Timoteo (Migration)

[2019] AATA 1293

Timoteo (Migration) [2019] AATA 1293 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Misioka Maluapapa Timoteo

CASE NUMBER:  1732233

DIBP REFERENCE(S):  BCC2016/2775326

MEMBER:K. Chapman

DATE:11 January 2019

PLACE OF DECISION:  Brisbane

DECISION: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 for a Subclass 858 visa:

·cl.858.212 of Schedule 2 to the Regulations.

Statement made on 11 January 2019 at 3:56pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – sport – professional rugby union player – internationally recognised record of exceptional and outstanding achievement – prominent in rugby union at time of visa application – asset to Australian community – employable – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212

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 29 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 Distinguished Talent Class BX visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in one of the following areas: a profession, a sport, the arts or academia and research, or have provided specialised assistance to the Australian Government in matters of security. In addition to having such an internationally recognised record, the person must be still prominent in the relevant area. They must also satisfy further requirements relating to being an asset to the Australian community, having no difficulty in obtaining employment or becoming established independently in Australia in the relevant area, and having an appropriate nomination for the visa.  

3. The applicant, Mr Misioka Maluapapa Timoteo, applied for the visa on 19 August 2016 on the basis that he had an internationally recognised record of achievement in the area of sport, specifically rugby union. The applicant is a national of Samoa and has represented his national side in international rugby union fixtures. He was nominated for the visa by Mr Timothy Atkinson (‘the nominator’) who is a rugby union coach and former representative rugby union player in the Australian Sevens side, the Queensland Reds and the ACT Brumbies.

4. The delegate refused to grant the visa on the basis that the applicant is not ‘still prominent’ in the area of rugby union, notwithstanding they accepted he had an internationally recognised record of exceptional and outstanding achievement in rugby union in the early part of his career. On 19 December 2017, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review.

5. On 30 October 2018, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting him to provide current information addressing the relevant criteria under cl.858.212(2) of Schedule 2 to the Regulations. In response the Tribunal received material including, but not limited to, letters of support from the nominator, the Chief Executive Officer of the Samoa Rugby Union Incorporated, the head coach of the Brisbane City National Rugby Championship (NRC) side, the head coach of the Wests Bulldogs Rugby Club and the coach of the South Darwin Rugby Union Club. All submitted material has been duly considered by the Tribunal.

6. The applicant appeared before the Tribunal on 11 January 2019 to give evidence and present arguments. 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 the applicant meets the requirements of cl.858.212. In particular, the Tribunal must carefully assess whether he is still prominent in the area of rugby union.  

8. Cl.858.212(1) provides that the applicant must satisfy the requirements of cl.858.212(2) or (4). Cl.858.212(4) requires that an applicant has provided specialised assistance to the Australian Government in matters of security. There is no claim made in this regard and that sub-clause is not relevant to the review.

9. Clause 858.212(2) requires that, at the time of application for the visa, 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

   (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.

10. The applicant applied for the visa on the basis of his record and achievements as a rugby union player. He was nominated, in a Form 1000 that accompanied his visa application, by Mr Timothy Atkinson (‘the nominator’). The applicant was over the age of 18 years and under the age of 55 years at the time of the visa application and therefore cl.858.212(f) is not relevant to the review. The Tribunal has carefully considered all relevant evidence, both documentary and oral, in assessing whether the applicant satisfies all of the requirements contained in cl.858.212(2).

    Exceptional and outstanding achievement in sport

11. As is relevant to the present matter, the applicant must have an internationally recognised record of exceptional and outstanding achievement in the sport of rugby union. Generally, the Tribunal needs to be satisfied that the applicant’s achievements are acclaimed in any country where the field is practised. The third party letters of support before the Tribunal indicate that the applicant has a distinguished background in the area of rugby union. Between 2006 and 2008 he represented Samoa at the Under 19 and Under 20 level. The applicant played for the national Samoan rugby union team between 2009 and 2014, which included tours to England, Scotland, Wales, Ireland, Italy, New Zealand, Japan, Fiji and Australia. He also played professional rugby in Ireland during 2014. The Tribunal accepts the veracity of the aforementioned documentary evidence. Additionally, the Tribunal notes that the Departmental delegate accepted the applicant had an internationally recognised record of exceptional and outstanding achievement in rugby union in the early part of his career.

12. The applicant gave oral evidence to the Tribunal which is consistent with the submitted third party letters of support. He outlined the particulars of his playing career for Samoa and also as a professional rugby union player in Ireland. The Tribunal accepts the veracity of the applicant’s oral evidence and is satisfied that the applicant has played rugby union at the international level. Indeed, open source information available on the internet confirms this to be the case. Following careful consideration of the evidence, the Tribunal finds that the applicant has an internationally recognised record of exceptional and outstanding achievement in rugby union and that he satisfies cl.858.212(2)(a).

