Lin (Migration)

[2018] AATA 5696

Lin (Migration) [2018] AATA 5696 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuqi Lin

CASE NUMBER:  1802739

DIBP REFERENCE(S):  BCC2017/2444006

MEMBER:Jennifer Cripps Watts

DATE:14 December 2018

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:

· cl.858.212(2)

Statement made on 14 December 2018 at 2:21pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – table tennis player– Record of exceptional and outstanding achievement – Prominent in the field of table tennis at the time of application – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212, 858.214

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 2 January 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 Distinguished Talent Class BX visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided specialised assistance to the Australian Government in matters of security.

3. The visa applicant (the applicant) applied for the visa on 30 June 2017. The delegate refused to grant the visa on the basis that cl.858.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the field of sport, specifically, table tennis.

4. The applicant’s visa was refused on 2 January 2018.  He applied for review by the Tribunal on 2 February 2018, within time, and provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 14 December 2018 to give evidence and present arguments. The Tribunal heard oral evidence from Scott Houston, Chief Executive Officer of Table Tennis Australia (TTA), Paul Zhao of Paul Zhao’s Table Tennis Academy and PCYC Hornsby head coach and the applicant’s sister, Lin Lin.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of sport, table tennis.

9. To satisfy the criteria for the visa the applicant must meet the requirements of cl.858.212(2) or (4). Clause 858.212(2) requires that the applicant:

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

   (i)a profession;

   (ii)a sport;

   (iii)the arts;

   (iv)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

   (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.

10. The applicant was born in March 1999. It was stated in the delegate’s decision that he had not turned 18 at the time of application. The Tribunal checked the applicant’s birth date and the date of visa application and, on the evidence, is satisfied that the applicant had already turned 18 at the time of application. Clause 858.212(f) is not applicable.

11. Clause 858.212(4) requires that an applicant has provided specialized assistance to the Australian Government in matters of security. There is no claim made that the applicant is seeking to meet this sub-clause. It is not applicable in this case.

12. The applicant applied for the visa on the basis of his record and achievements as a table tennis player.  He was nominated, in a Form 1000 that accompanied his visa application, by an Australian organisation, Table Tennis Australia.  The form and attached statement were signed and dated by the Chief Executive Officer, Peter Marriott, on 23 June 2017.  Mr Marriott, on behalf of Table Tennis Australia, included information attesting to the applicant’s achievements in China and Australia.

13. The Tribunal has considered all relevant facts and matters, including the documentary and oral evidence provided. Regard has been had to matters raised in the delegate’s decision when reaching a decision about whether he meets the criteria in cl.858.212(a)-(e). He must meet all the applicable cl.858.212(2) criteria.

    Exceptional and outstanding

14. An applicant must be recognized, relevant to this matter, in the sport of table tennis at an international level to be considered exceptional and outstanding.  The Tribunal needs to be satisfied that the applicant’s achievements should be acclaimed in any country where the field is practiced the achievements should be recognized in a number of countries, including Australia.

15. The applicant provided a large amount of evidence that satisfies the Tribunal he is in the top rankings in his sport nationally and that his international rankings are outstanding.  He was a successful player in China before coming to Australia in 2016 and the Tribunal accepts evidence of his exceptional achievements before he was 18.  The applicant brought with him to the hearing a large number of trophies and medals he has won, including in 2017 and 2018 at Australian and international tournaments.  The additional evidence he has provided since making the visa application, demonstrating his achievements, includes that he has achieved the following:

    a.April 2016 NSW Junior and U18 Open Championships – U18 Men’s Singles Champion and Doubles runner-up

    b.February 2017 NSW Youth Closed Championships U21 Men’s Singles Champion and U21 Men’s Doubles Champion and Closed Junior Division Singles Runner Up and 1/2  Doubles Winner

    c.March 2017 U18 Men’s singles champion at NSW Junior & Under 18 Closed Championships

    d.March 2017 Junior Invitational Round Robin U18 Men’s Single Champion

    e.March 2017 Table Tennis NSW 2017 Junior Open Championships U18 Men’s Singles and Doubles Champion

