1503205 (Migration)

[2016] AATA 3060

1503205 (Migration) [2016] AATA 3060 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bruno Emiliano Ferreira e Ferreira

CASE NUMBER:  1503205

DIBP REFERENCE(S):  BCC2015/475514

MEMBER:Bruce Henry

DATE:15 January 2016

PLACE OF DECISION:  Brisbane

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 for a Subclass 858 (Distinguished Talent) visa:

·cl.858.212 of Schedule 2 to the Regulations.

Statement made on 15 January 2016 at 10:00am

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 23 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 11 February 2015. At the time of application, Class BX contained one subclass: subclass 858 (distinguished talent) visa.

3. Subclass 858 (distinguished talent) 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 and he did not claim to meet subclause 858.212(4).

4. The delegate refused the visa application as the first named applicant did not satisfy cl.858.212(1)(a), (b) or (c) of Schedule 2 to the Migration Regulations 1994 (the Regulations), which are set out below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the requirements of cl. 858.212 which are set out below.

6. The criteria for the subclass 858 (distinguished talent) visa are found in Part 858 of Schedule 2 of the Regulations. Those criteria include cl.858.212, which relevantly provides as follows:

   (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: …

   (iii)      the arts; … 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) [above]) to be attested to by …

   (a) an Australian citizen; … who has a national reputation in relation to the area.

7. Information on the departmental file establishes that the applicant was born in Belo Horizante, Brazil, on 12 July 1978 and is a Brazilian citizen. He arrived in Australia on 10 March 2012 as the holder of a subclass 570 student visa to study English, and was subsequently granted a subclass 572 student visa that was valid until 12 February 2015. The application under review was lodged before the expiry of that visa.

8. In his application the applicant claimed to be a distinguished talent in his field, namely, as a professional dancer, choreographer and teacher of Latin American and Brazilian dance.

9. In rejecting the application the delegate stated:

   For the purposes of this application the applicant has nominated that he is applying for a distinguished talent visa based on his achievements in the field of the arts, in particular as a professional dancer, choreographer and teacher of Latin and Brazilian dance. The applicant has been nominated by an Australian citizen, and owner and founder of the Rio Rhythmics Latin Dance Academy, Tarcisio Teatini Climaco.

   The policy intention of the distinguished talent program is to provide permanent residence to outstanding individuals, who would not qualify under other visa categories but who will make substantial contributions to the Australian community because of their international achievements.

   In support of claimed achievements, material evidence provided by the applicant at time of application included, but was not limited to the following:

   - A reference letter from the nominator.

   In order to satisfy the requirements of clause 858.212(2)(a), an applicant is required to demonstrate having an internationally recognised record of exceptional and outstanding achievement. Policy goes on further to state the applicant “should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and   be superior to others in their field”. Similarly, an applicant must still be prominent in the area to satisfy the requirements of clause 858.212(2)(b).

   In this case, I acknowledge that the applicant’s skills have provided him with opportunities to gain employment as a dance instructor and performer in several counties including Brazil, France, Spain and now Australia. However, this in itself is not sufficient to demonstrate having and internationally recognised record of achievement unless those achievements are exceptional, outstanding and subsequently rate the applicant in the upper echelons of the field.

   There is minimal evidence to measure the achievements of the applicant with respect to other dancers and teachers, particularly when compared to international standards. I accept that the applicant’s abilities may place him within the top echelons in Australia, given this genre of dance has only been practised in Australia for a relatively short period of time. However, its huge popularity in continents such as South America and Europe would contribute to fostering some of the best practitioners in the field. The applicant has not supplied any evidence to indicate that his abilities are extraordinary or remarkable, nor is there enough evidence to indicate that he is considered to be superior to others in the field.

   With respect to clause 858.212(2)(c), an applicant must be able to demonstrate that they would be an asset to the Australian community. Policy goes further to say that the benefit should not just be limited to the applicant and/ or nominator (or prospective employer). In this case, it should be noted that the nominator has also been the applicant’s employer since July 2014, and as a result, a favourable decision on this visa application would be of significant benefit to the nominator’s dance studio, but not necessarily the wider Australian community.

   It should also be noted, under section 10.2, Policy advises “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”. Whilst I accept that this has been extracted from the policy section which relates to clause 858.212(2)(e), I believe its relevance can also be applied to clause    58.212(2)(c), as the nominator has a vested interest in continuing his professional relationship  with the applicant, and that his reference may carry less weight because of the nominator’s desire to maintain a working partnership with the applicant.

   In summary, I find that the applicant has supplied insufficient evidence to demonstrate a record of exceptional or outstanding achievements (as per clause 858.212(2)(a) and (b), or that he will be considered an asset to the Australian community (as per clause 858.212(2)(c)).

