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

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).
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.
The applicant lodged an application for review with the Tribunal on the 4 January 2016.
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.
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;…

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.

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Details

AGLC: Lee (Migration) [2017] AATA 2129
Case: [2017] AATA 2129
Decision Date: 6 November 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a bodybuilder, sought to demonstrate that they met the criteria for this visa subclass. The Tribunal was tasked with determining whether the applicant possessed an internationally recognised record of exceptional and outstanding achievement in their nominated field.

The central legal issue before the Tribunal was whether the applicant's achievements in bodybuilding constituted an "internationally recognised record of exceptional and outstanding achievement" as required by clause 858.212(2)(a) of the relevant regulations. This required an assessment of whether the applicant had demonstrated excellence in their occupation that was out of the ordinary, drawing on principles established in cases such as *Gaffar v MIMIA* [2000] FCA 293. The Tribunal also considered the meaning of "record," noting that it did not necessarily imply a quantifiable or sustained history, as per *Zhang v MIMA and Anor* [2007] FMCA 664.

The Tribunal found that while the applicant was a successful amateur bodybuilder with potential for a professional career and was respected within their training circles in Australia, the evidence did not establish an internationally recognised record of exceptional and outstanding achievement at the time of the visa application. The applicant was considered to be on the cusp of an international career but had not yet achieved the required level of recognition. Consequently, the Tribunal affirmed the decision not to grant the visa, as the applicant failed to satisfy this crucial criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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 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. 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. 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. 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. 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 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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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