MELLO XAVIER (Migration)

[2019] AATA 6735

MELLO XAVIER (Migration) [2019] AATA 6735 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alexandra MELLO XAVIER

CASE NUMBER:  1808546

DIBP REFERENCE(S):  BCC2016/2205716

MEMBER:Jennifer Cripps Watts

DATE:6 December 2019

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 for a subclass 858 (Distinguished Talent) visa:

·     cl.858.212 of Schedule to the Regulations

Statement made on 06 December 2019 at 6:05pm

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the sport of body building – applicant initially aligned with Australasian Natural Bodybuilding (ANB) – natural bodybuilding enforcing strict drug testing – ANB not holding earlier premier events – world champion – top rankings at international events – more international federations and events in natural bodybuilding – employment in health and fitness services – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 858.211, 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 (the delegate) on 13 March 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 visa applicant applied for the visa on 28 June 2016. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(1) of Schedule 2 to the Regulations at the time of application because the delegate was not satisfied that she had an internationally recognised record of exceptional and outstanding achievement in, relevantly, a sport, body building.  The applicant must satisfy all the primary criteria.

3. On 28 March 2018, the applicant applied to the Tribunal for merits review and provided a copy of the delegate’s decision. 

4. On 11 November 2019, the Tribunal sent the applicant an invitation to attending a scheduled hearing on 6 December 2019.  A response was received by the Tribunal on 13 November 2019 indicating that the applicant and her migration agent would attend.  In the invitation it was requested that if the applicant wished to rely on any additional information it should be provided by 29 November, seven days before the hearing.

5. The applicant appeared before the Tribunal on 6 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Jessica D’Arienzo and Philip Lenher.

6. The applicant was represented in relation to the review by her 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 applicant meets the requirements of subclauses (2) or (4) of cl.858.212 of Schedule 2 to the Regulations. The applicant makes no claim to meet cl.858.212(4) and, accordingly, subclause (2) is not applicable.  Relevant to this case, cl.858.212(2) applies and requires that the applicant:

   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 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.

9. Departmental policy, PAM3, gives the purpose of the Subclass 858 visa as being, relevant to this matter, for someone outside Australia who wishes to settle permanently in Australia and who has an internationally recognised record of exceptional and outstanding achievement in a sport, specifically body building.  It is further included in the policy that a high acceptance threshold applies and that the intention of the program is to provide permanent residence to exceptionally outstanding individuals who are eminent in the top echelons of their field, who would not qualify under other visa categories but will make substantial contributions to the Australian community because of their international achievements.  It is a visa for someone who is internationally recognised as a leader in their particular field, in this case, female (natural) bodybuilding.

10. Policy states, given the ordinary dictionary meanings, that in order to have a 'record of exceptional and outstanding achievement' an applicant would be expected to have achievements remarkable in relation to their field and in relation to their peers who are also positioned as the very best in that field.  The Tribunal has had regard to Departmental policy when considering the relevant facts and matters in this case.

11. The applicant gave evidence that she was born in Brazil and as a child started modelling when she was eight years of age.  By 18 she was a professional dancer.  She studied a Bachelor degree in Physical Education and Sports Science and commenced a career as a dancer, fitness instructor and personal trainer in Brazil.  In 2009, the applicant came to Australia as a student, to study English, and went on to study fitness, massage and sports coaching at certificate and diploma level.

12. In 2014, the applicant took up bodybuilding and joined Australasian Natural Bodybuilding (ANB).  In her first competition, after only a shortened period of training, she finished Top 10 and was secured as a model for by Oxygen Magazine, a magazine featuring and promoting women's fitness, strength training, performance and nutrition.  In 2014, the applicant also considered joining the International Federation of Bodybuilding and Fitness (IFBB) but says that there is still widespread use of steroids and other performance enhancing drugs because contestants are largely not drug tested at main contests, such as the IFBB’s Mr and Ms Olympia, and that this means that fairness across a field of contestants is often compromised.  The applicant is committed to not just bodybuilding as a sport, but also to body health.  She chose to go with the ANB, rather than the IFBB, and said it was because ANB was aligned with her ethics of health and a desire to build her body in a natural way. 

