Lee (Migration)

[2017] AATA 2129

Lee (Migration) [2017] AATA 2129 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kwang Seok Lee

CASE NUMBER:  1600059

DIBP REFERENCE(S):  BCC2015/2346036

MEMBER:John Cipolla

DATE:6 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) class BX visa.

Statement made on 06 November 2017 at 12:15pm

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Bodybuilder – No record of exceptional and outstanding achievement – No international recognition

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 December 2015 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 14 August 2015. The delegate refused to grant the visa on the basis that the delegate could not be satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport of bodybuilding.  The delegate noted that the applicant was a competitive bodybuilder who had enjoyed success in competitions in South Korea and more recently in Australia and that his most significant achievement to date was a first place in the novice class at the 2015 IFBB Austral Asian Championships. The delegate accepted that the applicant was an accomplished bodybuilder who had enjoyed some success at a competitive level, however, the delegate noted that the events that the applicant had competed in and the titles that he had achieved was not indicative of an athlete considered to be at the top of their respective field. The delegate noted that the applicant’s achievements were more reflective of an emerging athlete who may establish himself internationally at a later point in time.

3. The applicant lodged an application for review with the Tribunal on the 4 January 2016.

4. The Tribunal conducted a review hearing on 12 October 2017. The applicant was represented in relation to the review by his Registered Migration Agent. The representative attended the Tribunal hearing.

5. Prior to the conduct of hearing the Tribunal received a number of documents from the applicant. These documents included as follows: the results of the IFBB Arnold Classic Australia in March 2015 indicating that the applicant placed 9th in the novice division; photographs of the applicant competing at the Sydney Grand Classic; a statement from Brian Emerson dated 6 August 2015 noting that the applicant had strong determination and drive to succeed as a bodybuilder and had the potential to represent Australia at an international level and to be extremely competitive; evidence of the applicant obtaining 2^nd place in the Sydney Grant Classic in 2014; a statement pertaining to the applicant’s achievements in bodybuilding indicating that the applicant had achieved placements at bodybuilding competitions in South Korea; that he placed 9^th out of 27 competitors at the Arnold Classic in March 2015; that he achieved 2^nd place in the Mr Australasia heavyweight division in 2016; had placed 3^rd in the heavyweight division of the Arnold Classic in 2017; and was invited to the China M VP King bodybuilding contest in 2017.

6. The applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rawdon Dubois, who is the applicant's coach and mentor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. At the outset of the review hearing the Tribunal explained in detail the merits review process and the respective issues in review. The applicant advised that he was for the hearing to be conducted in English but the Tribunal insisted that its preliminary comments should be interpreted by the interpreter for the applicant’s benefit, the Tribunal advised the applicant that if he needed to defer to the interpreter at any time during the hearing that he should do so.

7. The Tribunal asked the applicant about his immigration history. The applicant advised that he first travelled to Australia from South Korea as the holder of the Subclass 417 Working Holiday visa in March 2008 a visa that was valid until March 2009. The applicant stated that he sought and was granted a further Subclass 417 Working Holiday visa which was valid from March 2009 until March 2010. The applicant stated that whilst he was the holder of this visa he worked in accordance with visa conditions, work largely carried out at Gold’s Gym in Surry Hills and at Supplement Warehouse in Pitt Street Sydney, both businesses which had now closed down.

8. The applicant stated that at the end of his Subclass 417 visas he decided that he wanted to study in Australia in the fitness industry so he returned to South Korea and made an application for a student visa and was granted a Subclass 572 visa and returned to Australia in February 2010. The applicant advised that he completed a Certificate III and Certificate IV in fitness from Randwick TAFE and that he completed these courses in one year. The applicant stated and he then enrolled in a Diploma of Fitness at the same institution but did not complete the course. The applicant stated that during the time that he was studying he decided that he wanted to become a competitive professional in bodybuilding and that he transferred from the Diploma of Fitness to a Diploma of Business Management which he completed in early 2015. The applicant advised that during the time that he was undertaking study in Australia that he worked as a personal trainer at a number of gyms in Sydney including Boot Camp Australia in Haberfield and Rhodes Fitness where he was currently working as a personal trainer.

9. The Tribunal asked the applicant to outline his history in bodybuilding. The applicant stated that he started lifting weights at the age of 17 and that 2000 he competed in bodybuilding competitions in South Korea, approximately 10 competitions where he was placed around 6^th or 7^th. The applicant stated that he competed in a range of competitions in South Korea and had also competed in bodybuilding competitions in Hong Kong and Australia. The applicant advised that he had competed in the Australian National Bodybuilding Classic in Newcastle where he had achieved 3^rd place in the heavyweight division. He had also competed in the National Australian Bodybuilders Association competition in 2014 held in Bankstown where he placed 2^nd in his height category. The applicant stated that he competed in the International Federation of Bodybuilders competition in 2015 where he placed 2^nd. He advised that he competed in the Mr Australasia competition which was held in Penrith and that he won the novice division out of 23 competitors.

10. The Tribunal asked the applicant about his fellow competitors in these competitions and the applicant advised that they were mostly Australians but also included New Zealanders and Indonesians. The applicant stated that when he competed in the International Federation of Bodybuilding Arnold Classic in Melbourne in 2015 he placed 9^th out of 22 competitors in the novice division and he advised that competitors came from New Zealand, Asia, China, Europe and the United States.

