Lim (Migration)

[2018] AATA 1764

Lim (Migration) [2018] AATA 1764 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dongyeol Lim
Mrs Sunhee Baek
Mr Chiwoo Lim
Miss Hayeon Lim
Mr Gangmin Lim

CASE NUMBER:  1607139

DIBP REFERENCE(S):  BCC2016/1002562

MEMBER:Sheridan Lee

DATE:3 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) class BX visas.

Statement made on 03 May 2018 at 5:02pm

CATCHWORDS
Migration - Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Whether the applicant has an internationally recognised record of exceptional and outstanding achievement – Kendo practitioner – Significant domestic achievements – Lack of international achievements at time of visa application – Decision affirmed

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

CASES
Zhang v MIMA [2007] FMCA 664
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 3 May 2016 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).

2. The primary applicant, Dongyeol Lim, and members of his family unit, Sunhee Baek, Chiwoo Lim, Hayeon Lim and Gangmin Lim applied for the visas on 9 March 2016. The delegate refused to grant the visas on the basis that the primary applicant (the applicant) did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations.

3. The delegate did not accept that the applicant had an internationally recognised record of exceptional and outstanding talent in the sport of kendo. In particular, the delegate noted that ‘the evidence is not indicative of an athlete, instructor or referee who is considered eminent in the top echelons of the field’.

4. The delegate refused to grant a visa to the second, third, fourth and fifth named applicants on the basis that they did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 858 visa.

5. The applicant applied to the Tribunal on 19 September 2016 for a review of the delegate’s decision and a copy of the primary decision record was included with the application for review. The Tribunal has before it the departmental file relating to the application and material provided to the Tribunal by the applicant.

6. The applicant appeared before the Tribunal on 24 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Brian Brestovac, Chairman of the Kendo Board for the Australian Kendo Renmei. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and therefore clause 858.212. This clause relevantly provides:

   858.212

   (1) The applicant meets the requirements of subclause (2) or (4).

   (2) The applicant:

   (a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:

   a profession;

   a sport;

   the arts;

   academia and research; and

   (b) is still prominent in the area; and

   (c) would be an asset to the Australian community; and

   (d) would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and

   (e) produces a completed approved form 1000; and

   Note An approved form 1000 requires the applicant's record of achievement in an area (as mentioned in paragraph (a)) to be attested to by:

   (a) an Australian citizen; or

   (b) an Australian permanent resident; or

   (c) an eligible New Zealand citizen; or

   (d) an Australian organisation;

   who has a national reputation in relation to the area.

   (f) if the applicant has not turned 18, or is at least 55 years old, at the time of application — would be of exceptional benefit to the Australian community.

   (4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:

   (a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

   (b) the Director-General of Security;

   the applicant has provided specialised assistance to the Australian Government in matters of security.

9. The applicant has not asserted that he provided specialised assistance to the Australian Government in matters of security at the time of application on 9 March 2016. Accordingly, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.

10. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically kendo.

    Internationally recognised record exceptional and outstanding achievement

11. The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 858.212(2)(a) is not defined in the Regulations.

12. However, the Tribunal notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration.

13. In particular, the Courts have held that 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. As a result, a 'record' is an aggregation or a list, not necessarily a large aggregation or a long list.[1]

    [1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].

14. In addition, the Courts have held that in determining whether the applicant has a 'record of exceptional and outstanding achievement', the criterion requires demonstrated excellence in the relevant occupation which is out of the ordinary. Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs, French J observed that the concept of an 'exceptional record of achievement' did not require an applicant to be a 'national living treasure'.[2]

    [2] Gaffar v MIMA [2000] FCA 293 at [20].

15. As a result, the Tribunal acknowledges that the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

16. The Tribunal is aware that in assessing whether the applicant meets the requirements of paragraph 858.212(2)(a), the concept of onus of proof is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision maker is also not required to make the applicant's case for it, nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[3]

    [3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

17. On 12 April 2018, the applicant supplied a number of documents to the Tribunal. The documents included:

    ·submissions in support of the application from the applicant’s legal representative, Young Seong Jang from Apostles Legal

    ·a list of his international achievements as a Kendo Player

    ·a copy of the applicant’s certificate of achievement for the level of sixth dan

    ·a letter of support dated 9 April 2018 from Mr Richard Ward, President of the Australian Kendo Renmei

    ·a list of the applicant’s contributions to the sport of kendo as a coach and referee

    ·a letter of support (not dated) from Mr Arpad Maksay, Australian Kendo Team Coach

    ·a letter of support dated 6 August 2015 from Dr Brian Brestovac, chairman on the Kendo Board for the Australian Kendo Renmei

    ·a letter of support (not dated) from Kate Sylvester, National Coach for the Australian Kendo Team, and

    ·a letter of support dated 18 May 2016 from Susan Bonar, Senior Instructor at the Goshinkai Kendo Club.

