1509577 (Migration)

[2016] AATA 3461

1509577 (Migration) [2016] AATA 3461 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gabriella Scornavacche
Mr Daniele Centurione

CASE NUMBER:  1509577

DIBP REFERENCE(S):  BCC2015/284796 BCC2015/285723

MEMBER:Kate Millar

DATE:3 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) (Class BX) visas. 

Statement made on 03 March 2016 at 8:17am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Scornavacche came to Australia from Italy in 2012 on a working holiday visa.  Since arriving she has also held a student visa.  On 27 January 2015 she applied for a Distinguished Talent (Residence) (Class BX) Subclass 858 on the basis of her ability as a singer and performer.  Mr Centurione applied for the same visa as her spouse and as a secondary applicant for the visa. 

2. Their visa applications were as refused by a delegate of the Minister for Immigration on 6 July 2015 under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied Ms Scornavacche has an internationally recognised record of exceptional and outstanding achievement in the arts, which is a criteria for the grant of the visa.

3. Ms Scornavacche and Mr Centurione appeared before the Tribunal on 10 February 2016 to give evidence and present arguments, and were represented by their registered migration agent. The Tribunal also received oral evidence from Ms Scornavacche’s sponsor, Mr Alfredo Malabello.

4. For the following reasons, the tribunal has concluded that matter should be affirmed.

   THE HEARING

5. Ms Scornavacche’s representative provided submissions before the hearing.  Due to technical difficulties, some of the submissions were not provided to me before the hearing.  Ms Scornavacche’s representative said at several points in the hearing that the hearing would have been conducted differently had these submissions been before me prior to the hearing.  Having reviewed these submissions, I do not think this is the case. 

6. The submissions provide further information on Ms Scornavacche’s more recent experience, in particular the to audition as well as her more recent performances including those before the Mayor and the Governor.  Ms Scornavacche gave oral evidence of this experience at the hearing, as would have been the case whether or not her submissions had been received.  She was provided with the opportunity to read the written submissions and give oral evidence of anything that was not before me.

7. Ms Giordani’s submissions on the law are addressed further below.  These submissions would not have affected the manner in which the hearing was conducted because the hearing was conducted to give Ms Scornavacche and her witness the opportunity to present any evidence they wished to provide on whether she had an internationally record of exceptional and outstanding achievement. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Distinguished Talent (Class BX) (Subclass 858) visa is a permanent visa. The criteria for the grant of the visa are set out in Part 858 of Schedule 2 of the Migration Regulations 1994 (the Regulations). Ms Scornavacche must meet the primary criteria for the grant of the visa, and Mr Centurione need only satisfy the secondary criteria.

9. As it applies to Ms Scornavacche, this visa is for people who have an internationally recognised record of exceptional and outstanding achievement in the arts (cl. 858.212(2)). The delegate was not satisfied that Ms Scornavacche’s record was an internationally recognised record of exceptional and outstanding achievement as required by cl.858.212(2)(a). 

10. This clause has been considered by the Federal Magistrates Court in Zhang v Minister for Immigration and Anor [2007] FMCA 664. In that case, Federal Magistrate Cameron found this clause required a consideration of four elements:

    (a)  An internationally recognised

    (b)  Record

    (c)  Of exceptional and outstanding achievement

    (d)  In [the specified field, in this case the arts][1]

    [1] At [31]

11. Federal Magistrate Cameron said the person’s record need not be long or lengthy or been sustained over a long period of time.[2]  Federal Magistrate Cameron went about the task of assessing this requirement by first identifying the applicant’s record then looking at whether it was internationally recognised, and was of exceptional and outstanding achievement in the field nominated by the applicant in the application. 

    [2] At [36]

12. Ms Scornavacche’s representative relies on Gaffar v Minister for Immigration and Multicultural Affairs [2000] which addresses the claim of national of Sri Lanka to have skills as a chef for the purpose of a subclass 805 visa.  There are significant differences in the requirements of the 805 visa and the criteria for a subclass 858 visa.  in which Justice French considered the requirements of a subclass 805 visa, in particular cl.805.212(6).  This has notable difference to the requirements of cl.858.212.  Of particular note is that Justice French discusses the requirements in 805.212(6)(b)(i)(A) that the applicant “has an exceptional record of achievement in that occupation, profession or activity”.  It is in this context that Justice French states the tribunal had taken an unduly restrictive approach in applying the requirement to having an “exceptional record of achievement,” and that this requires a demonstrated excellence in the relevant occupation out of the ordinary.  Justice French states an “exceptional record” plainly requires something out of the ordinary. 