   As the applicant has been represented by an authorised migration agent and the visa application addressed all the criteria I am satisfied that the applicant has had ample opportunity to present a fair representation of his achievements and benefits with his strongest case. I therefore do not consider that the applicant’s claims are likely to be materially improved through further submissions. Consequently I consider it reasonable to make a decision on the basis of the information presently at hand.

   Therefore, for the reasons as given above, I have determined that that applicant has not satisfied subclauses 858.212(2)(a), (b) and (c).

   Internationally recognised record

10. The applicant’s field of expertise is as a professional dancer, choreographer and teacher of Latin American and Brazilian dance. As noted above by the delegate, little evidence was provided to the Department to support his claim to have an internationally recognised record of exceptional and outstanding achievement in this field.

11. A substantial quantity of material has been provided to the Tribunal during the course of this review, including a detailed ‘Personal Statement’ by the applicant in which he describes his professional career in part as follows:

    Background in Dance

    I was born in Belo Horizonte, Brazil, 12 July 1978 and growing up I was always interested in dance and sports. In 1992, at the age of 14 I joined Mimulus Dance School, and started taking classes. Having a natural talent for dance, I very quickly fell in love with it and knew that I would pursue it professionally. Within a year, I had started to help in a student supporter role as well as perform as part of the Mimulus Dance Company amateur group.

    Over the years dancing for Mimulus Dance Company I became proficient in all popular Brazilian and Latin dance styles including; Samba no pe, Samba de Gafieira, Bolero, Soltinho, Tango, Cuban Salsa, Forro, Zouk Lambada, Milonga, Lindy Hop, Waltz, Tango Waltz, Bachata and Merengue (See supporting documents 3. for further evidence).

    In 1993, 1994 and 1995 our amateur team within Mimulus Dance Company won several championships across the country and we became the first social dance company to win at the Joinville Dance Festival, one of the most prestigious dance Festival in South America (see supporting documents 6 for evidence).

    In 1996, at the age of 18, 1 became a dance instructor at Mimulus, teaching several Latin American dance styles including Samba de Gafieira, Bolero, Soltinho, Cuban Salsa, Tango and my particular passion- Samba no pé (See supporting documents 3D).

    In 2000 Mimulus Dance Company officially became professional and I received my professional registration and began teaching, performing, choreographing, and directing in a professional capacity (See supporting documents 3 E), From 2000 to 2011 I danced within the company in numerous theatres and festivals as well as taught at workshop and congresses across Brazil, Argentina, Chile, United States of America, Canada, France, Spain and Finland. (See video E for Choreographies and performances whilst working at Mimulus Dance Company.

    Mimulus Dance Company is one of the most renowned Brazilian and Latin style dance companies in Brazil and the world. As stated in The New York Times "Mimulus dance company ought to be bottled and sold as elixir" (see supporting documents 8W), Mimulus is known for its unique stage productions which encompass an exciting blend of samba, contemporary dance, and imaginative visual design. Whilst performing within the company, we won Mimulus numerous awards for our exceptional performances (See award list attached and supporting documents 6). Furthermore, dancing within the company helped my name and reputation as a distinguished dancer and choreographer to grow both nationally and internationally. During this time, I was awarded best male dancer of 2004 and 2010 by SESC-SATED/MG (The Syndicate of Artists and Technicians in Minas Gerais), best male dancer of 2004 by USIMINAS- SINPARC/MG (Syndicate of Producers of Performing Arts in Minas Gerais)) and Nominated as one of the `Top 3 most influential dancers of the decade' by SESC-SATED/MG in 2007. (See Award List for further information and supporting documents 6).

    The most significant part of my career as a professional dancer within Mimulus Dance Company was my performance and choreography in four major international dance productions by Mimulus Dance Company- "De Carne e Sohno", "Do Lado Esquerdo de Quem Sobe", "Por Um Flo" and "Dolores" which ran between the years of 2003 and 2011 across the world. Throughout this time we won several awards and received enormous praise worldwide for the exceptional talent exhibited within these performances. (See supporting documents 7, 8, 9 and 10 for Official Programs, Press Releases and Photographs, also see videos A, B,C and D on USB stick provided).

    Please note, throughout my dance profession I remained passionate about performing arts and teaching. Despite my popularity and status within dance I was not, and am still not, interested in competitions. The majority of awards I have won for myself or that Mimulus has won, for a performance I did, were nominated awards. I am not interested in entering into international championships to prove my talent I am an artist and a teacher, not a show pony, Because of this, my distinguished talent can mostly be measured by my reputation within the industry. (Please see supporting documents 4 for Testimonials from other professionals within the dance community), My enjoyment does not come from recognition, it comes from entertaining and moving people, making them smile, laugh and cry as well as through teaching where I get to watch individuals grow in confidence, push their comfort zone and nurture their artistic and creative passion (Please see supporting documents 5 for testimonials from my students).

