Lovokuro (Migration)

[2020] AATA 228

Lovokuro (Migration) [2020] AATA 228 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wilson Lovokuro

CASE NUMBER:  1925230

HOME AFFAIRS REFERENCE(S):           BCC2019/3947130

MEMBER:R. Skaros

DATE:3 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·        

cl.408.222 of Schedule 2 to the

Regulations; and

· cl.408.219A of Schedule 2 to the Regulations.

Statement made on 03 February 2020 at 11:16am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Elite player, coach, instructor or adjudicator stream – Assistant Coach – Development Officer – letter of endorsement – letter from Rugby Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.57; Schedule 2, cls 408.219A, 408.222

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 Home Affairs on 19 August 2019 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 August 2019. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.222(3)(d) of Schedule 2 to the Regulations because the applicant had not provided a letter of endorsement from Rugby Australia certifying the applicant’s ability to play, instruct, coach or adjudicate at the Australian national level or equivalent.

4. The applicant provided a copy of the delegate’s decision record with the application for review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the requirements for a coach for the purposes of cl.408.222.

   ‘Elite player, coach, instructor or adjudicator’ requirements

7. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for the applicant to meet cl.408.219A, which is an essential requirement for the visa.

8. In this case, the applicant seeks to satisfy the ‘Elite player, coach, instructor or adjudicator’ requirements in cl.408.222(3), which means that cl.408.222 applies to the applicant: cl.408.222(1). The applicant has not claimed to meet the ‘Sports trainee’ requirements in cl.408.222(2), or any of the alternative requirements in the other clauses.

   Purpose of stay – cl.408.222(3)(a)

9. Paragraph 408.222(3)(a) requires that the applicant seeks to enter or remain in Australia to be a player, coach, instructor or adjudicator in relation to an Australian sporting team or organisation.

10. It was indicated in the visa application that the applicant seeks to enter Australia to work as an Assistant Coach – Development Officer to train and coach junior rugby teams and train and assist with coaching of senior men’s team for the Casino Bulls Rugby Union Club.  The applicant provided a letter of invitation from the Casino Rugby Club.  The applicant indicated that he has experience in rugby and has obtained Key Factor Analysis, Functional Role Analysis, Introduction to Coaching and Coaching Children certificates issued by World Rugby.  There is nothing before the Tribunal to suggest that the applicant is seeking to come to Australia other than as a coach. On the evidence before it, the Tribunal is satisfied that the requirements of cl.408.222(3)(a) are met.

    Invitation – cl.408.222(3)(b)

11. Paragraph 408.222(3)(b) requires that the applicant has been invited by a sporting organisation that is lawfully operating in Australia to participate in that activity in relation to an Australian sporting team or organisation.

12. ‘Sporting organisation’ is defined in r.2.57 as either an Australian organisation, a government agency or a foreign government agency that administers or promotes sport or sporting events. The terms ‘Australian organisation’, ‘government agency’ and ‘foreign government agency’ are also defined in r.2.57.  As it applies in this case an Australian organisation includes a body corporate, a partnership or an unincorporated association. 

13. The applicant provided a letter of invitation from the Casino Bulls Rugby Union Club dated 7 August 2019 inviting him to coach for the club from 10 August 2019 to 10 August 2021.

14. A search of the Casino Bulls Rugby Union Club Australian Business Number shows it is an unincorporated association.  On this evidence, the Tribunal is satisfied that the requirements of cl.408.222(3)(b) are met.

    Formal arrangements – cl.408.222(3)(c)

15. Paragraph 408.222(3)(c) requires that the applicant has entered into a formal arrangement that provides for the applicant to participate as a player, coach, instructor or adjudicator, as relevant, in relation to an Australian sporting team or organisation for a period specified in the arrangement.

16. The letter of invitation from the Casino Bulls Rugby Union Club provides a formal arrangement in terms of responsibility for financial support, fees and visa expenses. On this evidence, the Tribunal is satisfied that the requirements of cl.408.222(3)(c) are met.

    Letter of endorsement - cl.408.222(3)(d)

17. Paragraph 408.222(3)(d) requires that the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level.

18. The relevant evidence from the national sporting body was not before the delegate at the time of their decision.  However, by the time of this decision, the applicant had provided a letter dated 27 August 2019 from Rugby Australia, being the relevant national sporting body, stating it believes the applicant has the ability to play, coach or instruct at a national level.  Therefore, the requirements of cl.408.222(3)(d) are now met.

    Sporting organisation passes the sponsorship or support test – cl.408.222(3)(e)

19. Paragraph 408.223(3)(e) requires that the relevant sporting organisation is either a temporary activities sponsor or a long stay activities sponsor and passes the sponsorship test in relation to the applicant. Alternatively, if the applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the sporting organisation must pass the support test in relation to the applicant: cl.408.222(3)(e). 

20. In this case, having regard to the applicant’s location at the time the application was made and the proposed length of stay stated on the application form, the sporting organisation is required to be an approved sponsor of the relevant kind and pass the sponsorship test. In summary, a person ‘passes the sponsorship test’ if the following requirements are met (see cl.408.111):

    ·       the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and

    ·       either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (‘adverse information’ and ‘associated with’ have the meanings given in rr.1.13A and 1.13B); and

    ·       if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.

21. Information held by the Department shows that the Casino Bulls Rugby Union Club is an approved temporary activities sponsor.  The Department file shows it has agreed in writing to sponsor the applicant. There is no evidence before the Tribunal which suggests that the sponsor has withdrawn their sponsorship of the applicant. There is also nothing before the Tribunal which suggests that there is any adverse information known about the sponsor. The Tribunal is accordingly satisfied that the requirements of cl.408.222(3)(e) are met.

22. In light of the above, the Tribunal finds that the applicable requirements of cl.408.222 have been met. Accordingly, cl.408.219A is met.

23. Given the above findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl.408.222 of Schedule 2 to the Regulations; and

    ·cl.408.219A of Schedule 2 to the Regulations.

    R. Skaros

    Senior Member