1502720 (Migration)

[2015] AATA 3797

1502720 (Migration) [2015] AATA 3797 (27 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chiara Lee Taiariol

CASE NUMBER:  1502720

DIBP REFERENCE(S):  BCC2014/2716420

MEMBER:Glen Cranwell

DATE:27 November 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 27 November 2015 at 8:52am

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 February 2015 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 14 October 2014.

3. The delegate refused the visa application as the applicant did not satisfy cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had demonstrated a record of exceptional and outstanding achievement in the field of art of glass blowing.

4. The applicant appeared before the Tribunal on 13 November 2015 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

6. The Distinguished Talent Class BX visas are permanent visas 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.

7. At the time the visa application was lodged, the Distinguished Talent (Residence) Class BX visa contained only one subclass: Subclass 858 (Distinguished Talent) visa: Item 1113 of Schedule 1 to the Regulations.

8. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. The issue in dispute in this review is whether the visa applicant meets the requirement of cl 858.212. This clause relevantly provides:

   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.

9. 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 & Anor [2007] FMCA 664.

10. 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] FCA 293 where the Court considered the phrase “exceptional record of achievement” in an earlier category of skilled residence visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

12. On the department file are the following relevant documents:

    ·visa application form;

    ·nomination form completed by Noel Hart.  Mr Hart notes that the applicant has been employed on occasions to join the team of artists working with him when he is creating new work for exhibitions;

    ·reference from Jonathon Westacott, stating that the applicant is an integral part in the manufacturing and design aspects of his work;

    ·applicant’s academic qualifications (untranslated);

    ·newspaper article with passing reference to the applicant and another person opening a shop featuring glass art and jewellery, ethnic clothing, t-shirts and hats, and paintings by local artists;

    ·reference from Alan Usher, stating that the applicant has completed a workshop with him, learning the technique of glass blowing to make goblets;

    ·reference from Tina Cooper, stating that the applicant works occasionally for her as part of her team.  Ms Cooper opines that the applicant works well as a glass blowers assistant;

    ·reference from Lucas Salton, expressing surprise at the skill the applicant has acquired in a short time;

    ·reference from Noel Hart, stating that the applicant was a very skilled novice in the glass art scene. The applicant has assisted him with the creation of about 50 scultures;

    ·reference from Matthew Farrell, stating that the applicant has been working as an assistant in his studio.

13. The delegate refused the visa application because the delegate was not satisfied that the applicant had demonstrated a record of exceptional and outstanding achievement in the field of art of glass blowing. The delegate also found that there was no evidence before it that the applicant had provided specialised assistance to the Australian government in matters of security. Therefore, the delegate found that the applicant did not satisfy cl.858.212.

14. The applicant provided the Tribunal with a reference from Igor Balbi of Venice, stating that the applicant has been working in his glass studio learning his personal technique to blow Murano glass.

15. At the hearing, the Tribunal explained to the applicant the requirements of cl.858.212(2).

16. The applicant stated that she knows that at the moment she is not so well known internationally.  She is a really ambitious artist.  She knows she will reach that ambition.  She is unique, and not everyone can blow glass.

17. The Tribunal noted that the references provided referred to her as an “assistant”, or as having been learning from an instructor.  This suggested that her career had not yet progressed to the level to meet the criteria.

18. The applicant stated that some people undertake an apprenticeship for 15 years.  There are many ways to blow glass.  She considers that it is important to learn.  She is not publicly recognised now.

19. The applicant stated that she is talented.  She thought this was the best visa option for her.  It was closer to what she does than a business visa.

20. The Tribunal noted that the applicant had listed Noel Hart, Jonathon Westacott and Simon Rose as witnesses.  The Tribunal explained that because these witnesses were to appear by telephone and not in person, and because the Tribunal already had the applicant and interpreter on separate lines, the Tribunal’s telephone system did not permit it to add a third line to the call.  The Tribunal noted that it already had references from Noel Hart and Jonathon Westacott.  The Tribunal offered to give the applicant 14 days after the hearing to provide any additional references from these witnesses in lieu of it speaking to them.  The applicant accepted this offer.

21. On 25 November 2015, the Tribunal received the following email reference from Simon Rose:

    I am writing this email to describe the project I am doing in Nimbin and to explain what involvement chiara has in this project and how she is very important for the future of the project I,Simon Rose am the owner and developer of the project.

    The project involves the creation of multiple retail and work spaces where artists and artisans can work  and sell their creations.

    The project is designed such that all participants produce individual and unique work which is compatible with the values of the community Chiara mainly produces glass work which now has an established place in Nimbin She has a lease of retail space that is very prominent in this project She has leased space to allow people to watch her glass blowing and production and to display and retail her completed works.

    She is very important to this project and has a lease agreement .

    I am happy to be contacted if necessary to give further support to chiara

    Assessment

22. Clause 858.212(1) requires the Tribunal to be satisfied that the applicant meets the requirements of cl.858.212(2) or (4). The applicant has not claimed and there is no independent evidence to support a finding that the applicant has an internationally recognised record of exceptional and outstanding achievement in the areas of a profession, a sport or academia and research. Accordingly, the Tribunal needs to be satisfied that at the time of application the applicant has an internationally recognised record of exceptional and outstanding achievement, in this case, in the area of the arts. Further to this that she is still prominent in the area, that she would be an asset to the Australian community, and that she would have no difficulty in obtaining employment or becoming established independently in Australia in his area: cl.858.212(2).

23. The Tribunal finds that the applicant was lodged on 14 October 2014.

24. The Tribunal acknowledges that the applicant is a promising glass blower. However, the Tribunal is not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the field of art of glass blowing. In making this finding, the Tribunal relies on the references provided by the applicant, which list her as an “assistant” or as having been learning from an instructor. Even the reference from Simon Rose does not claim the applicant has the requisite level of international recognition at present, a position the applicant herself appeared to accept at the hearing. The Tribunal considers that the evidence suggests that the applicant has the potential to reach the highest levels in glass blowing but that her achievements at the time of application do not meet the exacting requirements of cl.858.212(2)(a) of Schedule 2 to the Regulations.

25. Since the applicant does not meet cl.858.212(2)(a), and no evidence has been provided indicating that the applicant meets cl.858.212(4), the Tribunal finds that the applicant does not meet cl.858.212. The Tribunal must therefore affirm the decision under review.

    DECISION

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

    Glen Cranwell
    Member