Van Duyker (Migration)

[2018] AATA 5870

Van Duyker (Migration) [2018] AATA 5870 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ulricht van Duyker

CASE NUMBER:  1721958

DIBP REFERENCE(S):  BCC2017/1524827

MEMBER:Amanda Mendes Da Costa

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa

Statement made on 22 October 2018 at 10:15am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – cricketer – applicant had not competed at cricket’s highest level of international competition – not considered at top of field – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cl 858.212

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

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 12 September 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).

2. The visa applicant applied for the visa on 26 April 2017. The delegate refused to grant the visa on the basis that the applicant had not competed at cricket’s highest level of international competition and the delegate was not satisfied that the applicant was considered at the very top of his field.

3. The applicant seeks review of the delegate’s decision and for that purpose provided the Tribunal with a copy of the primary decision.

4. The applicant appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Deidre Forrester and his mother’s partner, Charles Webster.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).

   Subclause (2) sets out the following requirements:

   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 approval form 1000.

   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.

7. The applicant has not made any claims in relation to cl.858.212(4).

8. The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met.

9. Paragraph 858.212(2)(a) requires the applicant to have an internationally recognised record of outstanding achievement in: a profession; a sport; the arts; or academia and research.

10. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a cricketer.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(ii) as belonging to a sport for the purposes of cl.858.212(2)(a).

11. 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).

12. The Tribunal notes that it has been provided with the following documents by the applicant for the purpose of this review:

    ·     Reference from Michael Weatherald, Director of Cricket – Sturt Cricket Club, undated.

    ·     Reference from Tim Nielson, General Manager High Performance, South Australian Cricket Association, dated 20 December 2017 (F21).

    ·     Reference, Robert Young, Chairman – Sturt District Cricket Club, dated 24 October 2017 (F20).

    ·     Statement by the review applicant, undated.

    ·     Statement of Charles Webster, undated.

    ·     Statement of Deidre Forrester, undated.

13. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

14. 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. 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.”

15. 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 acknowledges however that, while 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.

16. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, which is apposite. 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.

17. 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.

18. 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.

19. 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.

20. 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.

    Summary of the applicant’s evidence

21. Mr van Duyker was born in South Africa and is currently 29 years of age.  He commenced playing cricket in primary school and continued playing it throughout his secondary education.  As a teenager he commenced studying and playing cricket at the Rowlin National Cricket Academy School and at age 16 he commenced playing in the South African Premier league, where he competed for five years.  He also played provincial cricket in the under 19s competition and played two List A games.  He subsequently played in the Eastern Premier League, competing against touring and second eleven teams.  Mr van Duyker also toured South Africa, playing other cricket academies.

22. During the period in which he played with the Eastern Premier League, Mr van Duyker won a number of awards including best league bowler in three consecutive years.  He ceased playing with this league when he realised that his opportunities for future positions, including the South African Team were limited by the system of quotas introduced in South Africa to address previous discrimination in sport and public life in that country.

23. At aged 19 years, Mr van Duyker was offered a position with the Warriors Cricket Academy in Port Elizabeth, South Africa.   This prestigious academy offered him opportunities to play first class cricket and for university study.  A week after the initial offer was made, the coach at the academy contacted Mr van Duyker to advise that the position was no longer available to him and that it had been given to a socially disadvantaged player. 

24. Mr van Duyker then took a year off from playing cricket and concentrated on employment as a property agent with a large property company and later worked in sales and marketing for a company manufacturing electric motors.  After that year, Mr van Duyker returned to the Eastern Premier League where he played a season in which he was awarded best bowler in the league for the most wickets taken and the best bowling aggregate with a batting average of 70.  The applicant’s team won three grand final victories and due to his performance, he was recalled to the first class team, where he played the following year.  However, Mr van Duyker subsequently found that he was not being paid some of the match fees owed to him and was being given second rather first eleven matches.

25. Mr van Duyker then returned to Port Elizabeth in 2013-2014, where he trained with the Warrior’s team but was not placed on the player list.  He did play as ‘12th man’ in a test match between South Africa and Australia and travelled South Africa to participate in trials for positions with teams in other leagues. He was not successful with these endeavours.