    Still prominent in the area

13. The applicant must demonstrate that, at the time of the visa application, he ‘is still prominent in the area’ of rugby union. The word ‘prominent’ is not defined in the Regulations. However, referring to Departmental policy, ‘prominent’ should be accorded its ordinary dictionary meaning within context, with appropriate synonyms being ‘conspicuous’ and ‘important’. Departmental policy also considers that an applicant who has not been active at a high level in the relevant area for more than 2 years prior to the time of application would not be regarded as retaining prominence in that area. For the following reasons the Tribunal is satisfied that, at the time of application and currently, the applicant is still prominent in the area of rugby union.  

14. According to letters of support submitted to the Tribunal, the applicant most recently played for the Samoan national rugby union side in 2014, less than two years prior to the time of the visa application. Further, the letters of support indicate that the applicant played for the South Darwin Rugby Club in the 2016 season and assisted them to win the first grade premiership. The applicant was subsequently recruited to the Wests Bulldogs Rugby Club in Brisbane and in 2018 was selected for Brisbane City in the National Rugby Championship (NRC). The applicant informed the Tribunal in oral evidence that he received payment for playing in the NRC. According to the statement dated 23 November 2018 from Mr Mick Heenan, head coach of the Brisbane City side, the applicant is likely to play again for this side in 2019. The Tribunal notes that the NRC is a professional competition involving both domestic Australian sides and a representative side from Fiji.

15. The supporting statement dated 7 November 2018 of Mr Pat Byron, Head Coach of the Wests Bulldogs Rugby Club, indicates that the applicant has the potential to compete in the Super Rugby competition. Super Rugby is a professional competition encompassing teams from Australia, New Zealand, South Africa, Argentina and Japan. The applicant advised in oral evidence that he is currently precluded from selection in Super Rugby as there is a limitation placed upon international players (that is, non-domestic players) which would be lifted only if he acquires the status of a domestic player (that is upon satisfying the nationality criteria for that competition). The applicant explained that he is confident his skill level is such to be in contention for selection to play in the Super Rugby competition should the nationality restriction be lifted.

16. Mr Byron’s letter of support also notes that the applicant is performing a valuable role in mentoring younger players at the Wests Bulldogs Rugby Club and is developing his coaching skills. Mr Faleomavaega Vincent Fepuleai of the Samoa Rugby Union notes, in his letter of support dated 9 November 2018, that the applicant is pursuing his rugby career in Australia and is monitored by the Samoa Rugby Union for possible future selection in the national side.  

17. The Tribunal gives the word ‘prominent’ its ordinary English language dictionary meaning. Following careful consideration of the evidence, on balance, the Tribunal is satisfied that the applicant is still prominent in the area of rugby union and will remain so into the foreseeable future. Accordingly, the applicant satisfies cl.858.212(2)(b).

    Asset to the Australian community

18. An applicant for a Distinguished Talent visa must demonstrate that the granting of the visa will benefit the Australian community as a whole, not just the applicant and nominator.  ‘Asset’ does not only refer to economic benefit, it can also refer to social or cultural benefit.  The benefit must be national, not only local or regional.

19. The evidence before the Tribunal indicates that the applicant has mentored and assisted with the coaching of rugby union players in both Queensland and the Northern Territory. He is currently utilised in a coaching role for junior players at the Wests Bulldogs Rugby Club, in addition to playing in the top grade as a front row forward. The applicant told the Tribunal that the Wests Bulldogs Rugby Club is enhancing his coaching skills and has offered him a future coaching position. 

20. Given the applicant’s international experience in playing rugby union, the Tribunal is satisfied that he will raise Australian sporting standards internationally through his mentoring and coaching endeavours and that he would be an asset to the Australian community. The Tribunal is further satisfied that such benefit will apply nationally beyond the local or regional level. Therefore, the Tribunal is satisfied that the applicant satisfies cl.858.212(2)(c).

    Employability

21. The applicant must demonstrate he would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area of rugby union. The Tribunal is satisfied that the applicant has a demonstrated history of receiving remuneration for playing rugby union both in Australia and internationally. The Tribunal is also satisfied that the applicant can secure employment as a rugby union coach should he wish to do so. It is apparent that the applicant financially sustains himself through the sport of rugby union and continues to be employable in this area. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.858.212(2)(d).

    The nominator and nomination form

22. Form 1000 must accompany the visa application. The nominator must be an Australian citizen, permanent resident, eligible New Zealand citizen or an Australian organisation having national reputation relevant to the area of the applicant’s achievement and testifying to the applicant’s record of achievement. 

23. The nominator must have a national reputation and be highly regarded throughout Australia. A reputation confined to one state or region would not be considered national. The reputation must be in the same field as that of the applicant.

24. The nominator is Mr Timothy Atkinson. He is currently a rugby union coach and former representative rugby union player in the Australian Sevens side (including representing Australia at the 2002 Commonwealth Games in Manchester), the Queensland Reds and the ACT Brumbies. Mr Atkinson has personally coached and mentored the applicant in the area of rugby union. Given the aforementioned matters, the Tribunal is satisfied that Mr Atkinson is an Australian citizen who has a national reputation in relation to rugby union. Accordingly, the Tribunal is satisfied that the applicant satisfies the requirements of cl.858.212(2)(e).

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

    DECISION

26. 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 for a Subclass 858 visa:

    ·     cl.858.212 of Schedule 2 to the Regulations.

    K. Chapman
    Member