Sterling (Migration)

[2020] AATA 4545

Sterling (Migration) [2020] AATA 4545 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Joanna Kaitlin Sterling

VISA APPLICANT:  Mr Brenno Mendonca Francioli

CASE NUMBER:  1813366

DIBP REFERENCE(S):  BCC2017/3097150

MEMBER:Ian Berry

DATE:21 October 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Distinguished Talent (Class AL) (Subclass 124) visa, with the direction that the visa applicant meets the following criteria for a Distinguished Talent (Migrant)(Class AL) visa:

·Cl.124.211 of Schedule 2 to the Regulations.

Statement made on 21 October 2020 at 3:36pm

CATCHWORDS
MIGRATION – Distinguished Talent (Migrant) (Class AL) visa – Subclass 124 (Distinguished Talent) – success in the international sport of windsurfing – ‘junior’ level competitions – measured against athletes who are in the top echelons of the field, regardless of age – asset to the Australian windsurfing community – current prominence in the field – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 124.211

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 26 March 2018 to refuse to grant the visa applicant a Distinguished Talent (Migrant) (Class AL) Subclass 124 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 August 2017. The delegate refused to grant the visa on the basis that the visa applicant as a windsurfing competitor who has achieved success in windsurfing competitions only as a junior competitor in the championships set out in this decision. 

3. The review applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The Tribunal received oral evidence from the review applicant Ms Joanna Sterling (review applicant) and the visa applicant: The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

4. The review applicant and visa applicant were both represented in the review by their registered migration agent Mr Troy Sanders of Troy Migration, MARN 0319666. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria in cl. 124.211(1) where the applicant must satisfy cl124.211(2) or (4).

7. Relevant and material facts

8. The applicant is a Brazilian citizen born in 1997. At the time of his applicant, the applicant was aged 20 years.

9. The applicant has achieved success in the international sport of windsurfing and to a lesser extent, sailing. His accomplishments, awards and wins consist of the following:

   2014First place at RS:X in the under 19 South American Championship.

   2015First place at RS:X in the under 19 Brazilian Youth Worlds Qualifying event.

   2015 Second place at RS:X South America Windsurf Championship.

   2015Bronze Medal at RS:X in the under 19 ISAF Youth Sailing World Championship.

   2016First place at RE:X South America Championship.

   Documents relevant to the applicant’s sporting ability

10. In support of the applicant’s sporting abilities and achievements including his placements in both windsurfing and sailing, the applicant provided tournament details, references, placements and achievements (where appropriate with explanation) as detailed: -

    a.2011 Junior, Youth & Masters Windsurfing Worlds St. Francis Yacht Club were the applicant completed against competitors from other countries such as Brazil, Italy, Russia, Great Britain, Italy, USA, Peru, Mexico, Japan and Spain; the top competitor was from Italy achieving total points of 69 and net points of 15, with the applicant achieving 81 points with net points of 59. The competitor with the lowest number of points won the competition.

    b.Sporting summary which appears to have been issued by the organisation techno 293 and concerned the applicant’s participation in the South America Championship 2012 where the applicant is the undisputed winner of the Techno 293 fleet with a perfect score of 12. The championship which included 14 races where Brazilian Paulo Marcio A Silva took second place.

    c.2013 Techno 293 Oceanics – At Jimmys Beach, Hawks Nest. Final showing the applicant as first in the boys division[1] (under 17).

    [1] Tribunal file folio 4

    d.RS: X Techno Nationals 2013 Manly sailing club results of the final on 18 February 2013. The applicant was placed first having achieved wins and four races

    e.New Zealand National Championship 2013 editorial. The editorial complimented the applicant showing his true speed and tactical awareness to compete and win in unfamiliar waters. Confirmed that he is the current Brazilian and South American techno champ and had recently won the Australian nationals.

    f.Archive news of the International Windsurfing Association about the World Championships 2013 (posted 9 November 2013).

    g.2014 South American Championship, placing the applicant first for having raced nine races achieving three first places, four second places, one third place and one fifth place.

    h.45^th ISAF Youth Sailing World Championship 2015 (27 December 2015 to 3 January 2016) in at Langkawi, Malaysia, with the applicant achieving an overall third placing out of a field of 29 international representatives including France, Argentina, Netherlands, Mexico, Russia, Great Britain, Spain, Hong Kong, Poland, Italy, Turkey, Japan, China, USA, Korea, Australia, Norway, Portugal, New Zealand, Peru, Slovenia, Canada, Singapore and Denmark.

    i.Certificate of achievement 2016 . The certificate appears to be from the municipal chamber of Araruama (the place of residence of the applicant) giving a motion of applause to the applicant for his bronze medal achievement in the World Sailing Championship of the International Sailing Federation (ISAF) in Malaysia in January 2016. The certificate speaks of elevating the name of Araruama (the residents of the applicant) considered to be the windsurfing capital of Brazil.

    j.Certificate of the applicant’s sporting ability dated 14 June 2017.

    k.Newspaper article (Portuguese)

    l.Certificate of the applicant sporting ability dated 14 June 2017

    m.A Municipal Council motion of applause for the applicant dated 13 June 2017[2].

