RACO (Migration)

[2022] AATA 4454

RACO (Migration) [2022] AATA 4454 (4 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Inoke RACO

CASE NUMBER:  1913633

HOME AFFAIRS REFERENCE(S):          BCC2019/2003217

MEMBER:Katie Malyon

DATE:4 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 04 October 2022 at 5:45 pm

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Elite player, coach, instructor or adjudicator stream – formal contract with sponsor – Tullibigeal Lake Cargelligo United Rugby Football Club – letter of endorsement – national sporting body – Australian Rugby League Limited (NRL) – ‘the ability to play at the Australian national level’ – appropriateness for Ministerial referral – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), 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 14 May 2019 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Fijian national Mr Inoke Raco, applied for the visa on 19 April 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 (Cth) (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. These include the requirements in cl 408.222(3) for an applicant who is an ‘Elite player, coach, instructor or adjudicator’. Relevant criteria from the Regulations referred to in this decision are extracted in the Attachment.

3. The delegate refused to grant the visa on the basis that Mr Raco did not satisfy two of the criteria in cl 408.222(3) of Schedule 2 to the Regulations. This is because Mr Raco did not provide a letter of endorsement from the relevant national sporting body - the Australian Rugby League Limited (the NRL) - as required by cl 408.222(3)(b) and, further, he also did not provide evidence of having entered into a formal contract with his sponsor - the Tullibigeal Lake Cargelligo United Rugby Football Club Inc (the Tullibigeal Club) - as required by cl 408.222(3)(c). Since Mr Raco did not provide either of these documents to the Department, the delegate found he did not meet cl 408.222(3) and cl 408.219A of Schedule 2 to the Regulations. A copy of the delegate’s decision was provided to the Tribunal.

4. In passing, the Tribunal notes that review of the Department’s file indicates that the delegate did not, consistent with s 56 of the Act, invite Mr Raco to provide a letter of endorsement from NRL and a formal contract with the Tullibigeal Club prior to making the decision to refuse Mr Raco’s Subclass 408 visa application.

   Background and documentation lodged prior to the hearing

5. In his Subclass 408 visa application, Mr Raco states that he intends to fill the position of ‘Footballer’ with the Tullibigeal Club. 

6. Accompanying its hearing invitation, the Tribunal requested Mr Raco provide evidence which addresses the delegate’s reasons for refusing his visa application.  In response, Mr Raco provided a signed Standard Playing Agreement made between the Tullibigeal Club and Mr Raco dated 7 June 2022 (the Agreement).  The Agreement confirms Mr Raco is engaged to play rugby league with the Tullibigeal Club between 7 June 2022 and 31 December 2022.  Departmental records confirm that the Tullibigeal Club is an approved temporary activities sponsor and that its current sponsorship is valid to 29 April 2024.

7. Further, Mr Raco provided a signed letter of endorsement from the NRL’s Salary Cap Auditor, Mathew Faulkner, dated 2 September 2022 confirming that Mr Raco is supported by the NRL to play for the Tullibigeal Club for the 2022 and 2023 seasons (the NRL Letter).  The letter confirms that Mr Raco has ‘the ability to compete at a senior level of Rugby League in Australia’ and ‘will be of benefit to the on-going development of the sport of Rugby League in Australia’.

8. Also provided prior to the hearing was an email from Mr Raco’s de facto partner, Ms Palu Telefoni, dated 1 September 2022 confirming that the couple have been living together since 13 June 2020 and that Mr Raco is the father her son Emmanuel Matthew Raco who was born at Wagga Wagga Hospital on 27 October 2021.  Mr Raco provided the Tribunal with a copy of his son’s NSW Birth Certificate.  The Birth Certificate indicates that Ms Telefoni was born in Takapuna, New Zealand.

   Hearing

9. Mr Raco appeared before the Tribunal on 16 September 2022 by way of MS Teams videoconference to give evidence and present arguments.  The Tribunal also received oral evidence from Paul McConnachie, the current President of the Tullibigeal Club.  In addition, oral evidence was provided by Julie Twomey and Shellie Lawlor, both of whom work with the Tullibigeal Club.  Evidence discussed during the hearing is outlined below.  

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. The Tribunal has also considered whether this is an appropriate case for it to refer to the Minister pursuant to s 351 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether a clause in Subdivision 408.22 of Schedule 2 to the Regulations applies to the visa applicant Mr Raco as required by cl 408.219A of Schedule 2 to the Regulations.

