Watkin (Migration)

[2017] AATA 2131

Watkin (Migration) [2017] AATA 2131 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abraham Watkin
Mrs Josivini Nakwai Watkin
Miss Tuliana Matawalu Watkins
Mr Sitiveni Nakurua Watkins
Mr Archie Watkins

CASE NUMBER:  1600068

DIBP REFERENCE(S):  BCC2015/643302

MEMBER:John Cipolla

DATE:3 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant a Distinguished Talent (Residence) class BX visa.

Statement made on 06 November 2017 at 11:30am

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Past soccer player – Current soccer coach – Internationally recognised record of exceptional and outstanding achievement – Failure to maintain prominence

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 858.212

CASES

Gaffar v MIMIA [2000] FCA 293

Zhang v MIMA and Anor [2007] FMCA 664

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 16 December 2015 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 February 2015. The delegate refused to grant the visa on the basis that the delegate could not be satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement as a former soccer player and more recently as a soccer coach.  The delegate noted that the applicant had been a decorated player for the Fijian National Soccer team from the 1970’s through to the 1990’s and who had taken on coaching roles in Fiji and more recently with the Yoogali Football Club in rural New South Wales.  The delegate found that the applicant did have some prominence as a past soccer player in Fiji but was no longer prominent in the area as a player and as a coach.

3. The applicant lodged an application for review with the Tribunal on the 4 January 2016.

4. The Tribunal conducted a review hearing on 24 October 2017. The applicant was represented in relation to the review by his Registered Migration Agent. The representative attended the Tribunal hearing.

5. Prior to the conduct of hearing the Tribunal received a number of documents from the applicant. These documents included as follows: a letter from Iowani Niumaia Korovata the President of the Riverina Fijian Community; a letter from Sione Nosa a Migrant Worker with the Griffith Community Centre; and a letter from the Yoogali Football Club dated 17 October 2017 confirming that the applicant had been employed as the head coach of the soccer club from 2015-2017.

6. The applicant appeared before the Tribunal on 24 October 2017 to give evidence and present arguments.

7. At the outset of the review hearing the Tribunal explained in detail the merits review process and the respective issues in review.

8. The Tribunal made extensive reference to the Departmental decision record. The Tribunal noted that the Departmental delegate found that the applicant had played soccer for the Fiji national team at an international level but it also noted that Fiji globally had a low standing in international soccer and was not pre-eminent in the sport.  The Tribunal noted that the Departmental decision record indicated that the applicant’s international playing career for Fiji was between the late 1970s and the early 1990s. The Tribunal noted that the delegate made reference to the fact that the applicant had been involved in coaching soccer in Fiji and more recently in rural New South Wales. The Tribunal noted that the delegate was concerned that the applicant did not have an international reputation and was not prominent in the sport of soccer and soccer coaching at an international level. 

9. The Tribunal explained to the applicant that it was conducting a de novo review of the Departmental decision which required it to carefully engage with the evidence provided to the Department of Immigration and evidence provided at review including the review hearing.

10. The applicant gave the Tribunal his name and date of birth. The applicant advised that he started playing competitive soccer at the age of 18 and by the age of 19 he was playing for the Fijian national team in 1979. The applicant stated that his career playing international soccer for Fiji spanned the years 1979 through to 1993. The applicant stated that he engaged in tournaments in Fiji including the South Pacific games in Suva in 1979 and the Oceania Tournament against Australia, New Zealand and a number of Pacific island countries in 1983. The applicant stated that he had played at international level in Sydney and Melbourne and played in the qualifying round for the 1990 World Cup against Australia.

11. The Tribunal noted that a significant period of time has elapsed since the applicant’s international playing career and asked the applicant whether he believed he was still prominent internationally as a soccer player or soccer coach. The applicant stated that in 2013 he was invited by the Yoogali Football Club to coach their first grade team. The applicant stated that since he had been involved with this football club, the club had experienced success at local level in 2013 and 2014. The Tribunal asked the applicant about the competition teams and he advised that the club played against Griffith, Yenda and Leeton. The applicant stated that since 2013 he had been working as head coach which included coaching the first grade side as well as junior teams. The applicant stated that as a result of his oversight the junior teams had grown from 6 teams in 2013 through to 18 teams in 2017.

