AustLII

Administrative Appeals Tribunal of Australia

Dos Santos Ludgero (Migration) [2020] AATA 5464 (5 November 2020)

Last Updated: 18 January 2021

Dos Santos Ludgero (Migration) [2020] AATA 5464 (5 November 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Dr Ian Lucas Dos Santos Ludgero

CASE NUMBER: 1806794

DIBP REFERENCE(S): BCC2017/1828521 BCC2017/2248084

MEMBER: Marten Kennedy

DATE: 5 November 2020

PLACE OF DECISION: Adelaide

DECISION: The Tribunal affirms the decision not to grant the applicant
a Distinguished Talent (Residence)
(Class BX) Subclass 858 visa.

Statement made on 5 November 2020 at 9.22am

CATCHWORDS

MIGRATION
– Distinguished Talent (Residence) (Class BX) visas – Subclass 858
(Distinguished Talent) –
internationally
recognised record of exceptional
and outstanding achievement in a sport – Brazilian Jiu Jitsu
(BJJ) athlete
– emerging
talent – athlete’s progress governed by a coach
– limitations on international
organisation and accreditation –
limited international competition opportunities – decision under review
affirmed

LEGISLATION

Migration Act 1958, s

65

Migration Regulations 1994, Schedule 2, cl

858.212

CASES

Bretag v Immigration Review Tribunal

[1991] FCA 582

Gaffar v MIMIA [2000] FCA 293

Singh v MHA
[2018] FCA 1337

Singh v MIBP [2017] FCCA 2992

Zhang v MIMA
[2007] FMCA 664

STATEMENT OF DECISION AND REASONS

1.
This is an application for review of a decision made by a delegate of the
Minister for Immigration on 23
February 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 Distinguished Talent Class BX visa is a permanent visa for persons who have
an internationally
recognised record of exceptional
and outstanding achievement
in identified areas, including (relevantly) a
sport (cl. 858.212(2)).
[1]
3.
The applicant is a Brazilian Jiu Jitsu (BJJ) athlete. He applied for the visa
on 22 May 2017. The delegate
refused to grant the
visa on 23 February 2018 on
the basis that the applicant did not meet cl.858.212(2)(a),
finding that while
the applicant had demonstrated
commendable achievement and had participated
successfully in championships within Brazil, and Australia, he was an emerging
talent
and did not hold a
recognised international record of exceptional and
outstanding achievement in the sport. The delegate was
also
not satisfied the
applicant had an internationally recognised record of exceptional and
outstanding
achievement as a coach.
4.
The visa applicant applied to the Tribunal for review on 14 March
2018.

Does Mr Ludgero have an internationally recognised record

of exceptional and outstanding
achievement in sport?