11. The applicant advised that he competed in the Mr Australasia competition in 2016 held at the Cronulla Sharks Leagues club where he placed 2^nd in the heavyweight division and lost the competition by one point. The applicant advised there were mainly Australian competitors and the judges after the competition advised the applicant that with a further 3 weeks of training he would have placed first in the competition. The applicant stated that in 2016 he competed in the Arnold Asia bodybuilding competition in Hong Kong but was disqualified because of a technical issue as his spray tan was running. The applicant competed in the International Federation of Bodybuilding national competition in October 2016 at the Cronulla Sharks Leagues Club where he placed 3^rd in the heavyweight division. The applicant competed in the same competition in Melbourne in 2017 where he made the top 10 in the heavyweight division and the applicant described 2017 as his most competitive year in terms of transitioning to professional bodybuilding.

12. The Tribunal asked the applicant for more comprehensive evidence about his work history in Australia. The applicant advised that after completing studies in fitness that he had worked as a personal trainer and had also worked as a gym manager and worked in supplement shops. The Tribunal asked the applicant whether he had obtained any sponsorships. The applicant stated that he had a current sponsorship with Gassed Nutrition in Campbelltown where he received $300 of food per week if he promoted the business on social media and he also obtained a commission if people ordered the food from this company. The applicant advised the Tribunal that he had no problems in maintaining steady work as a personal trainer in Australia.

13. The applicant advised the Tribunal that prior to the hearing being scheduled he had hoped to travel to China to compete in an international competition in that country but had cancelled this as a result of the hearing. The Tribunal asked the applicant whether he had featured in any magazines and he advised that he had featured in Muscle and Fitness magazine in 2015 when he won the novice division of Mr Australasia. The applicant stated that he hoped to compete in a number of competitions that were forthcoming that could lead to the transition to professional bodybuilding.

14. The Tribunal took evidence from the applicant’s witness Mr Rawdon Dubois.  The witness advised the Tribunal that he was a bodybuilding coach and helped competitors prepare for competitions. The witness advised that he had observed the applicant competing in a number of bodybuilding competitions where he had competed against Australians, Indonesians and New Zealanders. He had also witnessed the applicant compete in the Arnold classic in Melbourne against a range of international competitors. The witness advised that the applicant achieved a top 10 finish in this competition. He advised that the applicant had competed in the International Federation of Bodybuilding Arnold classic in 2016 but was disqualified on a technicality. The witness advised that he believed that the applicant was very strongly dedicated to the sport of bodybuilding and believed that the applicant could be very competitive. The witness advised that there are a number of competitions that were forthcoming to be held at the Cronulla Sharks Leagues club and that if the applicant was able to win his respective category in these competitions he may gain a spot in the Mr Olympia competition which is the penultimate competition in bodybuilding. The witness advised that the applicant maintained steady employment as a personal trainer and that the applicant had also been able to obtain sponsorships pertaining to nutrition. The witness stated that the applicant was currently training 5 to 6 hours a day which showed enormous commitment to the sport of bodybuilding.

15. The Tribunal advised the applicant that it would await the results of competitions that the applicant was competing in late October 2017 before it proceeded to decision. The hearing concluded.

16. On 1 November 2017 the Tribunal received advice that the applicant was not able to compete in the anticipated bodybuilding competition in late October 2017 at Cronulla due to ill health.  The applicant’s advisor stated that the applicant was preparing for the Arnold Classic Competition to be held in Melbourne from 18 to 22 March 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets the relevant criteria for the grant of a Distinguished Talent visa.

    ASSESSMENT AGAINST THE CRITERIA

19. There are various 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 as a bodybuilder.

    Internationally Recognised Record

20. 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: see Gaffar v MIMIA[2000]FCA293 where the court considered the phrase “exceptional record of achievement” in an earlier category of Skilled Residence Visa.

21. 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, not necessarily a large aggregation or a long list: see Zhang v MIMA and Anor[2007]FMCA664.

22. It is apparent from the material provided to the Tribunal at review and provided with the visa application that the applicant is currently an amateur bodybuilder who has had some success at the amateur level and who hopes to break into the professional bodybuilding ranks.  The applicant has been able to maintain work in Australia as a personal trainer and no doubt he has been able to attract clients interested in bodybuilding because of his training expertise.  The evidence indicates that the applicant may well be on the cusp of a successful international bodybuilding career but has not yet been able to establish to the Tribunals satisfaction that he had an internationally recognised record of exceptional and outstanding achievement as a bodybuilder at time of visa application or that he currently has an internationally recognised record of exceptional and outstanding achievement as a bodybuilder.

23. In summary, based on the evidence before it the Tribunal cannot be satisfied that at the time of the visa application, the applicant had an internationally recognised record of exceptional and outstanding achievement as a bodybuilder.  Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.

24. The Tribunal acknowledges that the applicant is well respected by many people who have supported his application and that his talents have been recognised by those he has trained and worked with in Australia. However, the Tribunal is unable to find on the evidence before it that the applicant satisfies the regulatory requirements for the grant of a Distinguished Talent Visa.

    CONCLUSION

25. As the Tribunal has found that the applicant does not satisfy the requirements of cl.858.212, the decision under review must be affirmed.

    DECISION

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

    John Cipolla
    Senior Member