Vandort (Migration)

[2018] AATA 1538

Vandort (Migration) [2018] AATA 1538 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michael Graydon Vandort
Mrs Shahani Cecelia Vandort

CASE NUMBER:  1606325

DIBP REFERENCE(S):  BCC2016/1123217

MEMBER:Cathrine Burnett-Wake

DATE:9 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:

·cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa; and

·The second named applicant meet’s clause 858.311 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 09 April 2018 at 4:39pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) - “Exceptional and outstanding achievement” in sport – Cricket - Whether the applicant is still “prominent” in the area – Ongoing high level play in the 2 years preceding application – Letters of support from individuals prominent in the area – Whether the applicant would be an asset to the Australian community – Ongoing contributions to the Australian community – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 858.212(2), 858.311

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 22 April 2016 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 15 March 2016. The delegate refused to grant the visa on 22 April 2016. The delegate stated: ‘…In summary, I accept the applicant held an internationally recognised record of exceptional and outstanding achievement during the height of his career; however, since his retirement from the Sri Lankan national team in 2013 his participation in the sport has been at a level not considered competitive enough to demonstrate current prominence in the field. Therefore, for the reasons as given above I have determined that the applicant has not satisfied subclass 858.212(2)(b)…’

3. As there was nothing to indicate that the applicant had provided specialised assistance to the Australian Government in matters of security, the delegate found that the applicant did not meet the requirements of cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

7. The issue in dispute in this review is whether the visa applicant meets the requirements of cl.858.212(1). This clause relevantly provides:(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.

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

9. In determining whether the visa applicant meets cl.858.212(2), all of the stated subclauses must be met.

10. The delegate found that the applicant has an internationally recognised record of exceptional and outstanding achievement in the sport of cricket and acknowledged his longstanding international career representing Sri Lanka playing at international test match level; twenty-20 matches and one-day international games. The delegate also acknowledged his high level domestic competition career.

11. The Tribunal is in agreement with the delegate, that the applicant has an internationally recognised record of exceptional and outstanding achievement in the sport of cricket.

12. Submissions made to the Tribunal by the applicant’s representative summarised the applicant’s career leading up to the time of application as follows:

    • Michael debuted for Sri Lanka as a test cricketer in September 2001 playing against Bangladesh in Colombo;
    • He went on to play 20 matches as a test cricketer for Sri Lanka with a batting average of 36.90;
    • Michael was a contracted player with the Sri Lankan cricket team from 2005 to 2014;
    • Michael has also played 1, One Day International match and 17, T20 matches;
    • In addition to his test and international career he has played 171 matches of first class cricket with a batting average of 32.98 and 105 List A matches representing Colombo Cricket Club and Ragama Cricket Club;
    • Michael’s playing career has spanned 16 years, scoring over 12,000 runs in List A and First class formats.

13. During the hearing the applicant also verbally summarised his career leading up to the time of application, which mirrored the statements previously made to the Tribunal by the representative and was consistent with supporting information provided to the Tribunal and on file. A search of the internet for the applicant also brings back many results, from multiple credible sources, of the applicant’s achievements in the sport of cricket. As such, the Tribunal is satisfied that cl.858.212(2)(a)(ii) is met.

14. The delegate found that since the applicant’s retirement from the Sri Lankan national team in 2013, his participation in the sport was not considered competitive enough to demonstrate current prominence in the field.

15. Clause 858.212(2)(b) requires the applicant ‘is still prominent in the area’. Prominent is not defined in the regulations. However, policy provides:

    ‘prominent’ should be accorded ordinary dictionary meaning within context; appropriate synonyms are conspicuous and important.

    It is essential for the integrity of the distinguished talent program that successful applicants not be assessed on past performance only but require current prominence in their area.

    An applicant claiming distinguished talent in a particular area, but who has not been active at a high level in that area for more than 2 years, would not be regarded as retaining prominence in that area.’

16. On the basis of the ordinary dictionary meaning of the term 'prominent', it is defined in the Macquarie English dictionary as:

    1.  standing out so as to be easily seen; conspicuous; very noticeable: a prominent feature.

    2.  standing out beyond the adjacent surface or line; projecting.

    3.  important; leading; well-known: a prominent citizen.

17. During the hearing the applicant gave evidence to the Tribunal that he was prominent and active at a high level within 2-years of making the application. The applicant stated that he was still a contracted player with the national Sri Lankan team for the 2013 and 2014 cricket seasons with the later season being less than 2-years prior to making the application for the Distinguished Talent visa. A copy of the said contract was provided to both the Department and Tribunal. In the written submissions received from the applicant’s representative it was argued that the contract ‘clearly demonstrates that at the time the application was lodged and finalised, the delegate could have been satisfied that Michael was still prominent in the area of cricket given he was a contracted player for Sri Lanka Cricket.’ The Tribunal has had regard to the applicant’s Sri Lanka Cricket Provincial Player’s Annual Contract. It clearly sets out that the applicant was contractually obliged to be available for selection for the 2013 and 2014 seasons. Although the applicant did not play for the national team in the 2014 season, the Tribunal accepts the submissions by the applicant and their representative that the contract demonstrates he was active and prominent in the area of cricket within 2 years of making the application for a Distinguished Talent visa.

