Leonard (Migration)

[2019] AATA 3004

Leonard (Migration) [2019] AATA 3004 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shane Martin Leonard

CASE NUMBER:  1808762

DIBP REFERENCE(S):  BCC2016/3052459 BCC20163052459

MEMBER:John Cipolla

DATE:29 May 2019

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 29 May 2019 at 12:07pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – sport – lawn bowls – Tribunal cannot be satisfied applicant had internationally recognised record of exceptional and outstanding achievement at time of visa application – represented Ireland and Australia at national level – lack of evidence nominator carried national reputation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth),Schedule 2, cl 858.212

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 14 March 2018 to refuse to grant the visa applicant (hereinafter referred to as the applicant) a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 September 2016.

3. The Subclass 858 visa is a permanent visa for individuals who have a record of exceptional and outstanding achievement, internationally recognised, 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 Regulations.

4. The applicant made an application for a Subclass 858 Distinguished Talent visa on 19 September 2016. The visa application was made by the applicant on the basis of his achievements in the field of competitive sport as a lawn bowls player. The applicant was nominated by James Thomas Curry (‘the nominator’).

5. A delegate of the Department of Immigration refused the visa application on 14 March 2018. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(2)(e) of the Migration Regulations which requires that the applicant produce a completed Form 1000 supporting the applicant’s history of achievement, and that this form be completed by an individual or organisation with a ‘national reputation’ in the relevant area.

6. Recourse to the delegate’s decision record indicates that the delegate could not be satisfied that the nominator carried a ‘national reputation’ and was qualified to attest to the applicant’s record of achievement in the field of lawn bowls. In the Form 1000 the nominator had noted the applicant’s record of achievement as an international player for Ireland and explained his own national reputation in the same field as derived from ownership of a lawn bowls company with international exposure ‘Planet Bowls Pty Ltd’. The applicant was invited on 04 April 2017 and 10 July 2017 to provide evidence which would satisfy cl.858.212(2)(e); namely, the CV of the nominator, reference letters from an Australian peak body, reference letters from specialists or any other evidence which would support the status of the nominator. The applicant provided no further information to address cl.858.212(2)(e).

7. The applicant lodged a review application with the Administrative Appeals Tribunal on 29 March 2018. The applicant provided with the application a completed Form 1000 filled out by Mr Stephen Glasson OAM a new nominator which detailed his achievements in the sport, the achievements of the applicant and the prospective contributions of the applicant to bowls in Australia.

8. The applicant was invited to appear before the Tribunal on 9 May 2019 to give evidence and present arguments. The applicant’s representative advised the Tribunal on 7 May 2019 that neither the applicant nor the representative would be attending the scheduled hearing and the Tribunal is thus able to proceed to decision on the basis of the evidence currently before it.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the criteria relevant to the grant of a Subclass 858 Distinguished Talent visa.

12. The applicant lodged the application that is the subject of this review on 19 September 2016. The Tribunal has had regard to the application for the visa. The evidence before the Tribunal indicates that the applicant applied for the visa on the basis of his distinguished talent in the sport of lawn bowls. The application form indicates that the applicant had represented Ireland for 9 years in the junior category and one year at senior international level. The applicant stated that he reached the status of Irish junior and senior international lawn bowls player. The applicant stated that he was awarded the under-25 Irish singles championship and was also awarded the Bowling League of Ireland player of the year award. The applicant stated that he had a wealth of experience in international lawn bowls and that he hoped to develop into a coach with bowling clubs across Queensland.

13. At folio 8 of the Departmental file the applicant provided a document pertaining to his bowling history. That document indicated that the applicant had represented Ireland in the junior inter-association bowls between 2004 and 2015 and the senior inter-association bowls between 2009 and 2015. Further to this that the applicant had captained the junior team in 2015 and had won a number of titles in Ireland including the under 18 Bank of Ireland Cup, singles winner in 2006 and 2007; the under 25 Railway Union Cup singles winner in 2011, 2013 and 2014 and the Marper Cup Senior Singles winner in 2014, the Boyd Cup Pairs winner in 2011, the Baird Cup Triples winner in 2014, the Sixsmith Cup Fours winner in 2013 and 2014 and the Bowler of the Year in Ireland in 2013 and 2014. This document was signed by Richard Kelly from the Bowling League of Ireland.

14. The grant of a Distinguished Talent visa requires that at the time of application an applicant for the visa establishes that they have an internationally recognised record of exceptional and outstanding achievement in a sport. In addition to this an applicant must provide detailed information on the Form 1000 of the nominator who is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen or from an Australian organisation who has a national reputation and is qualified to attest to the applicant’s record of achievement in the field of sports, in this case lawn bowls.

15. As has been noted above the Form 1000 provided with the application for the visa was completed by Mr Jason Thomas Curry however there was no evidence submitted which indicated that Mr Curry had a national reputation relevant to the field of lawn bowls.

16. Recourse of the Departmental file indicates that on 4 April 2017 the Department sent a letter to the applicant requesting further information pertaining to his nominator. The Department sought a current CV for the nominator, reference letters from the Australian lawn bowls peak body supporting the status of the nominator, reference letters from highly regarded specialists in the sport of lawn bowls attesting to the regard and repute of the nominator and any other relevant documentation supporting the status of the nominator. The applicant failed to respond to this request and the Department concluded that there was no evidence that Mr Jason Curry had a national reputation and was qualified to attest to the applicant’s record of achievement in the field of sports, specifically lawn bowls.

