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

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).
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.
The applicant seeks review of the delegate’s decision and for that purpose provided the Tribunal with a copy of the primary decision.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Duyker (Migration)

Details

AGLC: Van Duyker (Migration) [2018] AATA 5870
Case: [2018] AATA 5870
Decision Date: 22 October 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a cricketer, sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in his field. The Tribunal was tasked with determining whether the applicant met the criteria for this visa subclass.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in cricket, as required by subclause 858.212(2)(a) of the Migration Regulations 1994. This involved interpreting the terms "exceptional" and "outstanding" in the context of international sporting achievement and assessing whether the applicant's career to date met this high threshold.

The Tribunal reasoned that while the applicant had received favourable references from various cricket associations and individuals, attesting to his talent and potential, these did not establish the necessary level of international recognition or exceptional and outstanding achievement. The delegate's decision, which was affirmed, highlighted that the applicant's competitions had primarily been at a domestic club level, rather than at the highest standard of international competition involving national teams. The Tribunal considered dictionary definitions of "exceptional" and "outstanding" but concluded that the applicant's achievements, though commendable, did not demonstrate he was at the top of his field on an international scale.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 anarea (as mentioned in paragraph (a)) to be attested to by (a) an Australiancitizen; or (b) an Australian permanent resident; or (c) an eligible NewZealand citizen; or (d) an Australian organisation; who has a nationalreputation 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. The applicant has not made any claims in relation to cl.858.212(4). The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met. 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. 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). 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). 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. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a). 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.”

Decision

Reasons for decision

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 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). 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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