1409075 (Migration)

[2015] AATA 3955

1409075 (Migration) [2015] AATA 3955 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francesco Chiari

CASE NUMBER:  1409075

DIBP REFERENCE(S):  CLF2013/176371

MEMBER:John Cipolla

DATE:18 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2015 at 3:02pm

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 6 May 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 29 July 2013.

3. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant made an application for a Subclass 858 Distinguished Talent visa on 29 July 2013. The applicant was applying for a Distinguished Talent visa based on his achievements in the field of Film Maker. The applicant was nominated by the Bharatiya Vidya Bhavan Australia.

5. A delegate of the Department of Immigration refused the visa application in a decision made on 6 May 2014. Recourse to the delegates decision record indicates that the delegate noted that subclause 858.212 (2)(e) required that an applicant for a Subclass 858 visa needed to produce a completed Form 1000 attesting to the applicants record of achievement and that this form must be completed by an Australian organisation who has a 'national reputation' in relation to the area.  The delegate was not satisfied that this was the case and refused the visa application on this basis.  In addition to this the delegate was not satisfied that the applicant yet had an international reputation as a Film Maker/cinemaphotographer.

6. Annexed to the Form 1000 submitted to the Department was a letter from Bharatiya Vidya Bhavan dated 26 July 2013.

7. The applicant lodged a review application with the Migration Review Tribunal on 22 May 2014.

8. Recourse to the Departmental file indicates that at time of application a large number of documents were provided by the applicant and the nominator. These documents have been referred to in the Departmental decision record. Recourse to the documents indicates that the applicant was awarded a number of awards during his time at the Sydney film School including best cinematographer in drama award, the audience award, and best cinematography award. The applicant has worked on a large number of short films and some major feature films whilst in Australia and a number of short films in Italy. DVD showcasing the skill set of the applicant was provided to the Department at time of application.

9. Reference to folio 72 on the Departmental file which is a further attestation to the form 1000 provided by the applicant's sponsor Bharatiya Vidya Bhavan Australia indicates that Bhavan Films a division of Bharatiya Vidya Bhavan Australia is an internationally renowned filmmaking outfit. That the film unit of the sponsor has been producing video films for the past five years. That the applicant successfully completed a one-year traineeship with Bharatiya Vidya Bhavan Australia and demonstrated exceptional and distinguished talent in his craft as a filmmaker and cinematographer. The attestation also notes the listed productions and assignments that the applicant had taken part in since being in Australia.

10. The applicant was invited on 18 August 2015 to attend a Tribunal hearing scheduled for 21 October 2015. On 25 August 2015 the applicant wrote to the Tribunal seeking that the hearing be rescheduled. The applicant noted that he had been chosen by the peak industry organisation for cinematographers the Australian Cinematographers Society for an attachment to work on the United States television series Hunters produced for Universal Pictures which would be filming in Melbourne from 14 October 2015 to 2 November 2015. The Tribunal agreed to the postponement of the hearing and the hearing was rescheduled to 5 November 2015.  On 18 October 2015 the applicant sought a further postponement of the hearing because of ongoing work with the television series Hunters. The Tribunal consented to a further rescheduling of the hearing. The hearing was rescheduled to 4 December 2015.

11. At time of review the applicant has provided an updated credits list of all films that he has been involved in making and involved in the capacity of cinematographer. Also provided was a reference from Ron Johanson the National President of the Australian Cinematographers Society noting that the applicant had been mentored with significant Australian cinematographers to give the applicant real-world experience and improve his skill set.

12. At the outset of the review hearing on 4 December 2015 the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to refuse the applicant a Distinguished Talent Visa. The Tribunal noted that a decision-maker needed to be satisfied that the applicant had an international reputation in the area for which they had been sponsored namely the arts as a Filmmaker/Cinematographer and further to this that the sponsoring organisation had a national reputation in the same area. The Tribunal noted the basis of the Departmental refusal of the visa application.

