1418064 (Migration)

[2015] AATA 3494

1418064 (Migration) [2015] AATA 3494 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Antonella Serrao

CASE NUMBER:  1418064

DIBP REFERENCE(S):  CLF2014/46284

MEMBER:Steve Georgiadis

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 October 2015 at 12:38 pm (Adelaide time)

DATE OF WRITTEN RECORD:                15 October 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa to the Department of Immigration and Border Protection for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 858 (Distinguished Talent) visa:

·cl 858.212(2)(e) of Schedule 2 of the Regulations.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 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. At the hearing on 8 October 2015 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 25 March 2014. The delegate refused to grant the visa as the delegate considered the evidence was insufficient to demonstrate that the review applicant’s nominator, Mr Salvatore (Sammy) Pizzata, has a national reputation in the field of the Arts (Music) and therefore did not satisfy cl. cl.858.212 - specifically cl.858.212(2)(e), or cl.858.212(4) relating to specialised assistance to the Australian Government in matters of security.

4. The visa applicant appeared before the Tribunal on the hearing scheduled on 8 October 2015, having the hearing earlier scheduled on 19 August 2015 adjourned for reasons of ill health of a close relative.  The Tribunal received oral evidence from Ms Serrao, the visa applicant, and the hearing was conducted with the assistance of an interpreter in the English and Italian languages.

5. The applicant was represented in relation to the review by her registered migration agent, Mr Scarcella.

6. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration on the basis that the visa applicant satisfies the criteria under cl. 858.212(2)(e). That means, Ms Serrao, the decision is successful from your perspective but I want to provide the following reasons for the decision if you bear with me.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The application was made on the basis of the applicant’s skills and achievements in her field of Arts, as a musician. She was sponsored by Mr Pizzata, who is an Australian citizen and the requisite Form 1000 was provided with the application.

8. 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, or have provided specialised assistance to the Australian Government in matters of security.  There is no suggestion in this case that the applicant’s claim falls in this latter category of security assistance.

   According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention “is to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories but who will make substantial contributions to the Australian community because of their international achievements.”  [Relevant sections from the Department’s Policy Advice Manual (PAM) 3 are attached at the end of this decision.]

9. The Tribunal is satisfied that this is a reviewable decision under the Act and that the applicant has made a valid application for review under s.347 of the Act.

10. The central issue in this review is whether the visa applicant meets the requirements of cl.858.212(2)(e) of the Regulations which is the only criterion considered by the delegate, as set out in the delegate’s decision of 30 October 2014.  Specifically, subparagraph (2)(e) requires that the applicant has an internationally recognised record of exceptional and outstanding achievement in one of the relevant areas, specifically in this case, the Arts (Music).  But subparagraph (2)(e) requires also the production of a completed approved Form 1000 in which the applicant’s record of achievement is in an area as mentioned in subparagraph (2)(a) that is, the Arts (Music), and is attested to by an Australian citizen (in this case) who has a national reputation in relation to the area.  So the specific criterion being considered here is in respect of the sponsor, Mr Salvatore (Sammy) Pizzata, and whether he has a national reputation in relation to the area of the Arts, specifically Music. 

11. On that point the Tribunal is satisfied, from the evidence provided at the hearing by Ms Serrao and the documentary evidence provided in the written submissions under cover letter of the 19 August 2015 on behalf of the applicant, that Mr Pizzata is a musician, musical director, arranger and composer as well as an instrumentalist on piano, keyboards and accordion and is therefore considered to be in the area of the Arts, specifically Music. 

12. The Tribunal is further satisfied from the evidence provided by Ms Serrao, that this is in the same area as the visa applicant given the Tribunal accepts her evidence of her involvement as an instrumentalist and singer (specifically instrumentalist on guitar, percussion and keyboards) and also as a composer.  The Tribunal is satisfied that it is in relation to the same area relevant to the area of the nominator. 

13. Turning it’s considerations now to whether Mr Pizzata has a national reputation [in the area], the Tribunal gives weight to the documentary evidence provided on behalf of the applicant in this application as set out in the written submissions under cover letter of 19 August 2015 which attach a number of supporting documents by way of reference letters from a variety of people involved in the Australian and international music industry. 

