Zhou (Migration)

[2019] AATA 2087

Zhou (Migration) [2019] AATA 2087 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wei Zhou

CASE NUMBER:  1801033

DIBP REFERENCE(S):  BCC2017/1455056

MEMBER:Amanda Mendes Da Costa

DATE:18 April 2019

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 18 April 2019 at 11:13am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – Go player– Go falls within the area of sport – competitions restricted to a state or national level – not recognized at an international level as exceptional and outstanding – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212

CASES
Hatcher v Cohn (2004) 139 FCR 425
Gaffar v MIMA [2000] FCA 293

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 5 January 2018 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 21 April 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.858.212(2) of Schedule 2 to the Regulations.  Although the delegate considered that the lack of international competition history and any international ranking did not place the applicant as eminent in the top echelons of his field with extraordinary and remarkable abilities which were considered ‘superior’ to his peers.  The delegate considered the applicant to be more of an emerging talent at the time of application.

3. The applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from: Billy Sun, James Kaaden, Mi Yuting, Younggil An and Zhou Ge. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. The documentation provided to the Tribunal for the purpose of the review included the following:

   ·Reference, Mr James Kaaden, dated 19 December 2018.

   ·Reference, Mr Younggil An, dated 18 December 2018.

   ·Reference, Mr Hao Song Sun, dated 18 December 2018.

   ·Reference, Mr Ma Yichao, dated 17 December 2018.

   ·Reference, Mr Mi Yuting, dated 16 December 2018.

   ·Curriculum vitae for the applicant.

   ·Statement of Zhou Ge, dated 20 December 2018.

   ·Photographs of the applicant playing Go both privately and competitively, certificates of merit for participation in competitions, lanyards from the applicant’s participation in numerous competitions, media reports, contestant cards and numerous trophies and medals awarded to the applicant for success in competitions in both China and Australia.

6. The applicant brought to the hearing, many trophies, medals, lanyards and certificates for his Go playing.  He displayed them to the Tribunal member during the hearing.

7. The Tribunal was also provided with evidence of the applicant’s success in winning a Go competition in New Zealand in 2018.  However, the Tribunal finds that whilst laudable, the applicant’ success in this competition cannot be considered for the purpose of assessing the applicant’s claims against cl.858.212(2)(a) because it occurred after the date of the visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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; and

    NoteAn 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 is not turned 18, or is at least 55 years old, at the time of application, would be of exceptional benefit to the Australian community.

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

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

13. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in the game of Weiqi.

14. Weiqi, known in English as Go or Encirclement Chess is a board game for two players.  It originated in China in the 4th century BCE and is played on a board of 361 squares using black and white pieces called stones.  Each stone is of equal value as they do not carry a pre-set role as in other board games such as chess.  The object of the game is not to capture an opponent’s pieces (as in the game of chess) but to surround empty territory on the board. This is done by building encircling walls around these empty spaces.

15. The applicant claims that Go belongs to a sport for the purposes of cl.858.212(2)(a).

16. The Macquarie Dictionary defines sport as:

    an activity pursued for exercise or pleasure, usually requiring some degree of physical prowess, as hunting, fishing, racing, baseball, tennis, golf, bowling, wrestling, boxing etc.

    sporting activity: to be good at sport

    A meeting for athletic competition

    diversion; recreation; pleasant pastime.

17. The dictionary defines a game as:

    a contest for amusement in the form of a trial of chance, skill or endurance, according to set rules

    a match: a game of football; a game of chess.

18. The Tribunal notes that whilst games such as chess and bridge have not been included by the International Olympic Committee (IOC) as permanent sports in the Olympic Summer Games competition, the Fédération Internationale des Échecs and World Bridge Federation are both members of the Association of IOC Recognised International Sports Federations (ARISF).  This is a non-government organisation constituted through and recognised by the IOC.  Its members are international sports federations recognised by the IOC that currently do not compete in either the Summer or Winter Olympics.

19. The Tribunal further notes that whilst not included as a permanent sport in the Olympic Games competition, chess was an exhibition sport at the Olympic Summer Games held in Sydney in 2000.

20. The Tribunal recognises that all sports involve a combination of mental and physical skills and strategy.  Depending on the length of the competition it also requires physical stamina.  The Tribunal is satisfied that Go (as a form of chess) shares the characteristics of more traditional ‘sports’ in that it is competitive, has rules and codes of behaviour, has a player ranking system and is played globally.

21. On balance, the Tribunal is satisfied that Go falls within the area of sport as set out in cl.858.212(2)(a)(ii).

22. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Regulations.

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

24. 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.’

25. 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 and Indigenous Affairs [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 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 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.

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

27. 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 their record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

28. 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 Department guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement (PAM – Sch-2 Visa 858 – Distinguished Talent):

    What does ‘exceptional’ mean?