13. The applicant resides in Australia and over the last five years has competed in 20 bodybuilding competitions, about half of which were international competitions.  It is generally accepted in the sport that there are two seasons for bodybuilding, season A in April/May, and season B in September/October.  The athletes need time in between to train and manage diet and nutrition to be in peak condition to compete in each season.

14. From 2014-2019 the applicant competed in state, national and international qualifier events in Australia and in international events in the Philippines, Canada, South America and the USA.  Before 2018, and for the reasons already given, the applicant had not participated in IFBB competitions.

15. A witness at the hearing, Philip Lehner, has been involved in bodybuilding at a high level for over 25 years.  He was asked to give a brief overview of what has changed since the 1990s.  He said that in the 1990s there were only two federations, the IFBB and the National Amateur Body-Builders Association (NABBA).  It was in the 1990s, that the use of performance enhancing substances, which anecdotally was fairly widespread, became a newsworthy issue.  Since then more federations have started, many of which adhere to principles of ‘natural’ bodybuilding and they enforce strict testing for performance enhancing substances at their competitions, including their main competitions.  So while the IFBB, which was holds the Mr and Ms Olympia competitions, made famous by Arnold Schwarzenegger, is still one of the premier events, there are many more federations and competitions now and at any one time many world champions across many federations and disciplines. 

16. The applicant joined the ANB and competed in ANB and Ultimate Fitness Events (UFE) competitions from 2014 to 2019.  In 2018, because of her visa refusal and to address the delegate’s concerns, the applicant decided to join the IFBB even though she otherwise had no intention to do so at the time.  The ANB (Australasia) and UFE (USA and Canada) are, up to the end of 2019, affiliated for the purpose of enabling bodybuilders to compete in their respective international competitions.  In 2020, the affiliation will switch from the ANB/UFE to ANB and Natural Bodybuilding Australia (NBA). 

17. The applicant placed first and was the world champion at the UFE World Championships in Toronto in 2017 and 2018, and was Miss Universe International at the 2017 ANB competition in the Philippines.  She placed top 3 at the UFE World Championships in Toronto from 2014 to 2018, and top 3 in many other international competitions.

18. After receiving the notification and decision to refuse her visa, in which it was stated, essentially, that because she had not competed in IFBB events including as a finalist in Ms Olympia, Ms International, Fitness Olympia, Figure Olympia and local, national, regional, continental or World Championship competitions, she was not considered to be eminent in the top echelons of the field, the applicant joined the IFBB and entered some of their competitions. 

19. Notwithstanding the switch from the ANB/UFE federation competitions, where the applicant had placed in the top 3 on many competitions and had twice been world champion and was at the top echelons of her sport, she still managed to place second in her first IFBB competition in 2018 and third at Arnold’s Australian Qualifier and Arnold’s South America in Brazil in 2019.  In the Tribunal’s view, the applicant has disadvantaged herself unfairly by trying to satisfy the Department that she can compete at a high level in the IFBB competitions, which is not necessary to be at the top echelons of bodybuilding as it is not the only professional international federation anymore.  It is only speculation no the Tribunal’s part, but if the applicant had continued to compete in the ANB/UFE competitions where she was at the top echelons of her field, it is very reasonable to think that she would have continued to take out top 3 positions in the ANB/UFE international competitions.  The applicant brought evidence to the hearing including a large number of medals she has won and pictures of her trophies, which are detailed in her written submissions.

20. A deeper look into the bodybuilding world of federations and international competitions was required to gain a better understanding of what it means to be at the top echelons of the field, for example a world champion.  This exercise was undertaken at the Tribunal hearing by obtaining information from the applicant and her witnesses.

21. In the 1980s, for example, it might have been reasonable to expect that the Ms Olympia World Champion would have competed in the IFBB competitions.  In 2019, the Tribunal’s view is that this no longer the case and hasn’t been for some time.  There are many more federations, it is a much bigger sport with larger numbers of competitors in many countries, and there is a growing interest in natural bodybuilding which to some degree has contributed to there now being the possibility of reaching the top echelons of the sport without competing in IFBB competitions.