    [2] Tribunal file folio 22; translation 21 – 22

    n.Photograph of the applicant showing him with a trophy.

    o.Editorial and photograph of the applicant circulated 13 July, in the Araruama newspaper Circuito Araruama.

    p.Nautical club of Araruama to the Department of immigration and border protection dated 20 February 2017

    q.ISAF youth sailing world championship 2016 (in Australia).

    r.Reference to the Department of immigration and border protection from the Commodore of the nautical club of Araruama.

    s.Financial income reports for 2016 concerning the applicant.

    t.Statement of Assets and Rights (31 December 2015 – 31 December 2016)

    u.List of sporting places of the applicant at various events from 2010 to 2014.

    v.Applicants English test under TOEFL iBT.

    w.Reference and testimonial from Mr Bruce Kendall of Auckland New Zealand (twice Olympic sailing medallist – gold 1988 Bronze 1984 in windsurfing

    x.Submission by the Applicant to the Department of Immigration and Border Protection dated July 2017.

    y.Australian Sailing reference from chief executive officer Mr Matt Carroll windsurfing, supporting the applicant’s application for the grant of the 124 visa.

    z.Statement of support of Ms Joanna K Sterling dated 10 January 2017. Ms Sterling confirms the applicant having achieved a number of impressive results including the Brazilian National Championships and large international events. Winning the Oceanic Continental Championships and the New Zealand National Championships as well as other international events.

    Form 1000

11. The review applicant nominated the visa applicant. She represented Australia at the 2009 and 2010 ISAF Youth Worlds before commencing and Olympic campaign for the 2016 Olympic Games.  The review applicant has been the Australian national champion since 2013 and has achieved a number of high-level international results with the current world ranking in the top 20.

12. The review applicant speaks of the visa applicant in the following terms: -

    “Brenno has proven himself as a talented RS: X sailor with a number of impressive results including 2013 Oceanic champion, New Zealand National Champion, 5^th Junior Worlds, 2016 South American Champion, 2015 – 2^nd South American championship, 3^rd ISAF Youth Worlds.  Of the visa applicant states that he is a committed and hard-working athlete who would be an asset to the community.  Australia needs substantial development in the Olympic windsurfing class.  The review applicant speaks of there being no representative at the 2016 games.  The review applicant can help change this by mentoring younger athletes and training with senior athletes.

13. The delegate noted the visa applicant’s age at the time of making his application, was 20 years. Except for visa applicants who are aged under 18 years or of at least 55 years of age at the time of application, there is no delineation in either the Regulations or policy for those aged from 18 years to 54 years. Therefore, the claims and achievements of the visa applicant must be measured against those athletes who are considered in the top echelons of the field, regardless of age.

14. The visa applicant must meet the requirements of both cl.124.211(2) or (4).  Clause 124.211(2) and (4) are defined as follows: -

    124.211(2)

    (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:

    (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 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.

    (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.

15. Both Australia and New Zealand have fledging sports persons in the field windsurfing and is some distance from the heated competition in both the Americas and Europe.  From the visa applicant’s record, it would not be difficult to understand that he would add to such’s fledgling international sport.

    His visa application tests to the visa applicant coming to Australia with $100,000 (Australian).  He is an ambassador for both his city and country attested by the accolades he has received from city and country officials translated copies of which have been provided to the Tribunal.  Owing to his youth, he would be an asset to the Australian windsurfing community.  At the time of his application it was not a committed relationship and would have the versatility in been able to travel to and around Australia to give advice to both younger and senior Australian windsurfers.

16. The visa applicant was still prominent in the area of windsurfing at the time of this application.  The Tribunal received the ISAF World Sailing Rankings Progression as at 11 December 2019 (from 15 December 2014 to 11 December 2019). At 15December 2014 the visa applicant was ranked 235. As at 29 January 2018, his best result was a ranking of 82. The sailing biography concerning World Rankings for the Men’s RS:X attained a current ranking of 101, with his best ranking at 17 August 2018 was 52.

