1417347 (Migration) [2015] AATA 3385 (14 August 2015)

Last Updated: 28 September 2015

1417347 (Migration) [2015] AATA 3385 (14 August 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Victor Alberto Garzon Cardona
Miss Alejandra Campuzano Becerra

CASE NUMBER: 1417347

DIBP REFERENCE(S): CLF2014/16306

MEMBER: Carolyn Wilson

DATE: 14 August 2015

PLACE OF DECISION: Adelaide

DECISION: The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) Class BX visas.

Statement made on 14 August 2015 at 3:32pm

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 7 October 2014 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 3 February 2014. The delegate refused to grant the visa on the basis that the first named applicant did not meet cl.858.212.(2)(a).
3. The applicants appeared before the Tribunal on 1 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raffaele Capasso. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Distinguished Talent Class BX visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research (cl. 858.212(2)) or have provided specialised assistance to the Australian Government in matters of security (cl. 858.212(4)). There is no suggestion in this case that the applicant's claim falls in this last category.
7. The issue in the present case is whether the first named applicant (hereafter the applicant) has an internationally recognised record of exceptional and outstanding achievement as a player in the sport of futsal.
8. The applicant is a 23 year old from Colombia. He arrived in Australia as the holder of a Student visa when he was 18. He played futsal from the age of 4 or 5 but never played professionally or in any national teams in Colombia. In Australia he currently plays for a club in the Western Australia state futsal league.
9. The applicant claimed his achievements in futsal at time of application were the following:
   • Playing futsal as a child in Columbia. He played for his state’s team in the under 10 competition in 2002. He was selected for a professional team at trials for the team El Deportivo Cali. However, he played instead for a local team until coming to Australia.
   • Playing in the WA State Futsal League and Football West State League.
   • Team member in Muita Calma Futsal Club, WA, in 2011-2012. That team was undefeated in the 2011 season and won the winter season championship.
   • Team member of Muita Calma Futsal Club when they were invited to play in the Cairns Futsal International Club Challenge in 2012 and won the tournament. The tournament included clubs from Australia, Japan, Argentina, Korea and Malaysia.
   • Team member of Cambio Cumbre Futsal Club, WA, in 2013. The club won every tournament it competed in in 2013.
   • In 2013 he was selected as a goalkeeper for the WA All-Stars team for a tournament in Japan, but he did not play due to injury.
   • In 2013 he began coaching junior players and the women’s team at Cambio Cumbre.
10. He provided numerous references from persons involved in futsal in Australia, fellow players, and parents of junior players coached by the applicant in Australia.
11. The delegate considered the applicant’s record of achievement in futsal, and concluded they were not satisfied the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport.
12. The criterion requires that at time of application the applicant had an internationally recognised record of exceptional and outstanding achievement in his field. In determining whether the applicant has such a record the Tribunal considers the criterion requires a demonstrated excellence in the relevant field which is out of the ordinary.^[1]
13. The Tribunal has taken into account the applicant’s history in Colombia where he played in junior local and state teams that won tournaments. He claims to have been selected for a professional team, but he did not go on to play for them as he was working and playing in a local team until he came to Australia. The Tribunal is not satisfied on the evidence before it that the applicant has demonstrated there is anything out of the ordinary, exceptional or outstanding about his achievement in futsal in Colombia.
14. The applicant claims to have played for a club in Colombia from which many distinguished Colombian players came from. The Tribunal accepts he played as a juvenile for a club with a good reputation in Colombia, but does not accept the argument that merely playing for such a club enhances his reputation such that his time at the club amounts to an exceptional and outstanding achievement.
15. The Tribunal has taken into account the references provided in support of the application and the oral evidence of Mr Capasso regarding the applicant's talent and potential to contribute to the sport of futsal in Australia. However, the criterion for a distinguished talent visa requires a record of exceptional and outstanding achievement at time of application. That requires an assessment of his past achievements and reputation at time of application, not his potential to develop a record of exceptional and outstanding achievement as he continues to develop as a futsal player.
16. The Tribunal has had regard to the evidence provided on the applicant’s record of achievement in futsal. This includes his playing futsal as a child in Colombia, playing for clubs in Western Australia, coaching junior teams, his appearance in a tournament in Cairns where his team played successfully against clubs from other countries, his selection for a place in a West Australian team to go to Japan, and his membership of teams that have won championships in Western Australia. The Tribunal has also taken into account that the applicant’s position is as a goalkeeper, and he is considered by those providing references, including Mr Capasso, to be a good goalkeeper. However, in considering his record of achievement in futsal, the Tribunal is not satisfied that the applicant has demonstrated he has achieved a level of excellence in futsal that is out of the ordinary. The Tribunal is not satisfied he has a record of exceptional and outstanding achievement in futsal, and further is not satisfied he is internationally recognised as having such a record.
17. The representative provided reference numbers for other decisions by Tribunal Members where a positive finding was made on cl.858.212(2). The Tribunal has noted these decisions but is not bound by them. The question for the Tribunal is not whether other applicants for Distinguished Talent visas have been found to meet cl.858.212(2)(a) but whether the applicant in this case does. For the reasons given above, the Tribunal finds in the circumstances of this application he does not have an internationally recognised record of exceptional and outstanding achievement.
18. The Tribunal finds the applicant does not meet cl.858.212(2)(a) and must therefore affirm the decision under review.

DECISION

19. The Tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) Class BX visas.

Carolyn Wilson
Member

ATTACHMENT – EXTRACT FROM THE MIGRATION REGULATIONS 1994

858.212

...

(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.

(f) if the applicant has not turned 18, or is at least 55 years old, at the time of application — would be of exceptional benefit to the Australian community.

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^[1] Gaffar v MIMIA [2000] FCA 293 (French J, 15 March 2000) at [19]-[20].