14. The Tribunal accepts from this evidence and also the oral evidence provided by Ms Serrao at the hearing, that Mr Pizzata has a musical career spanning some 40 years in the Australian music industry as an instrumentalist and also as a musical director, arranger and composer. The Tribunal accepts that he has performed alongside important national and international acts as mentioned in the written submissions, but particularly as supported by the documentary evidence of letters of support, including the involvement in musical productions ranging back to 1993 and more recently in music productions such as the Elvis Experience, Viva Las Vegas show that toured in Australia in 2014, in at least the states of South Australia and New South Wales. 

15. The Tribunal also accepts that Mr Pizzata has been involved very widely in the music industry at a range of levels in his capacity as musical arranger and instrumentalist over many years and gives weight to other documentary evidence, including reference letters from Mr Hank Marvin, guitarist of the Shadows, in support of his national reputation in the field of music.

16. The Tribunal places substantial weight to Mr Pizzata’s membership of the Music Arrangers Guild of Australia (MAGA) and specifically the letter of support at Attachment 5 in the written submissions of 19 August 2015 from the Vice President of MAGA, Mr Greg Schultz in which he attests that members of MAGA must be assessed against a complex competency test, which Mr Pizzata has satisfied.  The Tribunal notes the comments that Mr Pizzata has demonstrated that he is part of ‘an elite circle of fine musicians that is respected and admired in the music industry’ and specifically in Australia.

17. Having considered the available evidence before it, as discussed above, the Tribunal accepts that Mr Pizzata has a national reputation in the relevant area of the Arts (Music specifically) and that as he is the nominator who has attested to the applicant’s record of achievement in that area on the approved Form 1000.  The Tribunal finds that the visa applicant satisfies the criteria under cl. 858.212(2)(e).

18. For these reasons the Tribunal will remit the matter for reconsideration, with a direction that the applicant satisfies the criteria for a Distinguished Talent (Residence) (Class BX) visa limited to the criterion under cl. 858.212(2)(e) and for the Department to consider the remaining criteria in respect of the Distinguished Talent (Residence) (Class BX) visa. 

    The time is 12.38 pm [Adelaide time].

    Steve Georgiadis
    Member

    
    

    Relevant extracts from the Department’s Policy Advice Manual (PAM) 3:

    10 Nomination

    10.1 Must be nominated
    For 858.212(2)(e), see the regulation 1.13 definition of nominator.

    10.2 Nomination form

    The approved nomination form for the Distinguished Talent visa is form 1000 Nomination
    for distinguished talent. For application lodged on or after 1 July 2006, the completed
    nomination form must accompany the application.
    The information provided by the nominator on the form will be taken into account when the
    visa application is assessed.
    Prospective applicants and nominators should be advised that the testimony provided as part of the nomination should be comprehensive and reflect the nominator's personal knowledge of the applicant's exceptional and outstanding achievements in the relevant area. Additionally, the nominator should address the standing the applicant has in their field, particularly their standing internationally. The nomination should also include a resume of the nominator's own standing in that field.
    An offer of employment is not, by itself, sufficient to satisfy this criterion. If the intention of the nominator is to employ the applicant in Australia, the other employer sponsored permanent residence programs such as the Employer Nomination Scheme (ENS) and the Regional Sponsored Migration Scheme (RSMS) may be more appropriate and should be considered as the preferred option.

    10.3 Status of nominator

    To meet the Schedule 2 criteria, the form 1000 must be completed by an Australian
    citizen, Australian permanent resident, an eligible New Zealand citizen, or an Australian
    organisation having national reputation relevant to the area of the applicant's achievement
    and testifying to the applicant's record of achievement. For Schedule 1 requirements, see
    section 3.3 Form 1000 to be lodged with application.

    10.4 Meaning of Australian organisation

    In the absence of policy guidelines, the term Australian organisation may be given a broad
    interpretation.

    Clause 858.212

    (1) The applicant meets the requirements of subclause (2) or (4).

    (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.

    [(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note]

    (4) The applicant meets the requirements of this subclause if, in the opinion of the
    Minister, acting on the advice of:
    (a) the Minister responsible for an intelligence or security agency within the meaning of
    the Australian Security Intelligence Organisation Act 1979; or
    (b) the Director-General of Security;
    the applicant has provided specialised assistance to the Australian Government in matters of
    security.