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

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

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 Zhou (Migration)

Details

AGLC: Zhou (Migration) [2019] AATA 2087
Case: [2019] AATA 2087
Decision Date: 18 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Distinguished Talent (Residence) (Class BX) Visa, Subclass 858. The applicant claimed to have an internationally recognised record of exceptional and outstanding achievement in the game of Weiqi, also known as Go. The central dispute revolved around whether the applicant met the criteria for this visa subclass, specifically the requirement of having an internationally recognised record of exceptional and outstanding achievement in a qualifying area.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the requirements of clause 858.212(2) of the Migration Regulations 1994. This clause mandates that an applicant must demonstrate an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research. The applicant contended that the game of Go qualified as a sport for the purposes of this provision.

The Tribunal reasoned that while Go is a game involving skill and strategy, it did not meet the threshold for an "internationally recognised record of exceptional and outstanding achievement" in the context of sport as contemplated by the visa criteria. Although acknowledging that some international sports federations for games like chess and bridge are recognised by the International Olympic Committee, the Tribunal found that the applicant's achievements in Go, while potentially significant at a national or state level, were not recognised internationally as exceptional and outstanding. The Tribunal noted that the applicant's competitions were restricted to state or national levels and were not recognised at an international level as exceptional and outstanding. Consequently, the applicant failed to satisfy clause 858.212(2).

As the applicant did not meet the requirements of clause 858.212(2), they did not satisfy clause 858.212 for the grant of the visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant the Distinguished Talent (Residence) (Class BX) visa.

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; andNoteAn 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. In determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met. The applicant has not made any claims in relation to cl.858.212(4). The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in the game of Weiqi. 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. The applicant claims that Go belongs to a sport for the purposes of cl.858.212(2)(a). 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 sportA meeting for athletic competitiondiversion; recreation; pleasant pastime. The dictionary defines a game as:a contest for amusement in the form of a trial of chance, skill or endurance, according to set rulesa match: a game of football; a game of chess. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence)(Class BX) visa.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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