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

1. 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).

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 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.

3. 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

4. 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

5. 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.

6. 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.

7. 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.

8. 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

9. 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.

10. 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. 

11. 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.

12. 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.

13. 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

14. I repeated a series of question posed to the applicant at the first hearing as to why he considered he had an international reputation.  The applicant said the reason why he considered he had an internationally recognised record was because he was recognised as being part of the team of the best Samba players in the world.  The applicant said wherever he had travelled, his association with the Beja Flor School has been recognised.

15. The applicant referred to being contacted to participate in festivals in Cologne because of his reputation and association with the school.  The applicant said that the Cologne festival is the most famous Samba festival outside Brazil.  The applicant said that he is considered to be the teacher of other teachers in his field in Italy.  The applicant elaborated on his role at the Cologne festival.

16. I asked the applicant to explain further about his reference at the previous hearing to the significance to being ranked amongst the first 50 percussionists of the Beja Flor school.  The applicant elaborated that there are 400 elements in the Beja Flor, and he has been recognised as a specialist.  The applicant explained that in Brazil, there are approximately 3000 schools of Samba, but Beja Flor is part of a special group of the first 12.  The Beja Flor has won the most world championships, and is the most famous school of Samba in the world.

17. Noting that perhaps Australia and Perth might not readily be described as the hotbed of world Samba music, I asked the applicant why he wanted a permanent visa to live in Australia.  The applicant said he was warmly welcomed by the Samba community and students in Perth.  He described his wish to set up an exchange program between Brazil and Perth.  The applicant said he wished to take his Australian student to Beja Flor, and to bring teachers from Beja Flor to Australia.

18. I asked the applicant if he thought the teachers at Beja Flor had a reputation greater than his.  The applicant described that only one or two teachers made up the commission of Beja Flor.  They may no longer play the Samba music but instead determine who makes up the school and the recognition they are to receive.

19. I asked about a reference to the applicant having a permanent invitation to participate in the school’s activities.  The applicant explained it is not a formal invitation as such, but recognition that he is part of that school, and confirmed he is recognised as part of the school.  Later in the hearing, the applicant explained that but for his immigration issues in Australia, he would be travelling to Brazil for Carnivale to participate with Beja Flor.

20. As to his body of work, the applicant explained that recording of albums, contracting with recording companies and the like is not a feature of his field of music.  The applicant explained he is essentially freelance based on his reputation.  The applicant had not been the headline act at any concerts in his own right, again explaining this is not the way his field of music is performed.  The applicant told me that he had directed Samba music groups to perform in Samba festivals. 

21. I discussed the applicant’s resume of performing in international festivals in Italy, Germany and Greece.  The applicant had decided not to take up an offer to perform in Bali in order to resolve his status in Australia.  The applicant confirmed he had performed in the movie ‘Il Divo’ by Paulo Sorentino.

    Does Mr Toscano have an internationally recognised record of exceptional and outstanding achievement in the arts?

22. I bear in mind that the Court has explained that 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: Zhang v MIMA [2007] FMCA 664.

23. 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.

24. 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:

    ·that applicants should be eminent in the top echelons of their ‘field’;

    ·they should demonstrate extraordinary and remarkable abilities and be superior to others in their ‘field’;

    ·claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement;

    ·a single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as a ‘record of exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future;

    ·an applicant would be expected to have achievements remarkable in relation to that ‘field’ and in relation to other participants in that ‘field’. An applicant should be at the very top of their ‘field’.

25. I am conscious that the Regulations speak relevantly of the ‘arts’, and do not use language such as a ‘field’.  In reflecting on the applicant’s record of achievement in the arts, I do so by reference to music, and in the context more specifically of Samba music.  Throughout the hearing I spoke of the applicant’s ‘field’ of Samba music in order to assist in my assessment of the recognition of his achievement, but am conscious the question before me relates to ‘the arts’.

26. I have found the applicant to be an impressive witness.  He was spontaneous and helpful in his responses to my questions. I gained no sense from the applicant of exaggeration, but nor was he understated.  I rely on his evidence not only as to his own experience and skills, but also to the significance of his connection with the Beja Flor school in Brazil and its status within the Samba music area of the arts.  I am confident I have an accurate understanding as to the applicant’s record of achievement and the significance of his standing with the Beja Flor school in terms of assessing the exceptional and outstanding nature of his achievement in the arts.

27. I accept and place weight on the applicant’s evidence to the effect that the Beja Flor school in Brazil sits at the pinnacle of Brazilian Samba music and tradition.  It is a significant thing that the applicant is recognised by the Commissioners of the school as amongst its elite performers.  In this regard I accept and place weight on the written reference from the Commissioners of Beja Flor.

28. I accept also that, as explained by the applicant, his connection and status within Beja Flor has led him to be invited to perform in various locations around the world.  I accept his evidence as to the significance of the Cologne Samba music festival.  I accept also the evidence of his sponsor, Mr Bose.

29. I accept therefore that the applicant’s recognition as being among the elite musicians of the Beja Flor Samba school, and the international festivals and performances he has undertaken through this recognition, constitutes an internationally recognised record of exceptional and outstanding achievement in his art form; namely, Samba music.

30. I find therefore that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts. 

31. In the course of the hearing, I explained carefully to the applicant that if I were to form such a view, it would remain for him to demonstrate, among other things, that he would have no difficulty obtaining employment or in becoming established independently in the area.  The applicant was confident of his ability to do this.

32. 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 Regulations

    Marten Kennedy
    Member