26. Mr van Duyker left South Africa and played for four consecutive seasons with teams in the United Kingdom (UK).  He played with three clubs, situated in Manchester, Liverpool and Cambridge; the teams in which he played were in the premier league competition.  He also played by invitation, in a few second eleven games for a club in Lancashire.  He was unable to play County cricket as he was not a UK citizen.  However, he was engaged at the Lords and Old Trafford cricket grounds to assist in being a training partner for the members of international teams from Sri Lanka, Pakistan, India and England.  

27. Mr van Duyker arrived in Australia in December 2014 to visit his mother and her partner (Mr Webster) who had moved here from South Africa.  He obtained a position as a player with the Mackay Cricket Club in Queensland where he played for half a season.  He subsequently played for the Lucknow Magpies Cricket Club in Gippsland, Victoria in 2015 and 2016/2017.  In 2017 Mr van Duyker played first grade cricket for the South Australian Cricket Association (SACA) Premier competition and represented the Southern Force team in the SACA Redbacks League during the 2017-2018 season.  During the 2017 and 2018 winter season, Mr van Duyker has played for the Pines Cricket Club in Darwin.  He has also undertaken coaching for Northern Territory Cricket and with the Pines Club.  Whilst in Darwin, Mr van Duyker has also been a player coach of the Desert Blaze team in the first edition of the Northern Territory Strike League.  He has further engaged in casual employment with Kelsey Plumbing.  The Tribunal notes that it has been provided with a written reference from Mr Kelsey, the proprietor of this business.  Mr Kelsey attests to the applicant’s work ethic and aptitude for learning.  He is now prepared to offer the applicant full time employment as an apprentice plumber.

28. Mr van Duyker has been involved in providing coaching to other players, particularly juniors, at the clubs where he has played in Australia.  He is committed to continuing this role and being part of the ‘cricket community’ whether as a player or coach.

29. Following the hearing the applicant provided the Tribunal with letters from the following:

    ·     Joel Morrison, Chief Executive Officer of Northern Territory Cricket (NTC), dated 30 August 2018.

    ·     Anthony Harrison, President PINT Cricket Club, dated 28 August 2018.

30. Mr Morrison attests to the applicant’s involvement in a role in the NTC player pathway program as both a player and coach.  He has been involved in the NT Strike league, which is the peak cricket competition in the Northern Territory for the past two seasons.  Mr Morrison describes Mr van Duyker as a player who has provided significant benefit to the NTC program and has displayed the skills, physical capacity and technical ability to perform at a high level.  He considers Mr van Duyker a player of considerable talent.

31. Mr Harrison attests to the applicant’s position of Club Coach at the PINT Cricket Club for the past five months and observes that the applicant has been playing Premier Grade Cricket for the club and Strike League for the Northern Territory with continued success, competing with some of the best players in Australia.  Mr Harrison opines:

    With the right opportunities Uli has the ability to play at a much higher level as his commitment to detail and passion for the game is obvious to all around him.

32. Mr Morrison opines that the applicant has the skills, physical capacity and technical ability to perform at a high level and considers him to be a player of considerable talent.

33. Each of the above referees attest to the applicant’s good character, commitment to the game and involvement with the activities of the organisations with which he has played.

    Evidence of Charles Webster

34. Mr Webster is the partner of Mr van Duyker’s mother.  He told the Tribunal that the applicant’s mother was unable to attend the hearing, due to work commitments.  The Tribunal accepts this explanation for her absence.

35. Mr Webster described his stepson as being hardworking, tenacious and a person of exemplary character.  He said the applicant would be an asset to the Australian community and had demonstrated an ability to be self-sufficient and had supported himself financially since he arrived in Australia.

36. The Tribunal notes that Mr Webster’s statement to the Tribunal is consistent with his oral evidence.

    Statement of Deidre Forrester

37. In her statement, Ms Forrester observes that her son has committed his life to cricket since the age of five and has focused his life and will to reach the highest possible rank in cricket.  She describes her son as having a strong, stable character and has much to offer to the development of cricket.

    Delegate’s decision

38. In his decision, the delegate observed as follows:

    Whilst the applicant’s achievements in the sport are commendable, they need to be put into context by measuring the standard of competition the applicant has participated in against the sport’s most prominent levels of competition.  It should be noted that the competitions have been mainly at a domestic club level in South Africa, England and Australia.  Whilst this is noteworthy, it is not the sport’s highest standard of competition which are those matches involving national teams in the sport’s three variances of international competition: Test cricket, One Day Internationals (ODI) and T20 Internationals (T201).