5.
Mr Ludgero has provided the Tribunal with a comprehensive submission and
corroborating records
outlining his experience and achievements
in the area of
BJJ. Mr Ludgero has also helpfully provided
materials explaining the history of
the sport, and at the hearing assisted
me to understand the way the sport is
organised nationally and internationally. I accept all the evidence given by Mr
Ludgero as
to his achievements
and as to the nature and organisation of the
sport.
6.
One key submission made by Mr Ludgero required me to reconsider whether it is
correct to view BJJ as a
sport. Mr Ludgero cogently
argues that as a martial
art there is less focus on competition and international
ranking as there may be
in more ‘mainstream’
sports. While I understand Mr Ludgero’s
point in this regard, the
Regulations ask me to consider whether Mr Ludgero has
an
internationally recognised record of exceptional
and outstanding achievement
in one of four identified ‘areas’; namely,
a profession, a sport,
the arts or
academia and research. Although I have followed and understand Mr
Ludgero’s argument regarding
the
nature of BJJ as a martial art, I am
still inclined to view it as a sport in this context. In this regard, it
combines
physical
and mental training and is manifested in competition. Competitions within other martial arts form part
of the Olympic games. I
accept
that BJJ is best described as a martial art, but the area of ‘sport’
is the most
apt of the four areas mentioned
in cl.858.212(2) of Schedule 2 to
the Regulations. It does not fall within
recognised professions, and nor is it
an area of academia
or research. The ‘arts’ in this context I
understand to
mean music, film, theatre and the like. While aspects of BJJ
no
doubt may be described as an art form in
many ways, I do not view it as falling
amongst ‘the arts’ for present purposes.
7.
The Regulations require the applicant to hold an internationally recognised
record of exceptional and
outstanding achievement. A
record is an aggregation or
a list, not necessarily a large aggregation or a long
list: Zhang v MIMA
[2007] FMCA 664. I also bear in mind that the criterion requires a
demonstrated excellence
in the relevant occupation which is out of the ordinary:
Gaffar v MIMIA [2000] FCA 293.
8.
I have taken into account the Department’s policy as set out in PAM3,
conscious of the role of
Departmental policy in the
Tribunal. I have noted the
following particular points in relation to the evidence that
policy suggests
will assist me form a view
whether Mr Ludgero has the requisite record of
achievement:
. National and
international rankings
. Membership of
national sporting teams;
. Results in
international competitions or tournaments;
. Statements from
international sporting bodies;
. Sporting
scholarships received;
. Newspaper and
magazine articles attesting to achievements; and
. Links to any
reputable websites which refer to the applicant’s sporting
achievements.
9.
The international focus of the criterion and the suggested evidence is
apparent, and it is essential that
international recognition
be assessed. I
invited Mr Ludgero to explain the way the sport is organised, including
for
international events and competition.
10.
First, I understand from Mr Ludgero that BJJ athletes in competition will
represent a ‘team’, although after
Mr Ludgero
elaborated on how this
works, I understood that the term ‘team’ was more akin to a
‘stable’ or
‘school’.
One’s membership of a team
is dictated by who a person’s ‘coach’ is. Mr Ludgero also
explained that
an
athlete’s progress through the ranks is governed by the
coach, and at least in the case of promotion to
black belt, by other
athletes
within the team who hold that rank.
11.
Mr Ludgero’s team is ‘The Constrictors’. This is his
father’s team. As I understand it, Mr Ludgero’s
father
developed an
innovative approach to BJJ grappling techniques arising out of his loss of some
digits to a boa
constrictor resulting
in limitations on grip. This is where the
name of the team came from. As I further
understand it, in the ordinary course,
Mr Ludgero
will always be a member of ‘The Constrictors’ team. He
will
compete at tournaments for that team, even though he might
be the only
member of the team at the
tournament. In this way, BJJ athletes do not represent
their country at international competitions,
but rather
their ‘team’
in the sense of school or stable.
12.
As to the international arrangement of the sport, the situation appears
complicated. There is no single
recognised international
federation governing
the sport. It is not an Olympic sport. Mr Ludgero explained that
the
‘big’ countries that participate
in the sport are Brazil, the United
States and Australia.
13.
The International Brazilian Jiu Jitsu Federation (IBJJF) is a private entity
owned by the family of the
founder of the sport, and
my impression of Mr
Ludgero’s evidence that it is the pre-eminent body that
organises the
sport internationally. The IBJJF
organises international tournaments and
maintains a ranking
system for athletes that may be accessed on the internet. Another international
operator is the ADCC (Abu
Dhabi Combat Championships),
although that entity also incorporates other sports that use grappling
techniques.
Mr Ludgero mentioned that dissatisfaction with the way the sport is
organised internationally may
mean that a third player will
be on the scene soon
to pursue Olympic accreditation.
14.
In Australia, there are State federations (for example the Australian
Federation of Brazilian Jiu Jitsu
Western Australia) that
either work
cooperatively or report to the national body: the Australian Federation of
Brazilian Jiu Jitsu. The Australian national
body has been affiliated with the
IBJJF previously, but is not at
present.
