MIGRATION - Temporary Activity (Class GG) visa - Subclass 408 (Temporary Activity) - elite player - email from administrative body provided with application not a letter of endorsement as required - additional information, letter and other documentation provided to tribunal - decision made without hearing necessary - decision under review set aside and remitted

Administrative Review Tribunal Act (Cth), ss 9(a), (b), 106(1), (3)(a), (b)(i)

Migration Act 1958 (Cth), ss 65, 348A

Migration Regulations 1994 (Cth), r 2.57, Schedule 2, cl 408.219A, 408.222(1), (3)

EIZ20 v Child Support Registrar [2023] FedCFamC2G 637

1. This is an application for review of a decision made by a delegate of the Minister on 3 May 2023 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 2 March 2023. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.
3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 408.219A of Schedule 2 to the Regulations because a letter of endorsement from a national sporting body responsible for administering the sport in Australia was not provided as required by cl 408.222(3)(d) of the Regulations.

1. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.

1. Subsections 9(a) and 9(b) of the Administrative Review Tribunal Act 2024 (the ART Act) specify that the Tribunal's objective is to provide an independent mechanism of review of government decisions that is fair, just, ensures that applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
2. Further, the circumstances in which the Tribunal may reach a decision without a hearing in respect of a reviewable decision is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Section 106(1) provides that the Tribunal may make its decision in the proceedings in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of the subsections (2) to (5) are applicable.
3. Section 106(3) of the ART Act states that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceedings or hearing of the proceeding are the applicant and the non-participating party, the applicant requests the Tribunal to make its decision without holding a hearing or the decision is wholly in favour of the applicant, and the Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
4. On 16 January 2026, the Tribunal invited the applicant to a hearing scheduled for 12 February 2026.
5. On 20 January 2026, the Tribunal invited the applicant to provide the following information by 5 February 2026:
   1. letter of endorsement from Basketball Australia certifying that the applicant has the ability to play at the Australian national level;
   2. copy of Forestville Eagles Basketball Club Inc's most recent Temporary Activity sponsorship approval issued by the Department of Home Affairs;
   3. updated letter from Forestville Eagles Basketball Club Inc confirming that it has agreed to be the sponsor of the applicant, has not withdrawn that agreement and has not ceased to be the sponsor of the applicant;
   4. updated letter of support from Forestville Eagles Basketball Club Inc confirming the activity that the applicant seeks to enter or remain in Australia for, the duties fo the applicant and the dates and locations of the applicant's activities in Australia.
6. On 30 January 2026, the applicant provided the requested information.
7. On the basis of the above information and relevant criteria in ss 106(3)(a) and 106(3)(b)(i) being met, I am satisfied that the only parties to the proceeding are the applicant and a non-participating party. Section 348A of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision for the purposes of the ART Act. I note that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship. I am also satisfied that the matter of whether the applicant meets the requirements of reg 2.72(10)(a) of the Regulations can be adequately determined wholly in the applicant's favour without holding a hearing.
8. According to EIZ20 v Child Support Registrar, it is for the Tribunal to decide whether an application can be adequately determined without holding a hearing.[1] In carrying out its duties, the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues in a review application.
9. In this matter, I am satisfied that the applicant has been given an opportunity to provide additional information and evidence. The information provided by the applicant has allowed the Tribunal to make a decision wholly in the applicant's favour without holding a hearing. The scheduled hearing was subsequently cancelled.
10. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.

1. The issue in this case is whether the applicant meets the stream-specific requirements for an elite player, coach, instructor or adjudicator as per cl 408.222(3) of the Regulations.

'Elite player, coach, instructor or adjudicator' requirements

1. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for the applicant to meet cl 408.219A, which is an essential requirement for the visa. In this case, the applicant seeks to satisfy the 'Elite player, coach, instructor or adjudicator' requirements in cl 408.222(3), which would mean that cl 408.222 would apply to the applicant: cl 408.222(1). The applicant has not claimed to meet the 'Sports trainee' requirements in cl 408.222(2), or any of the alternative requirements in the other clauses.

1. Sub-clause 408.222(3)(a) requires that the applicant seeks to enter or remain in Australia to be a player, coach, instructor or adjudicator in relation to an Australian sporting team or organisation.
2. The Tribunal has before it the Department's file which contains information of the applicant's employment history. Based on this information, I accept that the applicant is a basketball player who commenced his career in college in the United States of America from 2012 to 2015 and continued to play for various clubs in the United States of America and Australia from 2016 to present date.
3. I have considered the applicant's Premier League Player Agreement which confirms that the applicant will play basketball for Forestville Eagles Basketball Club Inc, a club that is a participant in the Basketball South Australia Premier League. Additionally, I have also taken into consideration Forestville Eagles Basketball Club Inc's letter of support dated 22 January 2026 confirming that the applicant will continue to play basketball for the club during the 2026 NBL1 Central season, with the competition running from March to August 2026. Based on this evidence, I am satisfied that the requirements of cl 408.222(3)(a) are met.

