia.

18. The Tribunal asked the applicant about recent international competitions. The applicant stated that in 2018 he competed in two competitions in Europe and won both of them.  He advised that these competitions were held in Geneva in Switzerland and Belgrade in Serbia. The applicant provided evidence of trophies and medals that he had received in these international tournaments.

19. The Tribunal asked the applicant about the World Kendo Championship. The applicant advised that this championship was held every 3 years and the next championship would be held in Paris France in 2021. The most recent world championship had been held in Incheon in South Korea in 2018. The Tribunal asked the applicant how a person was chosen to compete in the world Championships. The applicant stated there were a series of competitions prior to selection for world Championships and each country selects 7 males and 7 females to represent that country. The applicant stated that with his wins in the recent European international competitions that he would have a very high chance of being selected for the world Championships in 2021. The applicant stated that the Belgrade competition was the biggest international competition that he had won.

20. The Tribunal asked the applicant about his coaching in Kendo. The applicant stated that he coached at the University of Western Sydney in their Kendo club. The Tribunal asked the applicant what were the highest results that his students had achieved. The applicant stated that he had a student that ranked second place in an international competition in Hong Kong namely the International Kendo Championships, a key international event.

21. The Tribunal took evidence from the applicant’s first witness Mr McKenzie.  The witness advised that he had been a president and former board member of the New South Wales Kendo Association, and had known the applicant for a period of 4 years. The witness described the applicant as being an unrivalled practitioner and coach. The witness stated that the Australian women’s team under the tutelage of the applicant placed second at the world Championships in Incheon in South Korea which were held in September through to October 2018. The witness stated that there were 7 competitors in the team and that 5 of the Australian competitors came from New South Wales. The witness stated that the applicant was involved in mentoring a number of members of this team. The witness stated that the applicant gave advice to the Australian captain of the men’s team which consisted of 7 competitors, 5 of whom were from New South Wales.

22. The witness advised the Tribunal that the pre-eminent countries in Kendo were Japan and South Korea he further advised that France and Italy were quite strong in the sport as was Brazil. The witness advised that the applicant had high-level skills as a competitor and coach and in Australia had won all but one state competition. The applicant advised that the sport did not differentiate based on age and weight. The applicant stated that the current Australian champion has expressed a strong interest in the applicant assuming the role of Head Coach. The witness stated that the Kendo Federation at both state and federal level would welcome the applicant as a coach because of his superior technical skills, his training skills, and his competitive skills. The witness stated that the applicant’s retention as a coach would provide a significant boost to Australian Kendo and contribute to its ongoing growth.

23. The Tribunal took evidence from the applicant’s second witness Mr Minter.  The witness advised that he had previously been involved with the applicant as a teacher and mentor and that he had been a Kendo practitioner for in excess of 40 years and sat on the executive board of Kendo Australia. The witness stated that the sport had grown exponentially over that time. The witness described the applicant as somebody having exceptional ability and skills in the sport of Kendo. The witness stated that he believed that the applicant could make a significant contribution to the coaching of Kendo in Australia and that he could easily rise to the ranks of international judge. He described the applicant as being honest and extremely hard-working. The witness made reference to the applicant’s recent first places in international competitions in Belgrade and Switzerland. The witness stated that the Swiss Kendo team had a very solid reputation in the sport. The witness stated that there was an ongoing push to get Kendo into schools in Australia. The witness stated that he believes that the applicant would be a significant asset to the sport of Kendo in Australia and its ongoing development and that his skills would lead to further success of the sport at an international level of competition.

24. The applicant advised the Tribunal that he had recently received his 6^th Dan black-belt in Japan and he provided a certificate confirming this fact. The applicant stated that 1100 people had applied for this belt but only 24% received it. The applicant stated that only 10 people in Australia held the certificate and that he was the youngest of all of them. The applicant stated that he believed that he was at his peak skill level in terms of being a competitor and coach. The applicant stated that he would love to work hard for Australian Kendo into the future.

25. 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.

    DECISION

    ASSESSMENT AGAINST THE CRITERIA

26. 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

27. 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. 

28. 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

29. 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.

30. 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).

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 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).

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 Kendo Renmei Inc. 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 competing in and coaching Kendo for many years at an international level and has attained international success with his students and his associates in Kendo attest to his high level of skill.  The Tribunal accepts that the applicant would have no difficulty in obtaining employment or indeed becoming established independently in Australia in the area of Kendo coaching and evidence corroborative of this has been provided.

34. The applicant was nominated by Mr Richard Ward who is the President of the Australian Kendo Renmei Inc.  The Tribunal is satisfied that the applicant produced an approved form 1000. On this basis the applicant meets cl.858.212(e).

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

    CONCLUSIONS

36. 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

37. 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