17. Mr Matt Carroll AM, the Chief Executive Officer of Australian sailing had this to say about the visa applicant : -

    ‘Australian Sailing is the national sporting organisation for sailing in Australia.  Our High Performance arm is in charge of this trail and stayed in squad and team, which includes our Olympic and paralympic sailors.

    Australian sailing supports the application of [applicant] for the Distinguished Talent Visa (subclass 124).  With this application we have provided Brenno’s ‘sporting curriculum vitae’ which outlines his international and national success in windsurfing.  Brenno has proven his capabilities through a number of years of sustained success in events around the world including world championships and other international events.

    Windsurfing is an Olympic sport and within Australia it requires development to increase its overall participation and to improve the quality of its athletes.  If Brenno were to have his application approved he will be helping to train our current windsurfing athletes and his assistance and expertise will be of an immeasurable benefit to these athletes.  His presence, expertise and talent will help to improve the quality of windsurfing athletes throughout Australia.

    Brenno has affirmed his desire to obtain Australian citizenship and to represent Australia in international windsurfing events including at the Olympic level.  With his young age and his high-quality technical skills he will help Australia improve at the international level as well as be a good role model to help promote the sport of windsurfing nationally.

    Australian Sailing hopes that this support letter is well received and that the Australian government will see the benefit of accepting Brenno’s visa application will have to windsurfing in Australia.’  Go to sleep

18. The visa applicant has expressed his desire to live in Australia: -

    ‘I have sailed since I was 10 years old.  I accomplished a beautiful and successful athlete life and today, besides all the trainings and competitions, I divide my training routine with my job, teaching kids and adults how to sail.  Since 2011, I am also part of a program called “Bolsa Atleta” (it is a program destined to financially assist athletes that have achieved international results within the first three positions) with an approximate value of (Australian) $740 per month.  In addition, due to all my effort and results, I am extremely happy that in 1917, I received from an educational institution my 1^st sponsorship contract, which will provide financial support for me during my Olympic campaign to the next Olympic Games in Tokyo.  Moreover, I started my undergraduate studies in Environmental Sciences at the Federal Fluminense University.

    As a Brazilian Professional Sailor and member of the Brazilian Olympic Sailing Team, I have clear goals to my future: to participate at the Olympic Games in Tokyo, in 2020, and to live in Australia, where I could pass forward my sailing expertise to younger generations of sailors.  In the long term, I intend to work in the Environmental Sciences field, helping to correctly maintain environmental standards.’

19. The New Zealand windsurfer Mr Bruce Kendall provided a reference concerning the visa applicant:-

    I am writing to you in support of Brenno’s Distinguished Talented Visa Application.

    I am a two times Olympic sailing Medallist, winning gold in 1988 & bronze in 1984 in windsurfing.  I retired from competition in 2000 while still ranked in the top 10 in the world.  Since 2000 my main occupation has been coaching sailing & windsurfing teams from all over the world to Olympic medal winning levels.

    I had the opportunity to meet Brenno Mendonca Francioli in New Zealand at the 2013 windsurfing national championships where he won the Techno 293 class event - which is the top junior & youth class.  Leading up to the 2016 Olympic Games, I had many trips to the Olympic site in Rio and a lot of contact with Brenno M.  Francioli & coached him for some time in Brazil.

    Do you to his good abilities & personality, I invited him to Palermo, Italy in 2015 to be a training partner for Lillian De Geus (4^th place at the 2016 Olympic Games) and Marina Alabau (2012 Olympic gold medallist).  wikipedia.org/wiki/Marina_Alabau.

    Brenno is 7 times Brazilian champion, 4 times South American champion and was 3^rd place at the 2015 world Sailing Use World championships.

    isafyouthworlds.com/results/2015 langkawi malaysia.php

    Brenno Mendonca Francioli’s exceptional dedication to training has bought him outstanding results in windsurfing considering his low levels of financial support & coaching.  His results are tagged internationally as excellent steps towards being a strong competitor at future Olympic games.

    His good & helpful character combined with his reliable self-motivated work ethic at such a young age bode well for his future endeavours & I hope you are able to support him in his quest

    Sincerely

    Bruce Kendall

20. Clause 124.211(4) is not a consideration for this Tribunal as no evidence was placed before it.

    DECISION

21. The Tribunal remits the application for a Distinguished Talent (Class AL) (Subclass 124) visa, with the direction that the visa applicant meets the following criteria for a Distinguished Talent (Migrant)(Class AL) visa:

    ·Cl.124.211 of Schedule 2 to the Regulations.

    Ian Berry
    Member