1420927 (Migration) - [2016] AATA 3233

1420927 (Migration) [2016] AATA 3233 (4 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nunzio Toscano
CASE NUMBER:  1420927
DIBP REFERENCE(S):  BCC2014/2422781 BCC2014/2431270
MEMBER:Marten Kennedy
DATE:4 February 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the applicant meets the following criteria:
·cl.858.212(2)(a) of Schedule 2 to the Regulations

Statement made on 04 February 2016 at 6:04pm

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 December 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).
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.
The applicant applied for the visa on 24 September 2014. He is a musician, dancer and pandeiro maker. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(2)(a), finding that while the applicant’s abilities were noteworthy, he did not have an internationally recognised record of exceptional and outstanding achievement in the arts. That is also the issue that I must decide.
CONSIDERATION
Application and supporting documentary evidence
The applicant was nominated for the visa by Mr Michael Bose, who described that he has worked as a full time musician for 15 years. Mr Bose is said to have gained an undeniable reputation as a teacher and performer and is considered to be one of Australia’s experts and specialists in Brazilian percussion. Mr Bose in turn describes the applicant as a person known worldwide as a pandeiro player and one of the few people in the world to have been selected into the drum section of the Beija Flor Samba School in Rio de Janeiro. Mr Bose elaborates in a statement of 23 September 2014, emphasising the importance of the applicant’s experience with Beija Flor Samba School, and also describing the applicant as a skilled instrument maker
A curriculum vitae lodged in support of the application sets out the applicant’s educational experiences listing studies in Cuban drumming, Conga and studies in Brazil. From 2012, the applicant indicates he has organised workshops in Italy, Germany and Brazil, participated in an International Samba Festival in Cologne and worked with a Samba band in Sydney. At the time of application, the applicant stated that he was working in Perth with a variety of latin music and dance groups and teaching at drumming workshops.
I have had regard to the many written references provided in support of the application for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1420927 (Migration)

Details

AGLC: 1420927 (Migration) [2016] AATA 3233
Case: [2016] AATA 3233
Decision Date: 4 February 2016

CaseChat Overview and Summary

In the case of 1420927 (Migration), the applicant, a highly skilled Samba musician, dancer, and pandeiro maker, sought a Distinguished Talent (Residence) (class BX) visa. The delegate refused the application, finding that while the applicant's abilities were noteworthy, he did not have an internationally recognised record of exceptional and outstanding achievement in the arts. The applicant sought review of the decision by the Tribunal, which was tasked with determining whether the applicant met the criteria under cl.858.212(2)(a) of Schedule 2 to the Regulations.

The Tribunal examined the applicant's extensive experience and recognition within the Samba music community, including his participation in the Beija Flor Samba School in Rio de Janeiro, his involvement in international workshops, and his performances and teachings across various countries. The Tribunal also noted the applicant's skill as a percussionist and instrument maker, as well as the support from various Samba and Latin music groups. Despite the delegate's findings, the Tribunal found that the applicant's achievements and recognition were indeed of an exceptional and outstanding nature, warranting international recognition.

After considering the evidence and the communication challenges faced during the initial hearing, the Tribunal concluded that the applicant's internationally recognised record of exceptional and outstanding achievement in the arts was evident. The Tribunal remitted the matter to the Department for reconsideration, directing that the applicant met the relevant criteria. The Tribunal's decision hinged on the applicant's internationally recognised status as a skilled Samba musician and his significant contributions to the art form.

