Son (Migration)

[2020] AATA 5894

Son (Migration) [2020] AATA 5894 (22 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hyojin Son

CASE NUMBER:  1729790

DIBP REFERENCE(S):  BCC2017/2046159

MEMBER:John Cipolla

DATE:22 September 2020      

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the applicant meets the following criteria:

cl.858.212 of Schedule 2 to the Regulations.

Statement made on 22 September 2020 at 4.21pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – swimming coach – applicant’s various achievements and accolades – widespread recognition by peers in South Korea – ongoing prominence in the field – asset to the community – decision under review remitted

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

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 9 November 2017 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 June 2017. The delegate refused to grant the visa on 09 November 2017 on the basis that the applicant has not met clause 858.212 of Schedule 2 of the Migration Regulations. Clause 858.212(2)(a) requires that the applicant have an internationally recognised record of exceptional and outstanding achievement in their designated field.

3. Having recourse to the information available, the delegate noted that the applicant had 52 awards recognised by The President of Korea Swimming Federation as a professional swimmer, and was recognised as ‘Best Coach’ by Rally Co. Sports Pty Ltd in 2011 for outstanding coaching at the second Rally’s National Masters Swimming Championship. It was also observed that the applicant had attained a position as the Head Swimming Coach for Manjimup Marlin Swimming Club Inc. and that they had been sponsored by Swimming WA, who believed the applicant would be an asset to regional swimming in the state. It was deemed by the delegate that this record was not sufficient for the applicant to meet the requirements of 858.212(2)(a) for grant of the visa.

4. The applicant appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a number of witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether or not the applicant at time of application for the visa on 8 June 2017, had an internationally recognised record of exceptional and outstanding achievement in sport as a swimming coach.

8. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations).

9. In this context, the Tribunal has had regard to the relevant dictionary meanings.

10. The Tribunal has had regard to the Macquarie Dictionary Online, where 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. 3. 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.”

11. The Tribunal has also had regard to case law applicable to cl.858.212(2)(a). The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of 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 Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a “national living treasure”. The Tribunal also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity. The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.”  Therefore, Gaffar’s case, has limited application in the current context.  The Tribunal notes that whilst the applicant need not be a “national living treasure”, 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.

12. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425. The Tribunal notes the comments of Kieffel J at [49]-[50]:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary.  But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

13. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

14. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”.  The Tribunal further notes that the Departmental guidelines (Procedures Advice Manual 3, or PAM 3) state, inter alia, the following:

    applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

    …

    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 ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

    …

    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.

15. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.  Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the Regulations, the Tribunal is required to depart from it.  The Tribunal has taken into account the individual circumstances of the applicant.

16. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

17. The applicant is a national of South Korea and is a swimming coach. The applicant has been nominated by the Manjimup Marlin Swimming Club located in rural Western Australia.

18. The Tribunal has had regard to the evidence before it in order to determine whether the applicant at time of application had an internationally recognised record of exceptional and outstanding achievement as a performance artist, as required by cl.858.212(a).

19. The Tribunal is mindful of its obligation to consider all of the applicant’s various achievements and accolades as a swimming coach, and in assessing her record of achievement at the time of application.

20. At the review hearing the Tribunal took evidence from the applicant, [Ms A], a national of South Korea and a [permanent] visa applicant, Ms Amy Sarre, Secretary of the Manjimup Swimming Club and Peter Krispyn, Vice President of the Manjimup Swimming Club.

21. The Tribunal queried the applicant whether [Ms A] was a secondary visa applicant for the purposes of the application before it.  The applicant advised that she was not and advised that [Ms A] had an application before the Department for [permanent residency].

22. The applicant gave evidence about her immigration history in Australia.  The applicant advised that she first came to Australia as the holder of a Working Holiday visa valid for 12 months. The applicant stated that she worked in a remote area for three months, in Manjimup on a cauliflower farm.  The applicant then applied for a second Working Holiday visa, and before that visa expired, she made an application for a Subclass 858 visa.