1. Sub-clause 408.222(3)(b) requires that the applicant has been invited by a sporting organisation that is lawfully operating in Australia to participate in that activity in relation to an Australian sporting team or organisation.
2. 'Sporting organisation' is defined in reg 2.57 as either an Australian organisation, a government agency or a foreign government agency that administers or promotes sport or sporting events. The terms 'Australian organisation', 'government agency' and 'foreign government agency' are also defined in reg 2.57.
3. Based on the abovementioned letter of support dated 22 January 2026 and the applicant's Premier League Player Agreement, I am satisfied that Forestville Eagles Basketball Club Inc, a participant club of the Basketball South Australia Premier League, is a sporting organisation and that they have invited the applicant to participate in their club as a basketball player. Accordingly, the requirements of cl 408.222(3)(b) are met.

1. Sub-clause 408.222(3)(c) requires that the applicant has entered into a formal arrangement that provides for the applicant to participate as a player, coach, instructor or adjudicator, as relevant, in relation to an Australian sporting team or organisation for a period specified in the arrangement.
2. The applicant has a formal written agreement in place with Forestville Eagles Basketball Club Inc. I am satisfied that the requirements of cl 408.222(3)(c) are met.

1. Sub-clause 408.222(3)(d) requires that the Minister has been provided with a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level.
2. Prior to the delegate's refusal of the applicant's subclass 408 visa application, the applicant had provided to the Department an email from Basketball Australia dated 28 February 2023 confirming that the applicant would be permitted to play basketball in Australia for Forestville Eagles Basketball Club Inc once evidence of his Foreign Player licence issued by FIBA Ocenia was received. Ultimately, the delegate did not accept that the email from Basketball Australia was a 'letter of endorsement' as required by cl 408.222(3)(d) and proceeded to refuse the application. The same email was also provided to the Tribunal shortly after lodgement of the applicant's review application.
3. On 20 January 2026, the Tribunal made its own enquiries into the acceptable format of a letter of endorsement by contacting Basketball Australia.
4. On 22 January 2026, Basketball Australia advised the Tribunal that when international players request permission to play basketball in Australia, they or their nominating club would submit a visa endorsement request to Basketball Australia. As part of this process, once approved, a letter to the world governing body, FIBA is submitted clearing the individual to play, followed by a Basketball Australia letter of endorsement. Based on this information, the Tribunal agrees with the delegate's assessment that the Basketball Australia email dated 28 February 2023 was not a letter of endorsement for visa purposes. Further, the email of 28 February 2023 did not specifically certify that the applicant has the ability to play, coach, instruct or adjudicate at the Australian national level.
5. However, in response to the Tribunal's request for further information, I acknowledge that the applicant has since been able to provide a formal letter of endorsement from Basketball Australia. This letter, dated 23 January 2026, advises that the applicant is an overseas player for Forestville Eagles Basketball Club Inc, competing in the 2026 NB1 Central competition. Basketball Australia confirms in the letter that the applicant has the ability to compete as a player at the National level in Australia and that his participation would also benefit the sport in Australia by raising the standard of the competition. For these reasons, I am satisfied that the requirements of cl 408.222(3)(d) are met.

Sporting organisation passes the sponsorship or support test - cl 408.222(3)(e)

1. Sub-clause 408.222(3)(e) requires that the relevant sporting organisation is either a temporary activities sponsor or a long stay activity sponsor and passes the sponsorship test in relation to the applicant. Alternatively, if the applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the sporting organisation must pass the support test in relation to the applicant: cl 408.222(3)(e).
2. In this case, having regard to the applicant's location at the time the application was made and the proposed length of stay stated on the application form, the sporting organisation is required to be an approved sponsor of the relevant kind and pass the sponsorship test. In summary, a person 'passes the sponsorship test' if the following requirements are met (see cl 408.111):
   • the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and
   • either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information ('adverse information' and 'associated with' have the meanings given in regs 1.13A and 1.13B); and
   • if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.
3. The applicant has provided a copy of Forestville Eagles Basketball Club Inc's Temporary Activities Sponsorship approval notice issued by the Department. This approval is valid from 24 March 2022 to 24 March 2027. Additionally, the club provided a letter dated 22 January 2026 confirming that the club continues to sponsor the applicant and has not withdrawn its agreement to sponsor the applicant. There is no information before me to suggest that there is adverse information known about the club, or a person associated with the club. For these reasons, I am satisfied that the requirements of cl 408.222(3)(e) are met.

1. In light of the above findings, the Tribunal is satisfied that cl 408.222 applies to the applicant.
2. Accordingly, cl 408.219A is met.
3. Given the findings above, the appropriate course is to set aside and remit the matter to the Minister to consider the remaining criteria for the visa.

1. The Tribunal sets aside the decision under review and remits the application for a Temporary Activity (Class GG) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:
   • cl 408.219A of Schedule 2 to the Regulations.

[1] EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023).