    Education and further development

    In 2004, I furthered my education with a degree in Physical Education and in 2005 postgraduate study in Movement Pedagogy /or Teaching Dance. (PIease see documents 3 for evidence). This enabled me to develop my knowledge of anatomy, physiology and biomechanics. This in-depth understanding of how the body works differentiates me from other dance teachers who may have only danced socially. Rather than just learning a sequence of moves, it allows me to have a deep understanding of my co-ordination, how I transfer my weight, and my connection with the floor and my partner. It also assists me with physical preparation for performances and management of injuries. Most importantly it helps me to teach in the safest way possible, as it has given me the knowledge of how to help my students look after their body's individual needs as well as ways to work with those who have an injury, physical disability or limitation, (PIease see supporting documents 4 and 5 for testimonials from professionals^, regarding my high caliber of teaching and safety standards),

    In addition, I extended my skills within dance across the years through classes in circus skills, acting, acrobats, classical ballet, contemporary dance, contact and improvisation. All of which gave me a better understanding of my body, balance, co-ordination, flexibility, strength and connection (See supporting documents 3 for further evidence). This eclectic mix of studies assisted me in forming my own personal style within the dance Styles I taught and performed. This personal style is recognized and known throughout the international Latin dance community (See supporting documents 4 for evidence of this),

    My Knowledge of Brazilian Dance

    Throughout my upbringing in Brazil being immersed in the culture, my time within Mimulus Dance Company, being taught by many extremely experienced dancers, my tertiary education, and further development through the huge mix of classes mentioned above, I developed exceptional experience, knowledge and talent within the field of Brazilian dance. (See supporting documents 4 for testimonials to support my exceptional talent in dance)

    Life in Australia

    I came to Australia in 2012 to learn English and study Events Management as a way of expandingtny opportunities within dance. I did this so that I may be able to organize international dance events and share my knowledge and skills within Brazilian Dance to parts of the world where Brazilian dance styles are becoming Very popular but there is still a lack in numbers of high quality teachers:

    I first lived in Perth for a year where I taught at Juan Rando Dance Academy (see supporting document 4B and 4G for testimonials). I then moved to Melbourne to investigate the dance scene there and was involved with several dance schools, including Dance 4 Life (see supporting document 4K), Spin City Dance and Loco Mojo Dance, providing specialized workshops and private lessons.

    Over my time living in Australia I have been socially dancing, teaching and performing at Workshops, and international ^-congresses and events across the country (see supporting documents 12). The larger internationally recognized congresses where I have been invited to teach or perform include: Sydney Latin Festival (see supporting documents 45), World Salsa Solo- Brisbane (see video G on USB stick), Melbourne Latin Festival (see video F on USB stick), Brazil Central- Brisbane (See supporting document 4I, 4L, 4M), Casa Do Zouk- Gold Coast (see supporting documents 4A), and Doudoule- Gold Coast (see supporting documents 4J). All of which are internationally known festivals and congresses which uphold their reputation and standards each year by inviting only the most talented and famous Brazilian and Latin style dancers from around the world.

    In 2014, I was poached from Melbourne's Latin dance scene and hired by Rio Rhythmics Latin Dance Academy (Brisbane's longest running and most renowned Latin Dance Academy) as the primary Brazilian style instructor, events co-ordinator and Student support co-ordinator (See documents 4I arid 4L). Throughout my time working for Rio Rhythmics I have been training my now dance partner Elise (see supporting documents 4H, and video H on USB stick of our new choreography) and I continue to be invited to international congresses and workshops around the country where I perform and teach.  I have made a huge impact on the dance community in Brisbane, am considered an esteemed member of community for my huge experience and exceptional talent, and I am greatly valued by the hundreds of students I teach for the humour, warmth and inclusivity I bring to every class (please see supporting documents^. 5 for testimonials).

    In December 2014 I was invited by Brazouka Live On Stage, an international stage performance that was written by Pamela Stevenson-Connolly (Billy Connelly's [sic] wife) as a way to showcase Brazilian dance styles to the world (see supporting documents 4C, 4D and 4H). I joined a team of world-renowned dancers to perform at Jupiters Casino for 6 weeks, doing 8 shows weekly. When I was invited, I had to learn choreographies and perform within one day. Brazouka cast and production crew as well as the many professional dancers who came to watch me were all very impressed by my dedication to dance, my discipline, my ability to learn choreographies very quickly and my overall exceptionally high level of talent within dance and performance. …

    Future Plans

    It is my intention, if I am able to stay in Australia, to continue growing the dance community and improving the quality of the teaching of Brazilian dance styles, particularly samba no pe, across the country. I would like to help train talented Australian social dancers to become professional dancers and give them opportunity to perform and teach. It is my ultimate dream to create a professional dance company here within Australia to help to spread this wonderful art across the country and continue to enrich Australia's performing arts scene and multiculturalism.