18. At the hearing, the applicant described the sport of kendo as a traditional martial art of Japan. Kendo is not represented in the Olympics, but there is a World Kendo Championship held every three years. The governing body for kendo is the International Kendo Federation, which has approximately 54 member countries, including Australia.

19. In 2015, the applicant achieved the level of sixth dan in the sport of kendo at a dan exam ceremony in Japan. When asked to describe the grading system at the hearing, the applicant advised that there are currently 8 levels, known as dan, within the sport of kendo. The applicant estimates that across the world, there would only be about 150 ‘kendo masters’ that hold the eighth dan.

20. According to the rules of kendo, in order to achieve the highest dan grade attainable, you must be 46 years or older and have at least 10 years of training after receiving the seventh dan. Similarly, in order to achieve seventh dan, you must have at least six years training after receiving the sixth dan. The Tribunal accepts that in the future it may be possible for the applicant to achieve the highest ranking if he continues to train in the sport. However, an assessment must be undertaken as at the time of application for cl.858.212.

21. At the hearing, the applicant outlined that amongst his many achievements as a competitive athlete in kendo, his most prestigious are his achievements in the All Korean University Kendo Team Championships, in which he attained 2^nd place in the team event in 2004 and 1^st place in the individual event in 2005. In his letter of support, Mr Richard Ward submitted that the applicant’s achievements in Korea are notable because Korea is a world leader in kendo, along with Japan. This was also emphasised at the hearing by Dr Brestovac, who noted that as Korea is a world leader, competitions in that nation can attract international competitors.

22. The Tribunal accepts that the All Korean University Kendo Team Championships are a prestigious event in the sport of kendo for athletes at the University level. Nevertheless, among the list of achievements provided by the applicant, the Tribunal notes that the applicant has not competed in the Australian or Korean national kendo championships or any multi-nation competitions, such as the World Kendo Championship.

23. In addition to competing as an athlete, the applicant has undertaken work as both a coach and referee. The applicant outlined that he currently coaches the University of Western Australia (UWA) Kendo Team in a voluntary capacity. In addition, he coaches 10 children and 2 adults from his Sung Moon Kendo Academy in Perth. This is also undertaken in a voluntary capacity, not as a business run for profit. Through his coaching, the applicant’s students have achieved placed positons in a number of Western Australian competitions, and the UWA team has achieved placed positions in the Australian University Games.

24. The Tribunal has before it the departmental file, which contains a letter from UWA dated 1 March 2016, confirming the applicant’s work as a volunteer Kendo Instructor and acknowledging the contribution he has made to the program.

25. The applicant’s achievements in the sport of kendo, must be assessed as at the time of application on 9 March 2016. The Tribunal notes that a number of achievements outlined in the submissions occurred after that date, and therefore cannot count towards the assessment. However, at the time of application, the applicant had been a referee and sat on the Grading Examination Panel of the 2014 Australian Kendo Championship, and at the 2014 and 2013 Western Australian Kendo Renmei State Kendo Championships. The applicant also ran two kendo clubs in Korea.

26. On the evidence before the Tribunal, it is apparent that at the time of application the applicant was a skilled kendo athlete who had achieved the 6^th dan and had some success as a competitive athlete at the University games level. The applicant continues to volunteer as a coach and no doubt has been able to attract students interested in kendo because of his expertise. The evidence indicates that the applicant may well be on the cusp of a successful international career in kendo, but has not been able to establish to the Tribunal’s satisfaction that he had an internationally recognised record of exceptional and outstanding achievement in the sport at the time of visa application.

27. 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.

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

29. It follows that the second, third, fourth and fifth applicants do not meet the secondary criteria in cl. 858.321 as they are not, nor were they previously, members of the family unit of a person who holds a Subclass 858 visa on the basis of having satisfied the primary criteria. Accordingly, the decision in respect of the secondary applicants must be affirmed.

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) class BX visas.

    Sheridan Lee
    Member