23. The applicant advised that she heard about the Subclass 858 visa and thought that as she had expertise as a swimming coach, she may be able to apply for this visa.

24. The Tribunal asked the applicant whether she believed that the time will she applied for this visa, she had international record of exceptional and outstanding achievement as a swimming coach. The applicant advised that she had achieved 52 national awards in South Korea for swimming. The applicant stated that in order to extend your national profile, to an international profile as a swimmer you need to bribe officials, and that she did not have the financial capacity to do this. The applicant stated that based on her swimming times, she should have qualified for the Sydney 2000 Olympics in the 200 m breaststroke. The applicant advised that a swimmer who had a slower time than her, Hyo Jin Ko ended up representing South Korea at the Sydney 2000 Olympics.

25. Once again, the Tribunal asked the applicant what evidence you wish to rely on to satisfy the requirements of cl.858.212, namely why she had an internationally recognised record of exceptional and outstanding achievement in an area of sport, namely as a swimming coach. The applicant advised that she had achieved significant success as a swimming coach in South Korea and that she was awarded best swimming coach in 2011 in a field of around 150 coaches in South Korea.

26. The Tribunal asked the applicant whether she had ever swum at an international level, the applicant advised that she had not, but had achieved 52 domestic awards.

27. The Tribunal asked the applicant whether she had ever worked as a swimming coach at an international level.  The applicant advised that in 2008 she worked as a swimming coach in Toronto in Canada for the Toronto Swimming Club. The applicant stated that she was involved in training state-level champions specialising in breaststroke, but also coaching in all swimming strokes. The applicant stated that she was in Canada as the holder of a student visa.

28. The applicant advised that she had coached in South Korea and Australia and that in 2011 she was awarded Best Coach by Rally’s.

29. The applicant provided evidence about her swimming coaching in Western Australia in Manjimup a position she had held since November 2016. The applicant advised she coached an average of 16-20 hours per week and also undertook some coaching with the Department of Education since 2016. The applicant advised she was the only swimming coach in this part of Western Australia that had a university degree and had represented her own country in swimming. The applicant advised that she was proficient in training swimmers with a disability and had achieved considerable success with some of her swimmers, who were on their way to national competition when COVID 19 struck.  The applicant advised that some of the swimmers she had coached were due to represent Australia in an international competition in Malaysia in September 2020 but would not be able to attend due to COVID 19 restrictions. The applicant advised that some of the swimmers she had trained were poised for both national and international success. The applicant advised that she was currently undertaking studies to be licensed to coach at national level and had her bronze accreditation, but was working towards the attainment of gold accreditation.

30. The Tribunal took evidence from Ms Amy Sarre Secretary of the Manjimup Swimming Club.  The witness described herself as a colleague of the applicant. The witness advised that the applicant was known by her nickname ‘Sharky’. The witness advised that the swimming club was located in a remote rural location in Western Australia that it was difficult to attract coaches that the calibre of the applicant. The witness described the successes achieved by the applicant during her tenure as swimming coach. The witness described the applicant as being asset to the community. The Tribunal took evidence from Peter Krispyn Vice President of the swimming club who advised that the applicant was an asset to the club and the community as a swimming coach and had coached students to success at state level and prior to COVID 19 one student was selected for international competition.

31. The Tribunal noted that the applicant was unrepresented in these proceedings. The Tribunal reiterated the relevant legislative requirements for the grant of the visa, particularly those found in cl.858.212. The Tribunal advised the applicant that she would be given until 11 September 2020 to provide any additional evidence that she wanted the Tribunal to consider in the review before it. The hearing concluded.

32. The Tribunal received a post hearing submission form the applicant with a large number of annexures on 11 September 2020. The Tribunal has duly considered the submission and annexures.