17. At review the applicant has provided a further Form 1000 which has been completed by Stephen John Glasson on 16 October 2018. Mr Glasson describes how he has acquired a national reputation in the field of lawn bowls. Mr Glasson states that he has been involved in bowls for approximately 40 years and has represented Australia in excess of over 400 times, that he is a former Australian number one, and a former world number one ranked player and is currently the national coach and has been awarded an Order of Australia medal for his services to the sport.

18. Annexed to the Form 1000 was a letter from Mr Glasson dated 25 September 2018. The letter notes that Mr Glasson had known the applicant for 10 years and had no hesitation in supporting his application. Mr Glasson in his letter notes the following:

    “Mr Leonard has successfully represented Irish bowls on all levels in junior and senior ranks. Mr Leonard was a contributing member of the Irish junior program from 2009 through to 2015. In his last year Mr Leonard earned the much rewarding position as national captain which underlines his leadership qualities and experience at this level. From 2013 to 2015, Mr Leonard represented the senior Irish team (It should be noted Ireland is a heavyweight nation in the world of lawn bowls).  In addition to these representative honours, Mr Leonard also won multiple Irish National titles; 2014 being the highlight with no less than 4 national titles including under 25 and open singles as well is the triples and fours championships.

    In March 2015, Mr Leonard was selected to represent Ireland in the world Junior under 25 championships of Broadbeach Bowls Club in south-east Queensland. I had the delight in further witnessing Mr Leonard showcase his talents on and off the playing arena only to narrowly miss out on the final knockout stage by just one match in the singles and mixed pairs. The behaviour and ambassadorship exhibited by Mr Leonard was a credit to himself in the sport. Mr Leonard has also achieved unprecedented success in the form of winning all Irish national titles by the age of 25. My Irish equivalent Mr Neil Booth has glowing remarks for his charge and holds Mr Leonard in the highest esteem.

    …Mr Leonard has now well and truly established himself in New South Wales and is a proud representative of the Warilla Bowls which is one of the most successful, progressive, and dominant clubs within Australia. Not only does Warilla epitomise the very essence of elite play, this forward thinking club is also committed to the future of our great sport, running many programs, elite and development and has a well-known and respected junior bowls program of which Mr Leonard is heavily involved.

    In conclusion, I am supremely confident Mr Leonard will bring an outstanding mix of youth, experience, professionalism and leadership to lawn bowls in Australia. Mr Leonard is a natural leader on and off the playing fields. With his experiences through the ranks and playing at the highest level, Mr Leonard will be certain to contribute to bowls in Australia and to community-based initiatives in and around the sport.”

19. The evidence before the Tribunal indicates that the applicant has had success as a lawn bowler in Ireland and has had some success in Australia.  The following is indicative of the applicant’s achievements in Ireland and Australia.

    Represented Ireland at:

    Irish senior international team from 2012

    Irish Junior International Team from 2007 (Cpt 2015)

    Irish U25 singles champ 2014, R/U 2011

    BIBC Championships 2015

    Junior Inter Association 2004-15

    Senior Inter Association 2009-15

    Junior International 2007-2015 (27 caps)

    Senior International 2012-2015 (15 caps)

    Honours in Ireland:

    U18s Bank of Ireland Cups Singles Winner 2006/7

    U25s Railway Union Cup Single s Winner 2011, 2013/4

    Marper Cup (Senior) Singles Winner 2014

    Boyd Cup (Pairs) Winner 2011

    Baird Cup (Triples) Winner 2014

    Sixsmith Cup (Fours) Winner 2013/4

    Bowler of the Year 2013/4`

    Achievements in Australia:

    2016 Queensland State Triples Championship

    Queensland State No.1 Grade Pennant Championship

    NSW Zone 14 Pennant Champion 2017/2018

    NSW 5 a side runner up 2018

    NSW zone pairs+ Triples Runner Up 2018

    Semi Finalist Australian Indoor Singles Championship

    NSW Zone 16 Representative 2018

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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

21. 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 lawn bowler.

    Internationally Recognised Record

22. 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.

23. 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.

24. It is apparent from the material provided to the Department (no additional evidence has been provided at review) that the applicant had success as a lawn bowler at a national level in Ireland as both a junior and a senior player between 2006 and 2015 and that he represented Ireland for 9 years as a junior player and for 1 year as a senior player.  The evidence indicates that the applicant has also experienced success as a lawn bowler at a national level in Australia between 2015 and 2018 and he is currently ranked 43^rd in the National Australian men’s ranking.

25. 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 lawn bowler.  The evidence indicates that at the time of application in September 2016 the applicant had experienced success as a lawn bowler in Ireland during his time as a player in that country between 2006 and 2015.  The applicant’s bowling history in Australia and his ranking at a national level in the sport is not indicative of him having an internationally recognised record of exceptional and outstanding achievement in the sport of lawn bowls at time of visa application in 2016. Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.

26. 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 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

27. 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

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

    John Cipolla
    Senior Member