    For 858.212(2)(a), 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 the field.

    ‘Internationally recognised’ in this context means that a person’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.

    ‘Exceptional and outstanding’ should be accorded ordinary dictionary meaning within context.

    Policy requirements

    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 would attract similar acclaim in those countries.

    Given the ordinary dictionary meanings, in order to have a record of exceptional and outstanding achievement an applicant would be expected to have achievements remarkable in relation to that field and in relation to other participants in that field. An applicant should be at the very top of their field.

    Assessing this criterion

    In assessing the applicant’s record of achievement, officers may take into account information such as, but not necessarily limited to:

    ·     information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement.

    ·     supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia

    ·     awards or higher qualifications received from internationally recognised institutions or organisations.

    ·     details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international sporting bodies, sporting scholarships received a newspaper and magazine articles testing to achievements.

29. The policy guidelines in PAM3 reflect the following view in relation to the requirement of international recognition:

    International recognition required

    Achievement in a profession, a sport the arts or academia and research that has not would be not be recognised at an international level would not be regarded as exceptional and outstanding.

    It is expected that an applicant’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well is international standing. In determining the international standing of the applicant, officers should consider:

    ·     the international standing of the country, with the applicant’s achievements were realised, in respect of that particular field.

    ·     the standing of the achievement in relation to Australian standards and new line the standing of the achievement in relation to international standards.

    For example an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional outstanding achievement if the:

    ·     field is undertaken and recognised in a number of countries including Australia and new line.

    ·     achievement would be similarly recognised in relation to international and Australian standards for that field.

30. 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.

31. 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.

    Applicant’s evidence

32. The applicant is aged 24 years and is a national of China.  He commenced playing Go at the age of five years and initially studied with his father who owns and operates a Go school in China.  As a teenager the applicant trained at Go academies in China before suspending his training to concentrate on his academic studies.  The applicant departed China and arrived in Australia in 2014 to undertake studies at the University of NSW and later at the University of Melbourne.  The applicant graduated with a Bachelor of Science in 2018 and is currently undertaking studies for a Masters of Engineering Degree at the University of Melbourne.

33. The applicant achieved amateur level six in Go and became a national level one athlete in China.  In Australia the applicant has achieved amateur level seven Dan status and is considered the number one Go player in Australia.

34. Between 2011 and 2014 the applicant won in excess of 30 regional and provincial Go competitions in China.  His achievements in Australia have included winning the Victorian Go championships for the years 2014 to 2018; the open division of the Korean Ambassador's cup (2014, 2015 and 2017) and a win against Kevin Liu, the New Zealand representative in the Australia-New Zealand Agon Cup.  The Tribunal notes that the latter competition was not an official international competition.

35. The applicant has also competed in Go competitions at University level in the United Kingdom and won a number of Australian national competitions.

36. Apart from participating in tournaments in Australia the applicant has undertaken private coaching and assisting members of the Victorian Go club.  He is keen to continue this coaching whilst furthering his competitive skills as a Go player.

37. The applicant told the Tribunal that he had been limited in his ability to represent Australia as a member of its national team, at international competitions due to his migration status.  If his visa application was granted he would compete at an international level.  The applicant said although the delegate had found that he did not have an international ranking as a Go player, this was because his achievements in China and Australia would not be included in such rankings.  He explained that the ranking system concentrated on competitions in Asia (where he had not competed for some years) and that he had played and beaten some of the top ranking Go players in China.

    Evidence of James Kaaden

38. Mr Kaaden is the treasurer of the Australian Go Association and has been playing Go for the past eight years.  He adopted the contents of his written reference for the applicant.  Mr Kaaden told the Tribunal that the Association was founded in 1979 and currently has over 500 members.  He explained that given the number of Korean, Japanese and Chinese migrants in Australia, there is an underlying local playing population of approximately 78,000.  Until 2016 Go was a relatively unknown sport in Australia, although very popular in Asia.  In 2016 the Google company programmed a computer to beat the top human players of Go.  This was reported world-wide and triggered a great deal of interest in the game in Australia.

39. Mr Kaaden said that Australian Go players compete in international events every year, including the world amateur Go Championships, the World Pair Go Championships, the Korean Prime Minister’s Cup and other international events from the major Go playing countries – China, Korea and Japan.

40. Mr Kaaden explained that in 2006 the applicant had defeated Yuting Mi and in 2008 Jie Ke, both players who are currently ranked 3rd and 4th in the world respectively.  He was also placed first multiple times, in city and state-level tournaments in China, and finished as high as 5th in the National Chinese tournaments.  Mr Kaaden considered this a phenomenal achievement, given that 19 of the top 25 Go players in the world are Chinese.

41. Since taking part in his first Australian tournament in 2014 (in NSW) the applicant had won eight national tournaments and three state tournaments and had played in the Australia-New Zealand Agon Cup, defeating the top New Zealand player two games to one.