15.
As mentioned above, Mr Ludgero’s record of exceptional and outstanding
achievement must be
‘internationally recognised’.
Achievement in a
sport that has not been recognised at an international level
would
therefore not meet the criterion.
16.
In my view, the appropriate way to assess Mr Ludgero’s international
recognition is through events
organised by the IBJJF,
including his global
ranking, and to a lesser extent the ADCC.
17.
As to IBJJF competition, at the approximate time of the visa application, Mr
Ludgero had achieved
success at the IBJJF ‘Pan
Pacific Championship’
in 2016 where he won first place in his class, and third place
in the ‘no
gi’ competition
(where athletes compete without wearing traditional jiu
jitsu robes). In 2017 Mr
Ludgero placed first in the ‘no gi’
competition and third in his class.
18.
I noted that the delegate declined to place any weight on results obtained by
Mr Ludgero after the date of
the visa application.
While I recognise that the
visa criterion under consideration is to be satisfied at the time
of the visa
application (22 May 2017),
the well-established principle in Bretag v
Immigration Review Tribunal
[1991] FCA 582 permits me to take into account
events after the date of the visa application if they rationally
inform me about
matters at the time
of the visa application. See also Singh v MHA [2018]
FCA 1337 at [13] -
[14]. I have taken into account Mr Ludgero’s 2017
results and noted he mentioned they were essentially
repeated again in
2018.
19.
Mr Ludgero explained that the Pan Pacific championship is always held in
Australia, but athletes travel to
Australia to compete,
for example from the
United States and Brazil. Mr Ludgero explained there is also a Pan
American
championship. By participation
in these championships, and others, an athlete
can accumulate
points which will ultimately lead to an invitation to participate
in
the IBJJF World Championships.
20.
Mr Ludgero has not competed in the United States. He has competed with success
in his home country,
Brazil, but not recently. He had not secured an invitation
to compete in the IBJJF World Championships at the
time of the visa application
or subsequently.
21.
As to why he has not secured an invitation to compete in the World
Championships or actually competed
in the World Championships,
Mr Ludgero
explained that the difficulty for him is that there is insufficient high-
level
competition in Australia to attract enough
points to be invited. Mr Ludgero
explained that he has been
unable to travel (for example to the United States)
to compete in competitions
to gain the required points for
financial reasons and
due to his commitment to his coaching role in Australia. As I understand it,
American
athletes may be able to find enough tournaments within the United
States to attract points to compete in the
World Championships.
22.
I explained to Mr Ludgero that given the nature of the sport as an emerging and
non-mainstream sport, I
may consider that regional
success at the Pan Pacific
championships in Australia may be insufficient to
demonstrate an internationally
recognised record of
exceptional and outstanding achievement, where it has
not
led to invitation or participation at the World championships. I explained
that
in the context of his sport, I
may conclude that his lack of World Championship
invitation or competition may indicate that
he lacks the
required international
recognition of exceptional and outstanding achievement, at the time of the visa
application.
23.
In response to this concern, Mr Ludgero explained again why he had not
participated in the World
Championships, drew attention to
his success in Brazil
in 2012 at a competition that attracted international
athletes and developed his
point about success in competition
and international rankings being less
important
than a person’s overall development and reputation on account of
BJJ being
a martial art.
24.
Mr Ludgero also drew attention to his success in the ADCC competition in 2017. That competition was
held in Australia, with such
competitions held in Australia
every 2 years. As I understand it, based on Mr
Ludgero’s explanations,
the ADCC is based in
Abu Dhabi where BJJ is considered an important component of
military and para-military training. Abu Dhabi hosts a significant
international
competition. Mr Ludgero has not
competed in Abu Dhabi, and had not
competed in any ADCC competitions other than the one held in
Australia.
25.
As to the other aspects of the evidence that the policy suggests I consider, I
recognise that participation
in national teams is
not really an appropriate test
given the structure of the sport. I have noted supporting
statement from a
representative of the
Australian Federation of Brazilian Jiu Jitsu (WA)
addressing the high
regard with which Mr Ludgero is held within the Western
Australian
BJJ community. As to scholarships and
sponsorship, I accept Mr
Ludgero’s evidence that he attracts sponsorship for clothing,
equipment,
supplements and entry fees but has not secured support for international travel
for competition. He did not
know whether
other athletes are able to secure
sponsorship for international travel. I have taken note of Mr
Ludgero’s
social media presence
as provided to me in his submissions.
26.
I turn to consider Mr Ludgero’s international ranking on the IBJJF
system. The delegate had noted that at
the time of the
application, Mr Ludgero
was ranked 217th in the Male Adult Black Belt division. While this
is
very impressive, it does not accord with the requirement that the
international
recognition be exceptional and
outstanding. Since then, Mr
Ludgero’s ranking on the IBJJF system has dropped to 808, but as
discussed
with
Mr Ludgero at the hearing I place no adverse weight on his current ranking
