Lkhagvadorj (Migration)

[2019] AATA 2815

Lkhagvadorj (Migration) [2019] AATA 2815 (11 February 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Altantulga Lkhagvadorj

Ms Uugantsetseg Javzandulam Miss Chinkhuslen Altantulga

CASE NUMBER:  1820481

DIBP REFERENCE(S):  BCC2017/4441902 BCC2017/4617105

MEMBER:  Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 February 2019 at 3:43 pm (QLD time)

DATE OF WRITTEN REASONS:              25 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The     Tribunal     remits     the   application    for reconsideration, with the direction that the first- named applicant meets the following criteria for a Subclass 858 visa:

·cl.858.212 of Schedule 2 to the Regulations.

Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the  grant of the visa, including the criteria in respect  of the second-named and third-named applicants.

Statement made on 25 February 2019 at 11:58am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 – table tennis player – nominated by Table Tennis Queensland – best Mongolian table tennis athlete of his generation – impact on table tennis in Australia to help the sport grow – sustained excellence internationally – requirement of ‘prominent’ less than requirement of outstanding and exceptional record of achievement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cl.858.212

CASES
Gaffar v MIMA [2000] FCA 293
Zhang v MIMA [2007] FMCA 664

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 25 June 2018 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under the Migration Act 1958 (the Act).

1. At the hearing on 11 February 2019, the Tribunal made an oral decision. The following are the written reasons for that decision.

STATEMENT OF DECISION AND REASONS

1. The first-named applicant (the applicant) is a 30-year-old citizen of Mongolia. The second- named and third-named applicants are identified in the visa application as the applicant’s partner and daughter.

1. The Subclass 858 (Distinguished Talent) 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.

1. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

1. The applicants applied for the visas on 23 November 2017 on the basis that the applicant satisfied the primary criteria as he had an internationally recognised record of exceptional and outstanding achievement in the sports area of table tennis.

1. The delegate refused to grant the visas on the basis that they were not satisfied that the evidence provided demonstrated that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sports area of table tennis as required by cl.858.212(2)(a). Further, the delegate was not satisfied that any of the applicants were the member of a family unit of a person who, having satisfied the primary criteria, was a holder of a Subclass 858 visa.

1. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 13 July 2018.

1. The applicants appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Trevor Barrett, President of Table Tennis Queensland and Jason Walsh, Executive Officer, Table Tennis Queensland.

1. The applicants were represented in relation to the review by their registered migration agent.

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

ISSUES

1. An applicant for a Subclass 858 visa is required to meet cl.858.212(2) or (4).

1. Clause 858.212(2) requires that at the time of the visa application, the applicant:

(a)has an internationally recognised 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.

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

1. The issues to be determined by the Tribunal, assessed at the time of the visa application, are as follows:

(a)  Did the applicant have an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically table tennis? And, if so,

(b)  Was the applicant still prominent in the area? And, if so,

(c)  Would the applicant be an asset to the Australian community? And, if so,

(d)  Would the applicant have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area? And, if so,

(e)  Had the applicant produced a completed approved form 1000? And, if so,

(f)    If the applicant had not turned 18, or was at least 55 years old, at the time of  application

– would the applicant be of exceptional benefit to the Australian community?

CONSIDERATION OF CLAIMS AND EVIDENCE

1. As already noted, 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 Queensland.

1. The Tribunal has considered all relevant facts and matters, including the documentary and oral evidence provided.

Issue 1 – Did the applicant have an internationally recognised record of exceptional and outstanding achievement in the area of sport, specifically table tennis?

1. An applicant must be recognised in their field (sport) at an international level as having a record of exceptional and outstanding achievement.

1. ‘Exceptional and outstanding achievement’ is not defined in the Act or the Regulations. Department policy (PAM3) gives guidance as follows:

   What does ‘exceptional’ mean

   For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to their peers in their field.

   ‘Internationally recognised’ in this context means that a person’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.

   ‘Exceptional’ and ‘outstanding’ are those who are internationally recognised as leaders in their particular field.

   Policy requirements

   Claims of an “excellent” level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.

   A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

   An achievement that may attract national acclaim would not be considered as ‘international recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

   Given the ordinary dictionary meanings, in order to have a ‘record of exceptional and outstanding achievement’ an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field. An applicant should be at the very top of their field.

   Assessing this criterion

   In assessing the applicant’s record of achievement, officers may take into account information such as, indicated in the following eight examples:

   ·Information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement

   ·Supporting statement and material provided by the applicant detailing relevant aspects of  their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia

   ·Supporting statements from internationally recognised individuals or organisations in the field who can pass comment on the applicant’s achievements and the applicant’s reputation within the field.

