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

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).
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.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MIRANDA MOSCOSO (Migration) [2018] AATA 985
Case: [2018] AATA 985
Decision Date: 19 February 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa made by Mirando Moscoso, a Chilean national and football (soccer) player. The applicant sought review of the decision to refuse his visa application, which was based on the applicant failing to meet the requirements of paragraph 858.212(2)(a) of the Migration Regulations 1994. This paragraph requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a specified field, such as sport.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in football (soccer). The Tribunal was required to assess the applicant's achievements against this criterion, considering the standing of the sporting organisations involved and the level of competition. The Tribunal also considered whether the applicant met the alternative requirements of subclause 858.212(4), which relates to providing specialised assistance to the Australian Government in matters of security.

The Tribunal reasoned that while the applicant had played for various Queensland-based clubs and participated in the Christian Football Federation of Australia's National Titles, this did not equate to an internationally recognised record of exceptional and outstanding achievement. The applicant conceded that the Christian Football Federation, while a governing body, did not hold the same status as Football Federation Australia, the nation's highest governing body. The Tribunal considered Football Federation Australia to represent the most elite athletes in the sport and found that the applicant had not participated at the A-League level through this organisation. Consequently, the Tribunal was not satisfied that the applicant's record was "out of the ordinary," "exceptional," or "outstanding," nor that it was "internationally recognised" as required. Furthermore, no evidence was presented to suggest the applicant met the requirements of subclause 858.212(4).

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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 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. 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. 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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; andNote 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. 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. As a result, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application. 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). 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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