1. In Mr Kaaden’s opinion, the applicant had the ability to compete at an international level.  He explained that the applicant was currently unable to represent Australia in international competitions as he was not an Australian citizen or permanent resident.  He said that most Go players were ‘at their prime’ during their 20s and that the Association hoped that the applicant would be in a position to represent Australia in international competitions before he reaches the age of 30 years.  Mr Kaaden said that the whole committee of the Association supported the applicant’s visa application.

2. Mr Kaaden further described the applicant as a very generous player who spent a considerable amount of time encouraging and teaching younger players of the game.  He considered the applicant to be an asset to the Australian community given his talent as a Go player and his willingness to contribute to the skills and achievements of other players, particularly those younger than himself.

   Evidence of Younggil An

3. Mr An is the head coach for the Australian National Go team.  Mr An adopted the contents of his written reference for the applicant.  Mr An told the Tribunal that although Australia does not have a formal ranking system for Go players, the applicant is this country’s top player.  He explained that the applicant has the talent to compete in international competitions but does not have the visa status which would entitle him to represent Australia in such competitions.  In his oral evidence Mr An described the applicant’s talent in Go as very high and in his written reference says that he considers the applicant to be an extremely talented Go player and one of the most outstanding players in Australia.  He explained that Australian competitors at international Go competitions are not as strong or as talented as the applicant in the sport.

4. Mr An opined that if the applicant became an Australian permanent resident he would be eligible to achieve Australian ranking in Go and would be ranked in the top three players in Australia.

   Evidence of Mi Yuting

5. Mr Yuting lives in China and gave evidence by telephone.  He confirmed the contents of his written reference regarding the applicant.

6. Mr Yuting is a Chinese level four professional Go player, a member of the Chinese national team and has won championships in several top competitions in China. He has represented China in world competition Go and has been a friend of the applicant for several years.

7. Mr Yuting was formerly the number 1 ranked Go player in China and is now ranked number 2.  He told the Tribunal that he and the applicant trained together as Go players when they were young.  He described the applicant as quite a strong player as a child.

8. In 2006–2007 the applicant and Mr Yuting were training together as Go players in China. Their coach was a Mr Chen who was chief coach of the Tianjin Go team, whose trainees were all Go ‘stars’ in their own provinces. In Mr Yuting’s opinion, the applicant was even outstanding among those trainees. He described himself and the applicant as both being equally matched in skills in training competitions. Their scores were often tied and each could win over the other. Mr Yuting described his style as more aggressive whilst the applicant’s style was more enduring – like a marathon runner.  After leaving Tianjin they both entered different professional training courses in Beijing. Although they were unable to meet regularly they came across each other very often and were contestants in the same competitions. Mr Yuting said he was aware that the applicant had received very good results in national competitions in China, beating a number of now famous Chinese players like Ke Jie who was world champion and number one worldwide for many years.  Mr Yuting said that the applicant had not really been involved in competitions in the last few years because of his study in Australia and the fact that he had given up full-time Go training in 2011 to concentrate on his academic studies. Despite that, the applicant had still defeated a player who was successful in a world nonprofessional Go championship match and is now placed 301st in the world.  Given his personal circumstances the applicant’s achievement in beating this player revealed his real strength and actual level of skill.  Mr Yuting said that as a professional in the field of Go and with his experience, he believed the applicant’s skill had reached international level. Although the applicant currently lacked opportunities to participate in world competitions, if his visa status was resolved he would certainly be able to compete at an international level and make a great contribution to Australia.

9. Mr Yuting said that the applicant would become a strong player again if he had the time to practice.  In Mr Yuting’s opinion, the applicant had the ability to play for Australia at an international level.

   Evidence of Hao Song (Billy) Sun

10. Mr Sun is a member of the Australian Go Association Committee and the President of the Victorian Go Club, which was established in 2009.  He adopted the contents of his written reference for the applicant.  Mr Sun told the Tribunal that the club currently has approximately 110 adults with 60 young members.  The club has weekly meetings where members compete and it organises 2–3 tournaments for adults and one for children, each year.  Mr Sun said that since the applicant had joined the club in 2015 he had won the Victorian championship competition every year and was the number 1 ranked player in Australia.

11. In Mr Sun’s opinion, the applicant was a first class player who had won a competition in New Zealand and was capable of playing at an international level.  Mr Sun said that the applicant’s childhood friend and fellow Go player (Mi Yuting) was a Go ‘superstar’ and if not for leaving China to study in Australia, the applicant was likely to have gained a similar reputation as a Go player in China.