   ·Awards or higher qualifications received from internationally recognised institutions or organisations

   ·Details and supporting material on sporting achievements; including:

   o    national and international rankings and

   o    results in competitions or tournaments and

   o    statements from international sporting bodies and

   o    sporting scholarships received and

   o    newspaper and magazine articles attesting to achievements.

   ·Details and supporting material on achievements in the arts including:

   o    books published and

   o    national and internationals sales achieved and

oawards and commissions received and

ogalleries in which works are displayed and

oscale and audience of displays held and

orecognition by peers and

ohonours and accolades (for example, an Academy Award, or a Nobel Prize in Literature) and

oacademic qualifications associated with the applicant’s area of the arts and

ostatements from international artistic bodies and

onewspaper and magazine articles attesting to achievements.

·     Details and supporting material on academic and research achievements, including:

oreports commissioned and

obooks published and

oarticles appearing in professional journals, magazines and newspapers and

oawards received and

orecognition by peers and

ostatements of achievement from government, professional, scientific or other relevant bodies and

ohonours and accolades (for example, a Nobel Prize in Medicine) and

oprofessional designation such as PhD, P.Eng or M.D, whether this be purely honorary or symbolic, or associated with credentials attesting to specific competence, learning or  skills and

omembership to international groups and organisations associated with the area of  learning and

oevidence of government/private grants associated with the applicant’s area of research and

oevidence of receiving a fellowship or honorary appointments such as Professor or Associate Professor in highly regarded educational institutions that specialise in the same field.

·     Details and supporting material on professional achievements including:

oindustry awards and accolades and

oreferences from current and past employers and

ostatements from prominent industry peers and

oacademic degrees or professional designations associated with the applicant’s field of work and

opersonal/professional titles (such as CEO, Lord, Knight, Right Honourable) indicating an earned rank or position within a formal power structure.

The internet is an important source of additional material and a method of confirming the accuracy of any claims made. Any adverse or conflicting information obtained from this source should be put to the applicant for comment.

International recognition required

Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.

It is expected that an applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have

recognition and acceptance in the wider Australian community as well as international standing. In determining the international standing of the applicant, officers should consider:

·the international standing of the country, where the applicant’s achievements were realised, in respect of the particular field

·the standing of the achievement in relation to Australian standards and

·the standing of the achievement in relation to international standards.

For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:

·field is undertaken and recognised in a number of countries including Australia and

·achievement would be similarly recognised in relation to international and Australian  standards for that field.

1. Evidence and submissions as to the applicant’s top accolades in table tennis include the following achievements of the applicant in the field of table tennis (which includes representing Mongolia in several tournaments including 10 times in World championships,  six times in continental sports competitions, three times in the Asian games and 11 to15 international sport matches):

World Contests

World Team Table Tennis Championships representing Mongolia

2006         Germany, Mongolian team placed 4th  out of 24 countries, D category 2008  China

2010         Russia

2012Germany, 1st  player in team winning 10 out of 12 games. Team won Gold medal in Group E

World Table Tennis Championships representing Mongolia – Singles and Doubles

2005         China

2007         Croatia

2009         Japan

2013         France Asian Games 2002         Korea

2006         Qatar

2010         China

Asian Table Tennis Championships

2005         Korea

2007         China, Applicant #73

2012         China 2013

Asian Olympic Table Tennis Qualification Tournament

2008         Hong Kong

Universiade

2007         Bangkok

2011         China

Asian University Championship

2008         Mongolia

2010         China

Interreligious Peace Sports Festival

2005         Korea

2007         Korea, 1st Men’s Table Tennis Doubles, 2nd Men’s Table Tennis Singles

International Children’s tournament

2002         Russia

2003         Russia

East Asia Grand PRIX Hopes Table Tennis Championships

1998         Japan

1999         Japan

2000         Korea

2001         Japan

ITTF Open Tournament 2009     China Mongolia

Mongolian Youth Championships

1999         Champion

2001         Champion

2002         Champion

2004         Champion

2005         Champion Championship of Mongolia 2003         Runner-up

2005         Runner-up

2006         Champion

2007         Runner-up

2008         Champion

2009         Champion

2010         Runner-up

2011         Champion

2013         Runner-up

First Mongolian table tennis league competition

2006         Champion

People’s 12th Grand games of Mongolia

2008         Champion National Championship 2003         Team winner

2011         Team winner

National League tournament

2012         Main player of the team

National league tournament

2012  Top sportsman ranking 2013 Top sportsman ranking Games between Top 8 sportsmen 2006         2nd place

Games between top 10 sportsmen

2012         Winner

2013         Winner

Australia

2016         Queensland State Championships Gold Medal

Australian National Championship participant in team tournament – 3rd place 2017                 Queensland State Championships Gold Medal