    f.April 2017 ITTF World Junior Circuit U18 doubles runner-up

    g.June 2017 NSW Closed Championships June U21 Men’s Singles and mixed doubles winner and Men’s Open Singles winner

    h.July 2017 ITTF World Tour, Australian Open Men’s Singles no.5 (beating Australia’s number 10 ranking senior player)

    i.2017 national  rankings list July, September and December, Australia Youth Men No.1 and U18 boys No.1

    j.July 2017 NSW Open Championships won over the no.1 ranked men’s senior player, Chris Yan who is a former Olympic and Commonwealth Games competitor in July and September

    k.October 2017 Inter Asian Clubs Table Tennis Championships, beat the no.1 ranked player, Heming Hu, who represented Australia at the Olympics and Commonwealth Games

    l.November 2017 Macquarie Uni Open Table Tennis Tournament, open division 1^st place

    m.November 2017 Spanish Open, performed well beating some ranked open players

    n.Spanish Open April/March 2018, top of the group qualifying round for U21 and ranked 32 at the competition

    o.July 2018 China National Table Tennis Club C Tournament, bronze medal, defeated senior ranked player

    p.October 2018 ITTF World Challenge Belgium Open, men’s singles win over U21 ranked player

    q.October 2018 Seamaster World Tour Swedish Opens

16. The applicant also travelled to Germany and Thailand to compete in international circuit competitions and intends to compete again in the above countries in 2019, plus Hong Kong.  He has two more years as an U21 player but can and does compete in open tournaments.    In 2017 he was ranked the the no.1 player in the U18 and U21 divisions in Australia and in 2018 is still the no.1 ranked player in the U21 division.  He is currently number ranked 55 internationally.

17. The Tribunal spoke at length with the applicant and his witnesses at the hearing.  They all gave consistent evidence about the applicant’s national and international record of achievements, rankings and future aspirations to play table tennis for Australia at the Olympic and Commonwealth Games.

18. On the evidence, including the oral evidence of the applicant and his three witnesses at the Tribunal hearing, the Tribunal is satisfied that the applicant has an internationally recognized record of exceptional and outstanding achievement in table tennis.

19. Accordingly, the Tribunal is satisfied that the applicant meets cl.858.212(2)(a).

    Still prominent in the area

20. Applicants must have current prominence in their area, in this case, table tennis.  Prominent is not defined in the Regulations.  However, referring to Departmental policy, ‘prominent’ should be accorded ordinary dictionary meaning within context; appropriate synonyms are ‘conspicuous’ and ‘important’.  On the basis that the applicant, while residing in Australia as a student, has travelled extensively to international competitions to play table tennis in several countries including Sweden, Belgium, Germany, China and Thailand, the Tribunal, also taking into account the results he has achieved, and giving the word ‘prominent’ its ordinary meaning, is satisfied that the applicant is still prominent in his sport and can see no reason why he will not continue to be in the future.  

21. The CEO of TTA attended the hearing, in his capacity as the CEO, to give evidence in support of the applicant which suggests to the Tribunal that the applicant is considered by TTA to be important.

22. Accordingly, the applicant meets cl.858.212(2)(b).

    Asset to the Australian community

23. An applicant for a Distinguished Talent visa must demonstrate that the granting of the visa will benefit the Australian community as a whole, not just the applicant and nominator.  ‘Asset’ does not only refer to economic benefit, it can also refer to social or cultural benefit.  The benefit must be national, not only local or regional.

24. There is evidence before the Tribunal that Mr Zhao employs the applicant as a coach and that he himself is coaching the applicant ‘so he can catch up to top tie work ranked players’.  Mr Zhao is a coach with many years’ experience who has coached players who have competed internationally, including at the Commonwealth and Olympic games.  The Tribunal is satisfied he is eminent and highly regarded in the sport of table tennis.  Mr Zhao is of the opinion that the applicant has an international record of outstanding and exceptional performance in table tennis now, but if he can access the squad training offered by TTA, believes he could be an Olympic competitor for Australia.