where the global pandemic has
prevented
travel even for Australian competition,
and I must focus in any event on the time of the visa
application.
27.
Finally, I note the delegate’s remarks concerning Mr Ludgero’s rank
as a holder of a black belt. With the
assistance
of Mr Ludgero’s
explanation as to how the ranking system works within BJJ, I think the delegate
may have misunderstood the
significance of the fact that Mr Ludgero does not
hold higher ranking within the
black belt classification. Essentially, while
the
black belt itself is awarded in recognition of skill and discipline
by the
coach of the ‘team’ and other black belt holders
within the team (Mr
Ludgero mentioned that his black
belt was withheld for a year because other
black belt holders within the Constrictor
team wished to
demonstrate that he did
not receive it because of his father), progression through the ranks within the
black
belt
turns on the effluxion of time, provided one continues to train. It
is explained that Mr Ludgero will not be
eligible for the 9th degree
black belt until he is 69 years of age. It is not possible for Mr Ludgero to
hold a
higher rank within the black belt classification
on account of his age. I accept this evidence, and recognise that
Mr Ludgero holds the highest rank it
is possible for him to hold
under this system.
28.
I return, as I must, to the issue of international recognition. As an analogy
only, I note that in the matter of
Singh, a case concerning a wrestler
who had competed in both India and Australia, but did not appear on the
world
ranking system, the Tribunal
was not satisfied that competing in national
competitions in two countries
of itself necessarily translated to an
internationally
recognised record of exceptional and outstanding
achievement. This approach was not disturbed by the court on appeal: Singh v MIBP
[2017] FCCA 2992.
29.
In Mr Ludgero’s case, while I accept that the IBJJF Pan Pacific
Championships and the Australian ADCC
event is likely to have
attracted some
athletes from outside Australia, given the size and non-mainstream
nature of the
sport, I consider that participation
in World championship events such as the
IBJJF World
Championships and the ADCC championship in Abu Dhabi is key. Mr
Ludgero’s
absence from the World
Championship events hosted either by the
IBJJF or the ADCC indicates to me that he does not hold the
internationally
recognised record of exceptional and outstanding achievement that is required to
satisfy the
visa criterion. I am reinforced in
this reluctant conclusion by the
ranking under the IBJJF system held by Mr
Ludgero at the time of the visa
application. I use the
term ‘reluctantly’ because it is clear from
Mr Ludgero’s
profile documents and the references of his students and
supported that he is very well regarded and highly
respected athlete, and has
every potential of attracting an internationally recognised
record of
exceptional and
outstanding achievement in the future. My finding turns on
international recognition, as it must, and
should not
detract from Mr
Ludgero’s skill and expertise as an athlete.
30.
I have also considered carefully Mr Ludgero’s claim that he should also
be recognised as a coach. In this
regard, Mr Ludgero
is employed at the Mach 1
Fight Club in Perth. I have noted the letter of support offered by
Mr Heske in
that regard, including
the letter provided after the hearing. It is also
apparent from the references I
have considered that Mr Ludgero has enthusiastic
support amongst his students in Perth.
31.
The visa criterion however again requires not only that Mr Ludgero is an
excellent coach (which I accept
he is), but that as a coach
he has an
internationally recognised record of exceptional and outstanding
achievement. This is a high bar, which I do not consider
is met in Mr Ludgero’s case. I
have taken into account
Mr Ludgero’s association with the training of two
world champions
from Western Australia, at blue belt and
brown belt level. I
understand that these athletes achieved their world champion status
in Las Vegas
and were
accompanied to Las Vegas by Mr Heske. While I accept that Mr Ludgero
has had significant influence and
input
into the training of these world
champions, I am not satisfied on the evidence before me that it follows
that Mr
Ludgero therefore
holds an internationally recognised record of exceptional and
outstanding
achievement as a BJJ coach.
32.
After considering all the evidence before me, I have formed the view that it
cannot be said that Mr
Ludgero holds an internationally
recognised record of
exceptional and outstanding achievement as an athlete
or a coach at the time of
the visa application.
33.
This is a difficult finding to pronounce in circumstances where it is clear
that Mr Ludgero is a highly gifted,
disciplined and
well-respected athlete, and
so I emphasis that my finding in this regard turns on the need
within the
Regulations for international
recognition of exceptional and outstanding
achievement. I have
essentially decided that this cannot be satisfied in the
absence
of invitation to or competition in world
championship events (in the
context of this sport), and in light of Mr Ludgero’s global
ranking under
the IBJJF
system at the time of the visa application.
34.
I find that at the time of application, the criterion provided for at
cl.858.212(2)(a) of Schedule 2 to the
regulations was not
satisfied, and so
cl.858.212 is not satisfied. As this is an essential criterion for the grant of
the visa, the visa must be refused.

DECISION

The Tribunal affirms the decision not to grant the

applicants Distinguished Talent (Residence) (Class BX)
Subclass 858
visas

Marten Kennedy

Member

[1] ...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.