Member of Queensland Senior Open Men’s table tennis team for the Australian Senior Table Tennis Championships, September 2017, Gold medal

1. A letter from Scott Houston, (then) Interim Chief Executive Officer of Table Tennis Australia dated 8 November 2017, states that before the applicant arrived in Australia he was recognised as the best Mongolian table tennis athlete of his generation following an outstanding career as a junior and senior representing Mongolia, with him being awarded the title of Master of International Sport at Table Tennis Genre by the State Sport Conferment Union of Mongolia. Further, since arriving in Australia, he has continued to be involved in table tennis as a player and coach and that it is in the area of coaching that the applicant can have the biggest impact on table tennis in Australia to help the sport grow.

1. The applicant’s evidence at hearing included as follows:

(a)  He has mainly been based in Australia since 2015 and stopped playing in 2014 and  2015 to concentrate on English studies. He then began playing again.

(b)  His highest world ranking was 600 in 2012. He has no current international ranking because he has not participated in enough tournaments.

1. Mr Walsh’s evidence at hearing included as follows:

(a)  He first became aware of the applicant in 2016 at the Queensland State Championships. At the time word was starting to get around the table tennis fraternity in Queensland about the applicant based upon the various World Championships he had completed in the previous years. He was considered a player of international reputation.

(b)  To be able to represent any country at World Championships shows international excellence, particularly one with such a high rating as Mongolia in table tennis.

(c)  His achievements in Australia in 2016 and 2017 have continued to demonstrate his high level of ability in a sport which can continue to be played to quite a mature age.

1. Mr Barrett’s evidence at hearing included as follows:

(a)  He first met or became aware of the applicant from the results of the 2016 Queensland Championships which he won, and then won again in 2017. The two players that he defeated in 2017 were both playing for Australia at the time. Even though the applicant was not in a position to represent Australia he was defeating the players that were.

(b)  Mongolia is very big in table tennis. The field of play in table tennis, particularly in men’s (much more than women’s) is huge, particularly across the top counties, including Mongolia, such that being ranked 600 in the world is actually a much better result than it might seem. There is actually very little difference between players at this level. The applicant’s previous record of achievement prior to arriving in Australia was internationally excellent.

(c)  The applicant has done the introductory level of coaching and dependent upon his visa will be eligible to complete the next level and will have very good prospects for employment as a coach in Australia.

1. It was submitted that:

(a)  The applicant has demonstrated a sustained level of exceptional and outstanding achievement given his years of competition including national competitions and international competitions.

(b)  The applicant has demonstrated a high level of success and achievement in table tennis dating from 1998, the year he started playing the game. Given his remarkable early success beginning with national championships during the first year of playing, it is submitted that such rapid level of success is indicative of a high degree of natural talent, which can reasonably be described as exceptional.

(c)  The applicant’s high level of success and rapid advancement led not only to success as a singles player but success in team play, demonstrating the versatility and breadth of the applicant’s talent.

(d)  It is beyond the power of policy to impose a higher or greater standard or threshold that  is reasonably read from the legislation which the policy interprets, such that is submitted that policy reference to an applicant being ‘at the very top of their field’ imposes a far more restrictive and materially different standard than would reasonably be called for given the ordinary usage of the words ‘outstanding’ and ‘exceptional’, such the policy should not apply in this regard.

(e)  The applicant is currently studying. He has a degree in sports and is looking forward to coaching and training. His goal is to bring to Australia his talent, energy and benefits in trying to help players, especially young players.

(f)    A ranking of 600 in a sport played by millions shows exceptional achievement, and the applicant’s achievements throughout 2010 to 2017 show sustained excellence internationally.

1. It is clear from the wording of cl.858.212(2)(a) that in considering whether the applicant had an internationally recognised record of exceptional and outstanding achievement in table tennis at the time of the visa application, the Tribunal is not confined to considering the applicant’s record just at that time, but can have regard to earlier achievements.

1. The Tribunal has carefully considered all of the evidence before it. In determining whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the sport of table tennis, the Tribunal has had regard to the case of Zhang v MIMA [2007] FMCA 664 in which it was 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. It was stated that a record is an aggregation or a list, not necessarily a large aggregation or a long list. The Tribunal also had regard to the case of Gaffar v MIMA [2000] FCA 293 where the Court considered the phrase ‘exceptional record of achievement’ in an earlier category of skilled residence visa. The Court noted that 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. It is not required that the applicant be a ‘living treasure’. It was noted that the circumstances that will meet this requirement will vary across different professions and activities as some will require far greater levels of knowledge and skill by a visa applicant to rise above the ordinary and the merely competent.