13. The applicant advised that he first came to Australia as the holder of a Working Holiday visa in 2010, a visa that he held for one year. The applicant then successfully applied for student visa and attended the Sydney Film School completing a one-year course in December 2011.

14. The Tribunal asked the applicant about his sponsor Bharatiya Vidya Bhavan Australia and the applicant advised that this was the Indian Cultural Association that supported the arts. It was represented around the globe and promoted international artists from around Australia and promoted Indian culture and promoted humanitarian ventures. The applicant stated during his internship with this organisation he was involved in film production and gave the example of the Holi Mahotsav Festival which is held each March/April at Darling Harbour and promotes arts, music and dancing from a broad range of cultures from all over the world. The applicant was involved in this Festival over 2012, 2013 and 2014. The applicant advised that many of the films he had been involved with were able to be viewed on You-tube. The applicant stated that Bharatiya Vidya Bhavan Australia wanted to sponsor him for an Operational Trainee visa for one year in 2012 to work as a filmmaker/cinematographer.

15. The Tribunal asked the applicant what he believed the national reputation of his sponsor had with regard to filmmaking. Once again the applicant stated that Bharatiya Vidya Bhavan Australia was responsible for promotion of the arts, filmmaking, the production of documentaries and the promotion of humanitarian causes. The Tribunal advised the applicant that there appeared to be a deficiency of evidence pertaining to the sponsor having a National reputation as a film maker and also with regard to the applicant having an International reputation as a film maker/cinematographer.  The Tribunal noted that most of the evidence pertaining to the applicant’s talents were national and not international.  The applicant was given an opportunity to collate evidence post hearing pertaining to his nominator having a national reputation and to the applicant having an international reputation.  The applicant was given until the 16 December 2015 to provide such evidence As at 18 December 2015 no such evidence has been forthcoming.

    ASSESSMENT AGAINST THE CRITERIA

16. There are various elements within cl.858.212(2) which need to be satisfied.  The first is whether the applicant has an internationally recognised record of exceptional and outstanding achievement in one of the areas set out in cl.858.212(2)(a).  The applicant’s nominated area is as a film maker/cinematographer.

    Internationally Recognised Record

17. In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary: see Gaffar v MIMIA[2000]FCA293 where the court considered the phrase “exceptional record of achievement” in an earlier category of Skilled Residence Visa.

18. The ordinary meaning of “record” does not require that the record be quantifiable as large or lengthy or as having been sustained over a period of time.  A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA and Anor[2007]FMCA664.

19. It is apparent from the material provided to the Tribunal at review and provided with the visa application that the applicant is a film maker and cinematographer in the early stages of his career. The applicant has been able to obtain some work in Australia as a cinematographer and film maker.  The applicant advised at the hearing that he has undertaken film making for his sponsor but in recent times has not had much interaction with his sponsor.  The evidence indicates that the applicant may well be on the cusp of a successful international career in his chosen occupation but has not yet been able to establish to the Tribunals satisfaction that he has an international reputation as a filmmaker and cinematographer.

20. On the basis of the evidence provided, however, I cannot be satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in film making and cinematography.  Whilst noting the applicant has worked in his chosen field in Italy whilst a student and post completion of his studies the evidence does not indicate that this work established the applicant’s international reputation in his chosen field.

21. In summary, based on the evidence before it the Tribunal cannot be satisfied that at the time of the visa application, the applicant had an internationally recognised record of exceptional and outstanding achievement as a film maker and cinematographer.  Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.

22. The Tribunal acknowledges that the applicant is well respected by many people who have supported his application and that his talents have been recognised by those he has studied and worked with in Australia. However, the Tribunal is unable to find on the evidence before it that the applicant satisfies the requirements for a Distinguished Talent Visa.

    CONCLUSION

23. As the Tribunal has found that the applicant does not satisfy the requirements of cl.858.212, the decision under review must be affirmed.

    DECISION

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

    John Cipolla
    Senior Member