    Evidence of Zhou Ge

12. Mr Zhou is the applicant’s father, who travelled from China to attend the hearing with his son. He adopted the contents of his written reference, in which he states that his son started learning Go at the age of five. Due to his special talent and his amazing results as a Go player in his teenage years, the applicant’s parents sent him to be trained by two of the top Chinese professional Go coaches when he was a teenager. In China the applicant’s team won the title in the National Go team competition and he achieved 6th place in National Go individual contests several times and achieved a level six  nonprofessional title in 2009 and the technical rating of a class one State athlete.

13. In training contests the applicant often defeated Ke Jie who in December 2018 was ranked world number one Go player.  The applicant had also defeated Mi Yuting who in October 2018 was rated number one Go player and had defeated several world champions in Chinese Go competitions.

14. Since arriving in Australia in 2014 the applicant has competed in several Go competitions overseas including a Chinese inter-team competition in Beijing, Chinese evening newspaper Go cup match on behalf of the Australian fellow traveller team, Chinese Urban bilateral dual meeting in Shanghai on behalf of Melbourne, Australia versus New Zealand Go Kings Dual Meet (which he won in 2018), and the 4th World Colleges Go Championships in Bangkok Thailand on behalf of the University of Melbourne.  The applicant’s team placed 9th in the 2017 competition.  Mr Zhou said his son had also competed in the 5th World Colleges Championships in London on behalf of the University of Melbourne in 2018.  The applicant’s team was placed 7th in the competition and the applicant beat Zhang Xiangyu, the champion of the 4th World Colleges Go Championships.

15. Mr Zhou explained that he also operates a Go school in China and that his son had taught other students there before he came to Australia.  Mr Zhou said that apart from his interest in playing Go, the applicant had also provided technical directions for high-level young players by giving private lessons in Australia.  These students had received outstanding results, including one student who won the Melbourne Teenager Go contest in 2018 and another student who placed 4th in the same competition.

16. The applicant’s father said his son wished to make further contributions to popularising and developing the game of Go in Australia. He said the applicant wanted to represent Australia in international Go competitions and to coach young players using his advanced ideas and scientific training methods.

    Evidence of Ma Yichao

17. Mr Yichao is a Chinese level five professional Go player who has won a number of Chinese national awards for Go.  He is a friend of the applicant and they spent several years in China together as teenagers, studying and competing in Go competitions.

18. In his reference Mr Yichao explains that after 2011 the applicant chose to stop training and went to college. In China most anxious contestants suspend their schooling for full-time chess training. Mr Yichao was of the impression that the applicant also suspended his schooling for about six or seven years and acknowledges that it was not easy for a player like him to return to school after so many years of suspending his study, especially in subjects such as science and engineering, which the applicant studied.

19. Mr Yichao said he was aware the applicant had travelled to Australia in 2014 and later entered the University of Melbourne to study science and engineering.  Despite concentrating on his academic studies the applicant had won many competitions in Australia and Mr Yichao believes that if the applicant was able to return to full-time Go training his ability as a player would strengthen.  He said players like the applicant with a very strong chess background, rich teaching experience and a good academic foundation are rare, even in densely populated China. In Mr Yichao’s opinion the applicant has the ability to participate in world Go competitions on behalf of Australia and to train younger Go players for national and international competition.

20. The Tribunal accepts that the applicant is an extremely talented Go player who has

    achieved considerable success at a junior level in China and in Australia in adult competitions since his arrival in 2014.  Although Australia does not have a formal ranking system for Go players the applicant is considered by the Australian Go Association and the National coach to be the number one player in Australia.  The Tribunal acknowledges that as a teenager, the applicant successfully competed against players such as Ma Yichao and Mi Yuting who have national and international reputations as Go players in China.  The Tribunal accepts that if not for him returning to academic studies and leaving China to study in Australia, the applicant may well have achieved a national reputation in China and competed at an international level for that country.  The Tribunal observes that the applicant has had limited opportunity to compete at an international level in Go, due mainly to his uncertain migration status and to a lesser degree his commitments to study.  In any event, the applicant’s competitions in China were at a provincial or regional level and in Australia had been restricted to a state or national level.

21. The Tribunal further accepts that the applicant has the talent and commitment necessary for him to compete and even succeed at an international level of competition.  It also acknowledges that two of the applicant’s childhood friends who are now prominent and internationally recognised Go players in China, acknowledge his talent and potential.

22. The Tribunal notes that the applicant does not have any ranking as far as international competition is concerned.  Whilst the Tribunal appreciates that this is because the applicant cannot compete at an international level on behalf of Australia due to his migration status, it does have an impact on his international recognition and reputation as a Go player.

23. Based on the evidence before it, the Tribunal is not satisfied that at the time of application the applicant had a record of exceptional and outstanding achievement as a Go player which was internationally recognised. 

24. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl.858.212(2)(a).

25. As the applicant does not meet the requirements of cl.858.212(2), the applicant does not satisfy cl.858.212 for the grant of the visa and the decision under review must be affirmed.

    DECISION

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

    Amanda Mendes Da Costa
    Member