1. The Tribunal has had regard to the submissions made and to all relevant facts and matters provided by the applicant. The evidence shows that the applicant has had recent success in Australia and significant success internationally prior to the time of application. Most notably, his international achievements include representing Mongolia 10 times at the World Championships as well as other international tournaments. Further, the evidence of officials from the sport of table tennis is that Mongolia, the applicant’s home country where he had very significant success as both a junior and senior player, is a country whose international standing in table tennis is very high. Consistent with PAM3, the applicant’s previous rating at the top of the field in his home country, in circumstances where that home country enjoys such a high place in the world in the sport of table tennis, is also consistent with an international record of exceptional and outstanding achievement.

1. The Tribunal is satisfied on the totality of the evidence before it, including that the applicant’s successes in championships, as set out above, internationally and nationally in Mongolia,  the commendation of elite table tennis players and the strong endorsement from Table Tennis Queensland and Table Tennis Australia, that the applicant has demonstrated that at the time of the visa application, the applicant had an international record of outstanding and exceptional achievement in the sport of table tennis.

1. The requirements of cl.858.212(2)(a) are therefore met.

Issue 2 – Was the applicant still prominent in the area?

1. The requirement of cl.858.212(2)(b) is not whether the applicant is still prominent now but whether, at the time of the visa application, the applicant was still prominent. The evidence is that at that time, 23 November 2017, he was the 2017 Queensland State Championships Gold Medalist and a Member of the 2017 Queensland Senior Open Men’s table tennis team for the Australian Senior Table Tennis Championships defeating two players who represented Australia internationally.

1. ‘Prominent’ is not defined in the Regulations. However, consistent with PAM3, ‘prominent’ should be accorded the ordinary dictionary meaning within context: appropriate synonyms are  ‘conspicuous’  and  ‘important’.   Notably  PAM3   also  states  ‘an  applicant     claiming

distinguished talent in a particular area, but who has not been active at a high level in that area for more than 2 years, would not be regarded as retaining prominence in that area’.

1. Although at the time of the visa application the applicant was not at as high a level in the sport as he had been previously, the Tribunal considers that the requirement to still be ‘prominent’ is something less than the requirement of having an outstanding and exceptional record of achievement as required for cl.858.212(2)(a). Having had regard to the applicant’s achievements in the two years1 leading up to the date of the visa application, as Queensland State Championships Gold Medalist and a participant in the Australian National Championship in those years, the Tribunal is satisfied that the applicant was still prominent in the area of table tennis at the date of the visa application.

1. The requirements of cl.858.212(2)(b) are therefore met.

Issue 3 – Would the applicant be an asset to the Australian community?

1. An applicant 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.

1. The oral evidence of the two witnesses from Table Tennis Queensland and the written reference from Table Tennis Australia demonstrate to the Tribunal that the applicant is eminent and highly regarded in the sport of table tennis in Australia and that he will be an asset to the Australian community in terms of not just his individual performance in the sport in the future but also as a mentor, inspiration and coach for others. The Tribunal considers Mr Houston, Mr Barrett and Mr Walsh to be credible independent witnesses.

1. Having considered all relevant evidence, together with the evidence of the applicant’s achievements, 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 and that, further, he freely avails himself to others in the sport, such that he would be an asset to the Australian community.

1. The requirements of cl.858.212(2)(c) are therefore met.

Issue 4 – Would the applicant have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area?

1. In evidence, Mr Barrett and Mr Walsh all expressed the view that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia  in the area of table tennis. Evidence included that the applicant has recently successfully completed first-level coaching accreditation in Australia and will be able to further these coaching qualifications. On the evidence, the Tribunal is satisfied that the applicant would have no difficulty in obtaining employment in the area.

1. The requirements of cl.858.212(2)(d) are therefore met.

Issue 5 – Had the applicant produced a completed approved form 1000?

1. The applicant produced a completed nomination (form 1000) with the visa application.

1. The requirements of cl.858.212(2)(e) are therefore met.

1 Consistent with PAM3

Issue 6 – If the applicant had not turned 18, or was at least 55 years old, at the time of application – would the applicant be of exceptional benefit to the Australian community?

1. As the applicant was 29 years of age at the date of the visa application, this requirement is not in issue.

Conclusion

1. As the applicant meets all of the applicable requirements in cl.858.212(2), the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

1. Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the second-named and third-named applicants.

DECISION

1. The Tribunal remits the application for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 858 visa:

   ·cl.858.212 of Schedule 2 to the Regulations.

Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the second-named and third-named applicants.

ATTACHMENT - Clause 858.212 of Schedule 2 to the Migration Regulations 1994

858.212

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

1. The applicant:

(a)    has an internationally recognised 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

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.

1. 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.