The final orders of the Tribunal were to remit the application for a Distinguished Talent (Residence) (class BX) visa to the Department for reconsideration, with the direction that the applicant met the criteria under cl.858.212(2)(a) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Without recounting all particulars of the supporting documentation before me, I single out a letter of support from the ‘General Director of Carnival and Harmony’ of the GRES Beja Flor de Nilopolis, translated from Portuguese. The letter attests to the applicant’s skill and professionalism,activities in a number of countries, and participation in the official parade of the school. Further evidence provided to me addresses the significance of the Beja Flor School in the applicant’s artistic field.Hearings and evidence There have been two hearings in this review. At the first hearing, I received evidence from a number of witnesses (identified in the Tribunal’s records) to the effect that the applicant is recognised as a highly skilled Samba musician and teacher in Perth. I accept that the applicant is highly skilled, and recognised as such in Perth. I also rely on the evidence of the witnesses of the first hearing to conclude that Samba music is recognised in growing segments of our community as a distinct and popular field of music, and therefore the arts.. This finding is significant as I assess whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts. In light of the evidence of the witnesses of the first hearing, and also the evidence of the applicant at the second hearing (elaborated upon below), I proceed on the basis that Samba music is a distinct and internationally recognised art form. After the first hearing, I received a submission from the applicant’s representative to the effect that the interpreting had been inadequate. The Tribunal had engaged the services of an accredited Portuguese interpreter, but it was submitted that European Portuguese and Brazilian Portuguese had significant differences, and this had caused difficulty I may not have perceived. In any event, I had also perceived some difficulty in conversing with the applicant. The hearing was also conducted by video conference. The applicant’s first language is Italian (although he is fluent in Brazilian Portuguese and had requested an interpreter in Portuguese). I agreed after reflecting on the hearing that the communication between the applicant and I had not been adequate in these circumstances. A further hearing was arranged. On this occasion I was in Perth and the hearing was face to face, with an accredited Italian interpreter (at my suggestion). The communication between the applicant and the Tribunal was without issue at the second hearing. I explored with the applicant what particular field of the arts he identified with. The applicant confirmed he identified as a Samba musician, and more specifically a percussionist. I explored the concept of ‘World Music’ with the applicant, including whether he had been invited to participate in WOMAD (World of Music Adelaide), indicating that I understood that event to be the most significant ‘World Music’ event in Australia[1]. The applicant confirmed he had not been invited to participate in WOMAD. The applicant told me he was not familiar with the festival, and considered the term ‘World Music’ to be generic, accepting that Samba music may fall within it. The applicant hypothesised that if the event was themed he would expect to be invited if the theme was Brazilian music (I do not understand the event to have themes). The applicant confirmed he had not participated in that festival, but outlined a number of other Samba events around Australia where he had performed. The applicant emphasised that he considered himself to be a ‘Samba musician’ rather than a World Music performer.[1] The ABC reports that 95 000 people attended WOMAD in 2015, with 400 artists from around the world participating: “WOMADelaide organisers say weather, strong program pulled record crowd in 2015” Malcolm Sutton and staff 24 Sep 2015, 8:20am

Decision

Reasons for decision

For my part however, I have formed the view that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts. I will remit the matter to the Department on that basis.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the applicant meets the following criteria:·cl.858.212(2)(a) of Schedule 2 to the RegulationsMarten KennedyMember

Ratio Decidendi

Legal Principle Established

The applicant applied for the visa on 24 September 2014. He is a musician, dancer and pandeiro maker. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(2)(a), finding that while the applicant’s abilities were noteworthy, he did not have an internationally recognised record of exceptional and outstanding achievement in the arts. That is also the issue that I must decide.CONSIDERATIONApplication and supporting documentary evidence The applicant was nominated for the visa by Mr Michael Bose, who described that he has worked as a full time musician for 15 years. Mr Bose is said to have gained an undeniable reputation as a teacher and performer and is considered to be one of Australia’s experts and specialists in Brazilian percussion. Mr Bose in turn describes the applicant as a person known worldwide as a pandeiro player and one of the few people in the world to have been selected into the drum section of the Beija Flor Samba School in Rio de Janeiro. Mr Bose elaborates in a statement of 23 September 2014, emphasising the importance of the applicant’s experience with Beija Flor Samba School, and also describing the applicant as a skilled instrument maker A curriculum vitae lodged in support of the application sets out the applicant’s educational experiences listing studies in Cuban drumming, Conga and studies in Brazil. From 2012, the applicant indicates he has organised workshops in Italy, Germany and Brazil, participated in an International Samba Festival in Cologne and worked with a Samba band in Sydney. At the time of application, the applicant stated that he was working in Perth with a variety of latin music and dance groups and teaching at drumming workshops. I have had regard to the many written references provided in support of the application for the visa from Samba and latin music and dance performance groups based in Western Australia, and others from Sydney. They statements outline the skill of the applicant, describe him being booked as a professional performer for events in Perth. I have also had regard to letters of support from Italy and Germany outlining the applicant’s work in teaching and performing, and crafting Pandeiro instruments. I have also taken into account various photographs of the applicant engaged in his performances. Without recounting all particulars of the supporting documentation before me, I single out a letter of support from the ‘General Director of Carnival and Harmony’ of the GRES Beja Flor de Nilopolis, translated from Portuguese. The letter attests to the applicant’s skill and professionalism,activities in a number of countries, and participation in the official parade of the school. Further evidence provided to me addresses the significance of the Beja Flor School in the applicant’s artistic field.Hearings and evidence There have been two hearings in this review. At the first hearing, I received evidence from a number of witnesses (identified in the Tribunal’s records) to the effect that the applicant is recognised as a highly skilled Samba musician and teacher in Perth. I accept that the applicant is highly skilled, and recognised as such in Perth.