33. The applicant made reference in these submissions to her cumulative international reputation as a swimming coach. The applicant noted that she coached a team in South Korea for the Rally’s National Masters Swimming Championships in 2011 and that on 5 June 2011 she was awarded coach of the meet from 150 national coaches involved in the event, an award that was bestowed on her on 5 June 2011.  The applicant advised that she coached at a number of swimming schools and clubs in South Korea from 2010 through to 2012. The applicant advised that she coached at the Toronto Swimming Club in Canada in 2008 whilst she was the holder of a student visa in that country.  The applicant provided evidence that in 2010 she coached the swimming team that represented South Korea at the Youth Olympics in Singapore.  The applicant, as advised at the review hearing, and in documentary evidence provided to the Department, and the Tribunal at review, has been coaching at the Manjimup Swimming Club in Western Australia since 2015.

34. The applicant advised at hearing that she was reliant on the submissions that had been made in support of the application. The key submissions included the following.

35. A submission from Mr Brendon Ward CEO of the Australian Swimming Coaches and Teachers Association dated 21 November 2017 which indicates the following about the applicant’s skill set and reputation as a swimming coach.

    I write to you in relation to a swimming coach located in Regional WA who has applied for the grant of a subclass 858 Distinguished Talent visa based on achievements in the field of Sport, specifically as a Swimming Coach.

    The Coach in question, Miss Hyojin Son, is a current member of ASCTA and is currently a Bronze level coach. Miss Son is also currently the Head Coach for the Manjimup Marlin Swimming Club in Manjimup Western Australia.

    As the peak accreditation and membership body for Swimming Teachers and Swimming Coaches in Australia we recognise the important influence coaches have on the level of achievement that swimmers attain. Coaches are fundamental to the past and future success of swimming throughout Australia and coaches of the calibre of Miss Son with her extensive swimming background and academic training are the key to the future international success of swimming in Australia.

    In the case of Miss Son, we recognised her international qualifications through a recognised prior learning application in 2016 and awarded her Bronze Level coaching accreditation. In Australia, there are three· levels of coaching accreditation.  Silver and Gold accreditation is  dependent on  a  coach qualifying a swimmer for National events. As Miss Son has not taken an Australian swimmer to National Championships, she was awarded the Bronze level, however while coaching in Korea, she coached National Level Swimmers and National Medallist's.

    Having reviewed the achievements and qualifications of Miss Son while she was in Korea ACSTA is of the opinion that she was an outstanding and highly qualified coach whose exceptional academic achievements would meet or exceed the academic requirements of our Silver level and possibly Gold level accreditation. While studying full time for 2 years Miss Son was the top student in her class of Social Physical Education, and this was done while she was still training and competing as a professional swimmer.

    This level of academic achievement would place Miss Son amongst the most academically qualified swimming coaches in Australia. Gold accreditation includes the top level of Coaches in Australia, which is a very select and exceptional group.

    In addition to her academic qualification Miss Son has achieved exceptional success both in the water as a swimmer and also, and most importantly, for her visa application in the field of Coaching. Her award for the "Best Coach" at the second Rally's National Masters Swimming Championship in 2011 was an amazing achievement as the event is a Korean National Swimming Championship comprising over 1000 competitors and over 150 Coaches. Miss Son was selected above all the other coaches at this event.

    Prior to coaching Miss Son was awarded the "Best Athlete of the Year Award" in 2006 as part of the Anyang City Hall Swimming Team. This team, according to Miss Son is the best professional swimming team in Korea. An award of this nature puts Miss Son in an elite group of professional athletes worldwide.

36. A number of statements, endorsements and affidavits from Korean coaches and from the Korean Swimming Association pertaining to the applicant’s skills and successes as a swimming coach were provided and have been duly considered.

1. A letter dated 7 May 2020 from Mr Darren Beazley of the Western Australian Swimming Association pertaining to the success of one of the applicant’s students being selected to represent Western Australia in an international swimming meeting in Malaysia in 2020 which had to be deferred due to COVID 19 and international travel restrictions.