22. The visa was refused because the delegate was not satisfied that the applicant met cl.858.212.  The Tribunal needs to be satisfied that the applicant meets the requirements of cl.858.212 at the time of application and may take into account other information up to the time of decision.

    Does the applicant have an internationally recognised record of exceptional and outstanding achievement in the field of sport?

23. The Tribunal has carefully considered relevant documentary and other evidence and discussed in detail with the applicant and her witnesses the history and current state of play in international bodybuilding and the applicant’s record as a bodybuilder. 

24. For the reasons given above, relating to the applicant’s internationally recognised record of exceptional and outstanding achievement in women’s (natural) bodybuilding, the Tribunal is satisfied that the applicant meets cl.858.211(2)(a)(iii).

    Is the applicant still prominent in the area?

25. The Tribunal gives significant weight to the applicant’s achievements in 2017 and 2018, when she was unarguably at the top echelons of her field and in relation to her peers, or fellow competitors.  In 2017 and 2018, the applicant placed first and was world champion at the UFE World Championships in Canada in 2017 and 2018 and placed first and made Miss Universe International at the ANB competition in the Philippines in 2017. 

26. The applicant trains with an international coach, Michael Oddo, who coached the Ms Olympia Bikini athlete who won the IFBB competition in 2017 and 2018, indicating that the applicant is not winding down any time soon. 

    The Tribunal is satisfied that the applicant is still prominent in the area and is satisfied that the applicant meets cl.858.212(2)(b).

    Would the applicant be an asset to the Australian community?

27. The applicant and her witness, Jessica D’Arienzo, gave evidence that the applicant works for Let’s Do It Fitness.  Jessica is a client who participates in the applicant’s sessions held in Jarvie Park in Marrickville, Sydney.  Others in the group provided a joint character reference, dated 25 November 2019.  They say that the applicant works with women from diverse backgrounds and, among other highly complimentary things, that she ‘has made a remarkable contribution to our community’. 

28. The applicant provided the Tribunal with evidence that she works at the Eastern Suburbs Private Hospital as a Therapy Aide with physiotherapists and their patients, sharing her expertise and knowledge in exercise physiology and fitness.  A reference from Dr Fulop, Director of Medical Services, dated 28 November 2019, was provided attesting to the applicant’s knowledge, expertise and ability to impart her knowledge to the patients.  The applicant provided the Tribunal with many written references which indicate that she contributes enthusiastically to the Australian community in meaningful ways. 

29. The Tribunal is satisfied that the applicant will be an asset to the Australian community and she therefore meets cl. 858.211(2)(c).

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

30. The applicant has provided evidence that satisfies the Tribunal that she is employed and valued highly by her employers, clients and patients at Let’s Do It Fitness and the Eastern Suburbs Private Hospital.  The applicant is an energetic and highly motivated person and the Tribunal has no doubt that she will be able to obtain employment or become established independently in Australia with her skills, qualifications and work experience.

31. The Tribunal is satisfied that the applicant meets cl.858.211(2)(d).

    Has the applicant provided an appropriate Form 1000?

32. A Form 1000 was provided with the visa application and is on the Department file at folio 85.  In the Form 1000 it is indicated that the nominating organisation is Australasian Natural Bodybuilding Association which the Tribunal is satisfied is an Australian organisation with a national reputation in relation to the area of bodybuilding.

33. Subclause 858.212(2)(e) requires that an applicant should be of ‘exceptional benefit’ if they are less than 18 or more than 55 years of age.  The applicant is 38 years of age and this subclause is not applicable.

    Conclusion

34. For the reasons given, the Tribunal finds that the applicant meets cl.858.212(2), which is a prescribed criterion for the grant of Subclass 858 visa.  The matter is remitted to the Department for reconsideration.

    DECISION

35. 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 for a subclass 858 (Distinguished Talent) visa:

    ·cl.858.212 of Schedule to the Regulations

    Jennifer Cripps Watts
    Member