39. The Tribunal has considered the material provided to it regarding the applicant’s cricket career in South Australia (and detailed in paragraph 12 of this decision).  Mr Michael Weatherald observes that as a player, the applicant has shown his ability to play at higher level first class cricket and if he gained permanent residency, would contribute to the Australian community, particularly in cricket.  Mr Tim Nielson notes that the applicant has played first grade cricket in the South Australian Cricket Association’s Premier cricket competition and has performed at a very high level.  In his opinion, the applicant has displayed the skills, physical capacity and technical ability to perform at a high level.  Mr Robert Young observes that from the applicant’s past experience and performances at an elite level in South Africa and around the cricketing world, he has no doubt that the applicant has the capacity to be a first class cricketer.

40. The Tribunal has further considered the letters of support for the applicant provided by the Mackay Cricket Association; Lucknow Cricket Club; Bairnsdale Junior Cricket Association; Ketton Lions Cricket Club (UK); Rowlin National Cricket Academy (South Africa) and University Cricket Club.  This documentation was provided by the applicant to the Department.  The Tribunal further notes that Sandra O’Brien, Executive Assistant, Game & Market Development, Cricket Australia also provided a letter of support dated 20 January 2016.  In that letter Ms O’Brien states that Cricket Australia supports Mr van Duyker’s visa application and that is its opinion Mr van Duyker has the ability to compete at the national level in Australia and will be a benefit to the sport of cricket in Australia.

41. Clause 858.212(2)(a) requires that the applicant has an internationally recognised record of exceptional and outstanding achievement.  The Tribunal considers that the references provided by fellow players, coaches and prominent Australians in the field of cricket are favourable to the applicant.  However, while they speak to his talent and potential for future achievements in the field, they do not establish the requisite level of international recognition or exceptional and outstanding talent.

1. The Tribunal is satisfied that the applicant was a promising and talented junior cricket player who participated in the Southern and Eastern Leagues in South Africa.  It notes that at the peak of his career in that country he was ‘12th man’ in a team playing the Australian national team.

2. After leaving South Africa, Mr van Duyker played in the Premier League competition in the UK.  The Tribunal accepts that the applicant was unable to participate in County Cricket in the UK because he was not a UK citizen.

3. Since arriving in Australia in 2014, the applicant has played at the district level in Victoria, South Australia and the Northern Territory.  Whilst the Tribunal notes that the applicant’s referees attest to him having the skills and capacity to perform at a high level, the Tribunal notes that he has not competed at a national or international level, apart from his position as ‘12th man’ on one tour.  Whilst the Tribunal accepts that there may have been valid social and migration issues which prevented the applicant from performing in the upper echelons of the sport, and that the applicant has the skills to compete at that level, it finds that he has not played at a level which would be considered outstanding or exceptional.

4. The applicant’s achievements must be assessed at the time of the visa application.  On the evidence before the Tribunal it is apparent that at the time of application he had some success as a competitive cricketer, predominantly at the Premier League level.  The applicant continues to work as a coach, on both a voluntarily and paid basis and has no doubt been able to attract students because of his expertise.  The evidence indicates that the applicant may well have the skills necessary to participate in national and international competition but unfortunately he has been unable to progress to the highest levels of the sport.

5. The Tribunal acknowledges that the applicant is well respected by many people who have supported his application and that his talents have been recognised by those he has played with or for in Australia.  However the Tribunal is unable to find on the evidence before it that the applicant satisfies the regulatory requirements for the grant of a Distinguished Talent visa.

6. On the evidence before it, the Tribunal is not satisfied that at the time of the visa application, the applicant had an internationally recognised record of exceptional and outstanding achievement.  He therefore does not meet the requirements of cl.858.212(2)(a).  Having made this finding, there is no requirement for the Tribunal to consider the other criteria in cl.858.212 for the grant of the visa.

7. As the Tribunal has found that the applicant does not satisfy the requirements of cl.858.212, the decision under review must be affirmed.  

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.

   Amanda Mendes Da Costa
   Member