18. In addition to the contract, multiple supporting documents have been provided by the applicant which demonstrate his international record of achievement, recognition and prominence within the sport of cricket. The supporting documents include:

    • International media articles published by the Daily Mirror in the United Kingdom, Daily News and The Sunday Times, all demonstrating his recognition on the international stage in the sport of cricket;
    • Letter from Cricket Australia dated 15 January 2016 acknowledging the applicant as a well-qualified, energetic, dedicated and experienced international cricket player;
    • Letter from Sri Lanka Cricket confirming the applicant’s career at national level;
    • Letter from Mahela Jayawarda, former Sri Lanka Cricket Captain/Player attesting to the applicant’s level of skill and recognition by the Sri Lanka cricketing community;
    • Email from David Hussey a former Australian test cricketer attesting to the applicant’s cricket career at national level; 
    • Nomination by Tom Moody, a former Australian test cricketer and now coach and commentator, for a Distinguished Talent Visa for the applicant. The statement of support accompanying the nomination read in part:

    ‘..was a member of the Sri Lankan cricket team that toured West Indies, England, Bangladesh and a few other home series during years 2005 and 2007 and I was the head coach of Sri Lanka team. I was lucky to have Michael in my team as he was a consistent opening batsmen and I could rely on him.

    Mr Vandort is currently playing in Australia in the DDCA (Turf 1 representing the Springvale South Cricket Club. He is also a level 2 qualified cricket coach. With reference to his current status, I can certainly confirm that he remains prominent in cricket. Additionally, his knowledge and skills would be an asset to the Australian cricket community, especially in developing competitiveness in Australian cricket. Also, I strongly believe Michael’s experience and expertise will be an advantage to young Australian cricketers in regard to improve their skills and techniques.

    I personally recommend Mr Michael Vandort due to his outstanding career records and exceptional skills as a Professional Cricket Player (Batsman) and recommend him as a fine choice as a recipient for a Distinguished Talent visa…’

19. During the hearing the representative posited that the test to determine prominence is not the ‘Shane Warne test’; being that even individuals not familiar with cricket must know the name and identify and associate the individual with the sport, as they would with the mention of Shane Warne’s name for instance. But rather, the test is that the applicant is recognised as prominent by those within their field and for cricket would be; officials, other players, peak bodies/associations, media, fans and so forth. The Tribunal agrees that the ‘Shane Warne test’ is not the correct method to measure prominence.

20. In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ‘stands out’ in his field and is ‘important’ and ‘well known’ by others within his sport. The Tribunal also places significant weight on the nomination and endorsement of Mr Tom Moody for the applicant. Given Mr Tom Moody’s status in Australia and internationally, he is very well placed to determine whether a cricketer has an internationally recognised record of exceptional and outstanding achievement, is prominent and whether they would be an asset to the Australian community, which he has done for the applicant. As such, the Tribunal is satisfied cl.858.212(2)(b) is met.

21. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. The applicant has been present in Australia since his last 401 visa was granted, arriving on 1 October 2015. Since that time the applicant has been active within his local sporting community. The Tribunal heard evidence from the applicant about the work he undertakes with the Springvale South Cricket Club, the Dandenong District Cricket Association, the Southern Ranges Cricket Club and Lions Australia, including the mentoring of players in the senior and junior cricket teams. The applicant outlined at hearing that he was seen as a trusted leader within the local cricket community and the younger players would seek him out for help and mentoring, which he was willing and happy to provide. The applicant outlined that he planned to continue with his coaching and mentoring if his visa were to be approved.

22. Tony Cooper the Secretary of the Springvale South Cricket Club provided a letter to the Tribunal which supports the applicant’s evidence. The letter dated 12 March 2018 states:

    ‘The Springvale South Cricket Club has been privileged to have the services of Michael Vandort for the past three seasons.

    In addition to the substantial contribution Michael has made on the field, he has also take (sic) an active role in the coaching and mentoring our juniors and young senior players.

    In particular, Michael has assumed responsibility for training our under 17 team during the week. To have someone of Michael’s calibre and experience guiding our young men has been fantastic for our club.

    Our club is in an area that is struggling to find juniors. Having Michael’s profile and experience enabled us to attract enough players to field teams in all age groups…’

23. Further letters of support attesting to the applicant’s involvement with the Dandenong District Cricket Association, the Southern Ranges Cricket Club and Lions Australia have been provided. Each of the letters detail how the applicant has been involved with the sport as a coach and mentor and how his skills and prominent profile have all had a positive contribution.

24. Given the applicant’s active positive contribution over the last several years in Australia, and his commitment to continue if his visa were to be granted, the Tribunal is satisfied that the applicant is, and will continue to be, an asset to the community, therefore cl.858.212(2)(c) is met.

25. Clause 858.212(2)(d) requires the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area. The applicant is currently employed full time by Hunter Express, and has been for the last 2-years. Whilst awaiting the outcome of this application, the applicant has been in continual employment and in addition to this has become established independently in the Melbourne cricketing community as a paid cricket coach. On that basis, the Tribunal sees no reason as to why that would not continue into the future. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

26. The final subclause within cl.858.212 that must be met is cl.858.212(2)(e). This subclause requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed approved form 1000 signed by Mr Tom Moody, an Australian citizen, accompanied the application. Mr Tom Moody attested in this form to the applicant's record of achievement in the sport of cricket. As such cl.858.212(2)(e) is met.

27. As the applicant meets all of the applicable 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.

28. As the secondary applicant is a member of the family unit of the applicant, the Tribunal finds that she is able to meet the requirements in cl.858.311.

29. Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the grant of subclass 858 visas.

    DECISION

30. 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; and

    · The second named applicant meets clause 858.311 of Schedule 2 of the Regulations for a Subclass 858 (Distinguished Talent) visa.

    Cathrine Burnett-Wake
    Member