12. The Tribunal asked the applicant whether he had established contact with any people prominent in the sport of soccer in Australia and he advised that he had not. The Tribunal asked the applicant whether he believed he had reputation in soccer circles internationally and the applicant stated that he believed he did. The Tribunal noted that prior to the hearing it had conducted a Google search of the applicant and had found an article dated 11 November 2014 in the Guardian newspaper pertaining to the socceroos defeat to Fiji in their quest to reach the 1990 World Cup. The Tribunal noted that the article made reference to the applicant who was part of the five-man Fijian defence on that day. The applicant confirmed his participation in this soccer match.

13. Once again the Tribunal invited the applicant to provide evidence of current prominence as a past soccer player or soccer coach.  The applicant stated that as a result of the junior coaching efforts in his local club there were up-and-coming junior players that showed potential. The applicant believed that solid training of junior players meant more quality players in Australia in the future. The applicant stated that he was still coaching and he further stated that he enjoyed his role with the Yoogali football club and his life in the Griffith area.

14. The applicant’s representative advised that he would like to provide a post hearing submission within a week of the hearing and this was duly consented to by the Tribunal. The hearing concluded.

15. The Tribunal received a post hearing submission from the applicant’s representative on 1 November 2017. Included in the submission was a copy of the article referred to by the Tribunal at hearing from the Guardian Australia in November 2014; evidence of Fijian players that had made it to the Australian soccer A League; evidence of the Fiji national football teams records and appearances from 1983 noting the applicant had made 3 international appearances for Fiji during his career as a player with the National Fiji side.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the relevant criteria for the grant of a Distinguished Talent visa.

    ASSESSMENT AGAINST THE CRITERIA

17. There are various elements within cl.858.212(2) which need to be satisfied. The first is whether the applicant has an internationally recognised record of exceptional and outstanding achievement in one of the areas set out in cl.858.212(2)(a). The applicant’s nominated area is as a past soccer player and a current soccer coach

    Internationally Recognised Record

18. In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary: see Gaffar v MIMIA[2000]FCA293 where the court considered the phrase “exceptional record of achievement” in an earlier category of Skilled Residence Visa.

19. The ordinary meaning of “record” does not require that the record be quantifiable as large or lengthy or as having been sustained over a period of time.  A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA and Anor[2007]FMCA664.

20. It is apparent from the material provided to the Tribunal at review and provided with the visa application that the applicant is currently the coach of the Yoogali Football Club in the Riverina area of New South Wales.  The evidence further indicates that the applicant played for the Fiji national soccer team between 1979 through to 1993. The evidence before the Tribunal indicates that the applicant played a significant role in Fiji’s defeat of the Australian socceroos in the 1990 qualifying rounds for the World Cup.  The evidence indicates that since the applicant’s retirement that he had been involved in soccer coaching in Fiji and since 2013 with an amateur football club in the Riverina area of New South Wales.

21. As noted the regulatory requirements are such that the applicant needs to establish at the time of visa application that he has an internationally recognised record of exceptional and outstanding achievement in a sport in this case soccer as a past player and current coach and that he is still prominent in the area.  The Tribunal acknowledges that the applicant played for the Fiji national team in the late 1970s through to 1993 and that he played a range of international tournaments. However the evidence indicates that since that time the applicant has not maintained prominence as a soccer player. The Tribunal acknowledges that the applicant has made a significant contribution to the Yoogali Football Club as a soccer coach but notes that this is an amateur club in rural New South Wales.  The Tribunal finds that the applicant is not coaching at a national or international level or that the football club has enjoyed any national or international recognition during the time that the applicant has been in the coaching position. The Tribunal accordingly finds that the applicant at time of application and currently does not have an international record of exceptional and outstanding achievement as a former soccer player and a current soccer coach.

22. On the basis of the evidence before it the Tribunal is not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement as a former soccer player and as a current soccer coach and that he is still prominent in these areas.

23. 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 coached 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.

    CONCLUSION

24. 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

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

    John Cipolla
    Senior Member