12. There are various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations which represent alternative pathways for grant of a Subclass 408 visa. Mr Raco is seeking to satisfy the ‘Elite player, coach, instructor or adjudicator’ requirements in cl 408.222(3). He has not claimed to meet the ‘Sports trainee’ requirements in cl 408.222(2), or any of the alternative clauses in Subdivision 408.22.

    ‘Elite player, coach, instructor or adjudicator’ requirements: cl 408.222(3)

13. By way of summary and relevant to the circumstances of this case, cl 408.222(3) provides that the applicant: seeks to remain in Australia as a player; has been invited to participate as a player by a sporting organisation that is lawfully operating in Australia and which is an approved temporary activities sponsor; has entered into a formal agreement with the sporting organisation for a specified period; and, has provided 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 at the Australian national level.

14. As noted above, Mr Raco provided the Tribunal with the Agreement signed by both himself and the Tullibigeal Club. In the circumstances, the Tribunal finds that he meets the requirements in cl 408.222(3)(c) of Schedule 2 to the Regulations of having entered into a formal contract with his sponsor the Tullibigeal Club.

15. Clause 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 at the Australian national level (emphasis added).  The Tribunal is satisfied that the NRL is the national sporting body responsible for administering the sport of Rugby League in Australia.[1]  It is included in the Australian Sports Directory which contains details of all national sporting organisations.[2]

    [1] The official website of the National Rugby League | NRL.com

    [2] Australian Sports Directory | Sport Australia

16. As noted above, one of the reasons the delegate refused Mr Raco’s Subclass 408 visa application was because he had not provided the necessary letter of endorsement from the NRL.  Prior to the hearing, Mr Raco provided the NRL Letter to the Tribunal. 

17. During the hearing, the Tribunal noted that Departmental records confirm Mr Raco had most recently arrived in Australia as the holder of a Subclass 408 visa sponsored by the Tullibigeal Club.  He was granted a Subclass 408 visa on 19 March 2019 which was valid for just one month.  Mr Raco confirmed he lodged his second Subclass 408 visa on the day that his first Subclass 408 visa was due to expire, that is, on 19 April 2019.   

18. To facilitate grant of Mr Raco’s former Subclass 408 visa, the Tribunal noted that the Tullibigeal Club would have had to provide the Department with the necessary letter of endorsement from the NRL certifying that Mr Raco has the ability to play at the Australian national level.  Mr Raco and Mr McConnachie acknowledged the Tribunal’s comments in this regard.  Mr McConnachie said that it was his predecessor, the former President of the club Colin Ward, who had assisted both the Tullibigeal Club and Mr Raco ensure that criteria for approval of Mr Raco’s former Subclass 408 visa were met. 

19. The Tribunal observed that the NRL Letter is deficient since it states that Mr Raco has the ‘ability to compete at a senior level of Rugby League in Australia’ (emphasis added): it does not state, as required by cl 408.222(3)(d) of Schedule 2 to the Regulations, that Mr Raco has ‘the ability to play … at the Australian national level’. The Tribunal noted that it has no evidence before it that Mr Raco has the ability to play at the Australian national level.  Mr Raco, Mr McConnachie and Ms Twomey requested the Tribunal provide additional time in which to obtain another letter from the NRL to confirm that Mr Raco does have this ability.  Ms Twomey identified a number of people in Executive roles with the NRL who she could approach in this regard.  She requested another 10 days to secure the necessary letter of endorsement.  The Tribunal afforded the Tullibigeal Club and Mr Raco a further 2 weeks after the hearing to provide the necessary letter from the NRL, that is, on or before 30 September 2022. 

20. Despite affording the Tullibigeal Club and Mr Raco additional time in which to provide the necessary letter of endorsement which corrects the acknowledged shortcoming in the NRL Letter, no further letter has been provided. 

21. Having regard to available information, the Tribunal finds that it has not been provided with a letter of endorsement from the NRL certifying that Mr Raco has the ability to play rugby league at the Australian national level. In the circumstances, cl 408.222(3)(d) of Schedule 2 to the Regulations is not met.

22. For the reason outlined above, the Tribunal is not satisfied that the requirements of

    
    

    cl 408.222 are met and, consequently, the requirement in cl 408.219A of Schedule 2 to the Regulations is also not met. Since the requirements that must be met by a person seeking a Subclass 408 visa have not been met, the Tribunal finds that the decision under review must be affirmed.

