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

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).
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.
The applicant lodged an application for review with the Tribunal on the 4 January 2016.
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.
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.
The applicant appeared before the Tribunal on 24 October 2017 to give evidence and present arguments.
At the outset of the review hearing the Tribunal explained in detail the merits review process and the respective issues in review.
The Tribunal made extensive reference to the Departmental decision record.…

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 Watkin (Migration)

Details

AGLC: Watkin (Migration) [2017] AATA 2131
Case: [2017] AATA 2131
Decision Date: 3 November 2017

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858, by a former professional soccer player and current soccer coach. The applicant sought review of a decision that he did not meet the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in soccer, both as a past player and a current coach, and whether he remained prominent in his field at the time of his visa application. This required an assessment of whether his achievements were out of the ordinary and whether his current coaching role demonstrated continued prominence at a national or international level.

The Tribunal considered the applicant's playing career for the Fiji national team between 1979 and 1993, including his participation in international tournaments and a notable victory against the Australian Socceroos. However, it found that since his retirement as a player, the applicant had not maintained prominence in the sport. While acknowledging his coaching role with an amateur club in rural New South Wales, the Tribunal determined that this did not constitute coaching at a national or international level, nor had the club achieved any national or international recognition. Consequently, the Tribunal concluded that the applicant did not have an internationally recognised record of exceptional and outstanding achievement as required by the visa criteria.

The Tribunal affirmed the decision not to grant the applicant a Distinguished Talent (Residence) class BX visa, as he failed to satisfy the relevant criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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 coachInternationally Recognised Record 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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