    Furthermore, since moving to Brisbane I have also met my partner- an Australian citizen. If all goes well with our relationship I would like to settle down in Australia with her and have a family. She is a social dancer of Brazilian styles and is a big supporter of my passion within the field of dance.

    How I will support myself

    I plan to remain as a teacher at Rio Rhythmics as my base income and then add to this through workshops and performances at the various dance congresses I plan to attend across Australia including Sydney Latin Festival, Melbourne Latin Festival, Casa Do Zouk (Gold Coast), Doudoule (Gold Coast), Sydney International Bachata Festival, Canberra Latin Dance Festival, Byron Byron Latin Fiesta, and BrazilFest (Adelaide).  I feel very confident that I will be able to financially support myself but if I was to ever come across financial hardship for whatever reason my family would not hesitate to assist me.

    Conclusion

    I believe that based on my passion for dance; which started at the age of 14 and has not stopped; my tireless effort to constantly grow and improve my skills; my exceptional and unique talent within Brazilian dance, particularly samba no pe; and my commitment to growing Brazilian dance and sharing my culture within Australia; that I qualify for the Distinguished Talent Visa. I am confident that will be an asset to the Australian community by helping to add to the rich multiculturalism that is so highly valued within this country and by providing both men and women of all ages an opportunity to be a part of a healthy, happy and loving social activity and community

1. The applicant attached numerous supporting documents to this statement, many of which are referenced in the statement. The Tribunal has through the internet been able to check and verify many of the claims made by the applicant, including his prominent role in various productions of the Mimulus Dance Company in New York, Marseilles and Lyon in France, at Festivals in Brazil, and the individual awards he has won in Brazil, as well as the highly favourable review of the Mimulus production in the New York Times of 30 July 2007[1]. The Tribunal is therefore satisfied that the evidence produced by the applicant is reliable.

   [1] Jennifer Dunning, New York Times, From Brazil With Brio, Soccer Balls and Samba, 30 July 2007, available at accessed 14 January 2016.

2. The Tribunal is satisfied from this material that the Mimulus Dance Company is very highly regarded both in Brazil and internationally, and that the applicant was a leading dancer with the company for many years. Amongst the documents he provided is a reference from the President of the Mimulus Cultural Association in Brazil attesting to his major role in the establishment and promotion of their dance company, including participation as a dancer in all of their shows from 1993 to 2011, his various additional roles within the company as a Production Assistant, Fitness Coach, and the Director of the Mimulus Experimental Dance Group from 2007 to 2011. The Director also confirms that he won individual prizes from national organisations three times for his performances in productions of the Mimulus Dance Company.

3. The additional personal references from other dance professionals and the programs for various productions in which he has taken part all demonstrate that the applicant is very well-known and regarded internationally in his field. The Tribunal particularly notes in this context the supporting letter provided by Jamie Jesus on behalf of Latin Dance Australia, himself an internationally renowned Latin dancer.

4. On the basis of this substantial volume of information, the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts, and that he remains prominent in the field, as illustrated by his participation in the festivals and productions throughout Australia since his arrival here.

5. On the basis of the applicant’s record as a dancer and the testimonials provided to the Tribunal by the applicant the Tribunal is also satisfied that he would be an asset to the Australian community. The Tribunal also accepts that the applicant has demonstrated that he has had no difficulty in obtaining employment in his field in Australia, and is satisfied that this will continue to be the case.

6. Accordingly, the Tribunal finds that cl.858.212(2)(a), (b), (c) and (d) are satisfied.

7. In relation to cl.858.212(2)(e), the Tribunal notes that the application was accompanied by a Form 1000 Nomination for Distinguished Talent completed by Tarcisio Teatini-Climaco, the Founding Director of Rio Rhythmics Latin Dance Academy in Brisbane, the company which currently employs the applicant, as noted by the delegate. Mr Teatini-Climaco provides some information on his own background and standing in the field of Latin dance in Australia, and the Tribunal also notes that he is a former Member of the Australia Council’s Dance Board and its Multicultural Advisory Committee[2].

   [2] Australia Council, Annual Report 2000-2001,

8. In the circumstances, the Tribunal is satisfied that Mr Teatine-Climaco is an Australian citizen who has a national reputation in relation to the field of dance in Australia, in particular Latin dance, which is the area in which the applicant has an international reputation as discussed above, and finds that cl.858.212(2)(e) is met.

9. The Tribunal finds therefore that cl.858.212(2) is satisfied.

10. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

11. 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 for a Subclass 858 (Distinguished Talent) visa:

    ·cl.858.212 of Schedule 2 to the Regulations.

    Bruce Henry
    Member