MIRANDA MOSCOSO (Migration)

[2018] AATA 985

MIRANDA MOSCOSO (Migration) [2018] AATA 985 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JOHANS ALEXANDER MIRANDA MOSCOSO

CASE NUMBER:  1717968

DIBP REFERENCE(S):  BCC2016/3399410

MEMBER:Bridget Cullen

DATE:19 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the Applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 Visas.

Statement made on 19 February 2018 at 9:52am

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – Football (soccer) player – No internationally recognised record of exceptional and outstanding achievement – Christian Football Federation of Australia squad member – No participation at the A-league level through the Football Federation of Australia

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

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

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 31 July 2017 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 12 October 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations 1994 ('the Regulations'). In particular, the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement as a football (soccer) player.

3. The applicant applied to the Tribunal on 14 August 2017 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 applicant. It has also had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

4. The applicant appeared before the Tribunal on 15 February 2018 to give evidence and present arguments. The applicant was assisted by a NAATI Level 2 accredited interpreter in the Spanish and English languages.  The applicant confirmed that he understood the proceedings and the interpretation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and 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.

   [(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note]

   (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.

7. The applicant has not asserted that he has provided specialised assistance to the Australian government in matters of security at the time of application on 12 October 2016. Accordingly, the Tribunal finds that there is no evidence before it that the Minister responsible for an intelligence or security agency, or the Director-General of Security, has provided an opinion that the applicant had provided specialised assistance to the Australian government in matters of security at the time of application.

8. As a result, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.

9. 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 football (soccer).

10. 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.

11. According to the Macquarie Dictionary Online the word 'exceptional' is defined to mean:

    1. forming an exception or unusual instance; unusual; extraordinary;

    2. extraordinarily good, as of a performance or product; extraordinarily skilled, talented, or clever.

    It also defines the word 'outstanding' to mean:

    1. prominent; conspicuous; striking;

    2. that continues in existence; that remains unsettled, unpaid, etc.;

    3. standing out; projecting; detached;

    4. that resists or opposes.

12. The Tribunal also 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. In addition, the Tribunal observes that the departmental guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement:

    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 others 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' should be accorded ordinary dictionary meaning within context.

    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, 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 achievements in the arts including:

    o   books published and

    o   national and internationals sales achieved and

    o   awards and commissions received and

    o   galleries in which works are displayed and

    o   scale and audience of displays held and

    o   recognition by peers and

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

    o   academic qualifications associated with the applicant's area of the arts and

    o   statements from international artistic bodies and

    o   newspaper and magazine articles attesting to achievements.

    …

    ·Details and supporting material on professional achievements including:

    o   industry awards and accolades and

    o   references from current and past employers and

    o   statements from prominent industry peers and

    o   academic degrees or professional designations associated with the applicant's field of work and

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

17. 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.

18. The wording of paragraph 858.212(2)(a) requires the applicant currently before the Tribunal to have an 'internationally recognised' record of exceptional and outstanding achievement. The Tribunal notes that there is presently no Court authority in relation to what is required to meet this aspect of the criterion.

19. Therefore, giving the words 'international' and 'recognise' their ordinary meaning, it would be reasonable to say that a record is 'internationally recognised' if it has received some form of recognition in more than one country. The policy guidelines in PAM3 appear to reflect this when they state:

    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 Australia 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.

20. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations.

21. Whether or not an applicant's record of achievement is exceptional and outstanding, as well as internationally recognised, will be a question of fact to be determined in the individual case and, where appropriate, to the extent that policy is inconsistent with the Regulations, the Tribunal may depart from the departmental policy guidelines.

22. 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.

    THE APPLICANT'S BACKGROUND AS A FOOTBALL (SOCCER) PLAYER

23. The applicant is Chilean.  Since his arrival in Australia on a TU Subclass 570 Student Visa in 2010, he has played for several Queensland based clubs.  At the hearing, the applicant confirmed that these clubs included the Brisbane Athletic Football Club Inc., Latin Golden Boys Football Club, Acacia Ridge Football Club and the Western Spirit Football Club.

24. In 2016, the applicant participated, as a member of the Queensland squad, in the Christian Football Federation of Australia’s National Titles.  The competition involved state and territory teams from within the Christian Football Federation of Australia.  Additionally, a New Zealand Team from the Christian Football Federation of New Zealand participated in the same competition. 

25. The applicant’s participation in the Christian Football Federation’s National Titles resulted in his selection for the Christian Football Federation of Australia’s National Team, which will participate in the 2018 Christian Football Federation World Cup.

    FINDINGS AND REASONS

26. During the hearing, the Tribunal discussed with the applicant the standing of the Christian Football Federation as a governing body in Australia.  The applicant conceded that, although it is a governing body, it does not have the same status as Australia’s highest governing body, the Football Federation of Australia.  The applicant hopes that he will someday be able to play for Australia at this level, but acknowledges that he has not yet reached this level, despite his personally noteworthy achievements in football.

27. The applicant has not trialed or participated in any national level competitions at A-league level through the Football Federation of Australia.  The Tribunal considers that the Football Federation of Australia is representative of football’s (soccer) most elite athletes.  The Tribunal considers that the Christian Football Federation does not have the same status in football as the Football Federation of Australia.

28. For the reasons set out above, and having regard to what might reasonably be expected of someone who claims to have an 'internationally recognised record of exceptional and outstanding achievement' as a football (soccer) player, the Tribunal is not satisfied that the applicant's record has been 'out of the ordinary', 'exceptional', or 'outstanding'. It is also not satisfied on the evidence before it that the applicant's record of achievement has been 'internationally recognised', as required by paragraph 858.212(2)(a). In reaching this conclusion the Tribunal has considered the applicant's positive personal qualities and undoubted football talent, at an emerging level.

29. While potential is not irrelevant, the statutory test clearly calls for an internationally recognised record. It is not a visa designed to give those without a such a record an opportunity to establish one for the first time. The evidence before the Tribunal is in relation to the applicant’s participation within Australia, only.  There is no evidence about the applicant’s international recognition.

30. In determining whether the applicant meets regulation 858.212(2), all of the stated subclauses must be met. As the Tribunal considers that the applicant's achievements at the time of application do not meet the requirements of cl.858.212(2)(a) of Schedule 2 to the Regulations, he does not meet the requirements of cl.858.212(2) as a whole.

31. Since the applicant does not meet cl.858.212(2), and no evidence has been provided indicating that the applicant meets cl.858.212(4), the Tribunal finds that the applicant does not meet cl.858.212. The Tribunal must therefore affirm the decision under review.

    DECISION

32. The Tribunal affirms the decision not to grant the Applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 Visas.

    Bridget Cullen
    Member