25. The CEO of TTA, Mr Houston, provided written evidence and attended the hearing to give oral evidence.  He said that TTA is committed to driving the success of the sport in Australia and in terms of its international reputation.  He said they are recruiting exceptional talent for that purpose.  He said that in his opinion the applicant has the capability to be placed in TTA’s elite training squad and that there is a ‘high probability that he could be part of the national team and squad. 

26. TTA has tier 1 and tier 2 level squads, which include players from the Open, Under 21 and Under 18 divisions.  There are about eight to 10 players in each squad.  Mr Houston said that the applicant has already beaten two of the tier 1 players recently, who are in the Open division, and that his opinion is that the applicant is a potential Olympic and Commonweath Games prospect.  The rules at TTA mean that a player can only be placed in one of the elite squads if they hold, at a minimum, permanent residency.  He said that if permanent residency is granted to the applicant, he will be assessed for entry against TTA’s criteria for inclusion. 

27. Both Mr Houston and Mr Zhao gave evidence about the applicant’s sporting achievements at Australian and international tournaments, including that his ranking has improved since competing internationally, in Sweden, German, Belgium and Thailand in 2017 and 2018 and that in Australia the applicant is currently the no.1 player in Australia in the Under 21 men’s ranking and fifth ahead of some other national team members. 

28. The Tribunal has given due weight to the applicant’s record in terms of international achievement being, albeit of somewhat short duration given his age.  He is an outstanding player with exceptional achievements in the Tribunal’s view.

29. Mr Zhao gave evidence about the value of the applicant’s coaching abilities and the benefit to the players at Paul Zhao’s Table Tennis Academy in Hornsby.  He has offered the applicant a contract to continue working there as an assistant coach and providing him with flexibility relating to his own training and attending tournaments. 

30. Having considered all relevant evidence, together with the applicant’s own statement and resume, the Tribunal is satisfied that the applicant has an international profile and that he is a gifted and talented table tennis player who has had success at a national and international level.  He coaches other players and speaks both Mandarin and English.  Both Mr Houston and Mr Zhao were considered to be credible witnesses and their evidence about the applicant’s potential to represent Australia at the Commonwealth and Olympic Games is accepted as evidence that the applicant would be an asset to Australia. 

31. For these reasons, the Tribunal is satisfied that the applicant meets cl.858.212(2)(c).

    Employability

32. The applicant must demonstrate why they would have no difficulty finding employment or how they expect to support themselves, employment or self-employment evidence.  Income from an area that is not the field cannot satisfy the 858.212(20(d) criteria.  Existing funds or assets do not satisfy this criteria.

33. The Tribunal accepts the evidence provided relating to the applicant’s employment as an assistant coach with Paul Zhao and is satisfied that he will be able to support himself. 

34. Accordingly, the applicant meets cl.858.212(2)(d).

    The nominator and nomination form (858.212(e)

35. Form 1000 must accompany the visa application.  The nominator must be an Australian citizen, permanent resident, eligible New Zealand citizen or an Australian organization having national reputation relevant to the area of the applicant’s achievement and testifying to the applicant’s record of achievement. 

36. The nominator must have a national reputation and be highly regarded throughout Australia.  A reputation confined to one state or region would not be considered national.  The reputation must be in the same field as the applicant’s.  The nominator should be representative and recognized as such by all Australian participants in the relevant field.

37. The nominator is Table Tennis Australia.  The Tribunal is satisfied that this is the peak national sporting body for the sport in Australia and that the nominator has a national reputation relevant to the area of the applicant’s achievement.

38. TTA CEO, Mr Houston, provided written and oral evidence attesting the applicant’s achievements at national and international level.

39. For these reasons, the applicant meets cl.858.212(2)(e).

40. For the reasons given, the Tribunal is satisfied that the applicant meets cl.858.212.

41. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the Subclass 858 visa.

    DECISION

42. 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:

    · cl.858.212(2)

    Jennifer Cripps Watts
    Member