    Is this an appropriate case to refer to the Minister?

23. Having found that the delegate’s decision must be affirmed because Mr Raco does not meet cl 408.222(3) and cl 408.219A of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case for it to refer to the Minister. Consistent with s 351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so.

24. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of the power under s 351 of the Act, nor is there any statutory power vested in the Tribunal to make a binding recommendation in this regard. The power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether s/he is requested to do so by the applicant, or any other person, or in any other circumstances.

25. The Minister has issued Guidelines explaining the circumstances in which s/he may wish to consider exercising the public interest powers under s 351 of the Act.[3]  The Guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  The Minister’s Guidelines also set out circumstances where it is inappropriate for the Tribunal to consider referral of a matter to the Minister, none of which appear to apply in this case. 

    [3] >

    Relevant to the circumstances of this case, the Tribunal has established that Mr Raco’s de facto partner Ms Telefoni is a New Zealand national who has lived in Australia for more than 5 years as the holder of multiple Subclass 444 visas. No evidence has been provided to the Tribunal that Ms Telefoni is in ‘eligible New Zealand citizen’ as that term is defined in r 1.03 of the Regulations. As such, there is no evidence to confirm that she would be able to sponsor Mr Raco on a Subclass 820 Partner visa application. As such, should Mr Raco wish to remain in Australia with his de facto partner and son, it would be necessary for him to leave Australia and apply offshore for a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa as he is barred by s 48 of the Act from applying for another visa whilst remaining in Australia. During the course of the hearing, the Tribunal recommended that Mr Raco and the Tullibigeal Club obtain professional advice regarding Mr Raco’s visa options to remain in Australia.

26. No information has been provided by Mr Raco, Ms Telefoni or the Tullibigeal Club to engage the Tribunal’s consideration of referral of this matter pursuant to s 351 of the Act. In the circumstances, the Tribunal has decided not to refer this matter to the Minister.

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Subclass 408 – Temporary Activity
    ….

    408.21 Common criteria
    …

    408.219A   A clause in Subdivision 408.22 applies to the applicant.

    408.22 Alternative criteria

    Note: A clause in this Subdivision must apply to the applicant in order for the applicant to satisfy the primary criterion in clause 408.219A.

    ….

    408.222  (1)  This clause applies to the applicant if subclause (2) or (3) applies to the applicant.
    
    

    (2)  Sports trainee  This subclause applies to the applicant if:

    (a)  the applicant seeks to enter or remain in Australia to participate in sport by being trained by a sporting organisation (the relevant sporting organisation ) that is lawfully operating in Australia; and
    (b)  the applicant is a sportsperson or adjudicator who:

    (i)  is currently competing or adjudicating at the Australian national level, or equivalent; or
    (ii)  is endorsed by the relevant peak sporting body in Australia or overseas as having the demonstrated potential to compete or adjudicate at the Australian national level, or equivalent; and

    (c)  the relevant sporting organisation has an international reputation for training elite sportspeople or adjudicators; and
    (d)  the relevant sporting organisation is not a sporting club that, as its primary activity, competes in sporting competitions below the Australian national level for the sport; and
    (e)  either:

    (i)  the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
    (ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months--the relevant sporting organisation passes the support test in relation to the applicant.
    
    

    (3)  Elite player, coach, instructor or adjudicator  This subclause applies to the applicant if:

    (a)  the applicant seeks to enter or remain in Australia to be a player, a coach, an instructor or an adjudicator in relation to an Australian sporting team or sporting organisation; and
    (b)  the applicant has been invited to participate in the activity referred to in paragraph (a) by a sporting organisation (the relevant sporting organisation ) that is lawfully operating in Australia; and
    (c)  the applicant has entered into a formal arrangement that provides for the applicant to participate in the activity referred to in paragraph (a) for a period specified in the arrangement; and
    (d)  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; and
    (e)  either:

    (i)  the relevant sporting organisation is a temporary activities sponsor, or a long stay activity sponsor, and passes the sponsorship test in relation to the applicant; or
    (ii)  if the applicant was outside Australia when the application was made, and stated on the application form that the proposed length of stay did not exceed 3 months--the relevant sporting organisation passes the support test in relation to the applicant.

    oOOo