2. A letter dated 24 November 2017 from Mr Andrew Campbell the CEO of the Manjimup Shire Council who attests to the invaluable contribution the applicant had made to the club in her role of swimming coach and had coached two Western Australian champions. Mr Campbell in his concluding comments in his submission notes that:

   Miss Son, according to her records has achieved outstanding success both in the water as a swimmer and as a Swimming Coach. Miss Son has received awards for coaching at the highest level of competition in Korea. This shows that she is an exemplary coach of the highest calibre. At a National Swimming competition Miss Son was awarded best coach above 150 other coaches, a truly exceptional effort.

   Miss Son has also gained international recognition of her achievements in coaching with the awarding of a Bronze coaching licence in Australia and is currently contributing to the betterment of our Australian community through her many hours of dedication per week training our future generations of potential champions. I urge you to reconsider the benefits that Miss Son provides to our community and find in favour of her visa application.

3. The Tribunal received endorsements of the applicant’s skills and reputation as a swimming coach from the following. Mr Paul Omodei the Manjimup Shire President dated 11 September 2018; the Honourable Mr Rick Wilson, Federal Member for O’Connor dated 20 March 2018 and Mr James Raymond, WA State President of the National Party of Australia dated 22 November 2017.

4. The applicant also provided a post hearing submission dated 8 September 2020 referring to a number of Tribunal decisions that support her merits review application. These cited cases have been duly considered.

5. The Tribunal has had regard to the evidence before it in order to determine whether the applicant at time of application had an internationally recognised record of exceptional and outstanding achievement as a swimming coach, as required by cl.858.212(a).

6. The Tribunal is mindful of its obligation to consider all of the applicant’s various achievements and accolades as a swimming coach and in assessing her record of achievement at the time of application. The Tribunal finds that there is sufficient evidence before it to find that at the time of visa application on 8 June 2017 the applicant had an internationally recognised record of exceptional and outstanding achievement as a swimming coach. The applicant had coached at an international level, in Canada and Singapore and had achieved considerable success as a coach in South Korea. The applicant also has widespread recognition of her peers in Korea as evidenced by the submissions made by them in support of the applicant’s reputation and achievements as a swimming coach. The applicant therefore does meet the requirements of cl.858.212(2)(a).

7. Clause 858.212(2)(b) requires that the applicant is still prominent in the area.

8. The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used.  The Macquarie Dictionary defines the word as meaning ‘important’; ‘leading’; ‘well-known’.

9. The evidence before the Tribunal indicates that the applicant is still prominent as a swimming coach.  The evidence provided by Mr Brendon Ward CEO of the Australian Swimming Coaches and teachers Association is compelling and provides a clear and unambiguous endorsement of the applicant’s prominence as a swimming coach at time of application and her international successes in this respect. 

10. Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.858.212(b).

11. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. Since her arrival in Australia the applicant has been involved in working as a swimming coach, obtaining her relevant coaching qualifications to meet Australian standards. The applicant has been endorsed and supported by a number of notable persons from the Manjimup and Western Australian community who note that the applicant’s role as a swimming coach has led to national success and has been a huge benefit to rural Western Australia. These endorsements indicate that the applicant is seen as a substantial asset to the rural community of Manjimup and to the success of swimming in Western Australia. The Tribunal is satisfied that cl.858.212(2)(c) was met at the time of application.

12. The Tribunal is satisfied that the evidence shows that at the time of application, the applicant was employed as a swimming coach at the Manjimup Swimming Club. Accordingly, the Tribunal is satisfied that cl.858.212(2)(d) is met.

13. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed Form 1000 was signed by the Manjimup Swimming Club. The evidence before the Tribunal indicates that the club has achieved national success and has had swimmers qualify for international competition. Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.

14. The Tribunal is satisfied that given the applicant’s age at the time of application that the provisions of cl.858.212(2)(f) do not apply to her.

15. As the applicant meets all of the requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

16. Given the above findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 858 visa.

    DECISION

17. 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:

    cl.858.212 of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member