13. Ms Giordani submits that this means that there is no requirement that the applicant’s record is special or unusual, but out of the ordinary.  This would seem somewhat of an oxymoron, as to be out of the ordinary it must generally be special or unusual, or at least not in the ordinary run of cases. 

14. It was not necessary for Justice French to consider the requirements in 805.212(6)(b)(ii) that the applicant has “a record of outstanding achievement, and is still prominent in the arts or in a sport”, nor did he do so.

15. As such, I consider Gaffa of limited application to this case, with the exception of the assistance it gives in construing the phrase “exceptional record of achievement” which is a demonstrated excellent in the occupation that is out of the ordinary.  It does not assist with the construction of what is outstanding achievement, and the criterion 858.212 requires that the record is exceptional and outstanding as well as being internationally recognised.

16. Ms Scornavacche and Ms Giordani also considered it relevant to the requirement of having a internationally recognised record of achievement that Ms Scornavacche has appeared in television and radio shows that are broadcast internationally, albeit that Ms Giordani also submitted that the person need not have travelled outside the country of origin to meet this requirement.  What is required by cl.858.212 is that her record of exceptional and outstanding achievement is internationally recognised, not that she herself has been seen internationally or has performed internationally. 

17. In the case, Ms Scornavacche’s record as stated by the delegate is:

    ·(2002-2005) the applicant performed with a Sicilian band known as Luis and the Disco Family in various clubs and events.

    ·(2006) the applicant was cast as Lola in the musical theatre production of Cavalleria Rusticana.

    ·(2007) the applicant performed with various bands/ ensembles including Hello Funky and Triula.

    ·(2008) the applicant recorded an album and toured with the band, Kalavria.

    ·(2009) the applicant was a finalist in a TV talent show known as Domani Festival.

    ·(2010-2012) the applicant was lead singer for the Sicilian band Seltz, limone e sale. The band was a regular performer at many of Sicily’s well known bars and clubs, and was invited to perform live on TV on several occasions.

    ·(2011) the applicant graduated from the AIDM (Accademia Internazionale del Musical) in Catania, Italy.

    ·(2012) the applicant was cast in the musical Donne in Musical at the Metroploitan Theatre, Catania.

    ·(2013 onwards) the applicant moved to Australia January 2013, and became actively involved with the local Italian community, performing alongside other Italian singers and musicians including Tony Pantano, Sammy Pizzata, and the Nunzio Mondia Orchestra. She has also performed regularly with a number of other West Australian bands and ensembles including Rhythm and Groove, Sorrento Moon, The Sirens, Mr Undercover Band, Flee Flow Trio, Summer Club Band, Easy Tigers, Gabriella Italian Trio, Gabriella’s Quintet and Easy Tigers.

18. Ms Scornavacche said that this record of her career was accurate, but did not more include recent requests she had received to audition for Australia’s Got Talent and for another television production.  She said she was unable to audition for Australia’s Got Talent as she is not an Australian citizen or permanent resident.  She said she was acclaimed by the Mayor of Perth via the Mayor’s twitter account after she had performed before the Mayor and the Governor of Western Australia.  Ms Scornavacche’s  representative submitted that while the list was accurate it did not convey the importance of her experience, as the standard of performers in Italy is much higher than in Australia, so to appear on television in Italy required a higher level of talent.

19. Ms Scornavacche said she sang all the backing vocals for Mr Alfredo’s albums and Mr Alfredo wants her to accompany him on tour. 

20. She has not won any industry awards or had a recording contract.  She has recorded once in Italy.  She was cast in productions in Italy.

21. On being asked what would distinguish her from other people who perform, Ms Scornavacche said she has appeared on international television shows, national radio, and was a guest on a radio program in Perth.  She says she is the only person in Western Australia or Australia who can sing in five languages, and that people stop her in the supermarket in Perth as she is recognised. While I accept that she is recognised by the Italian community in Perth, there is no other information to show she is recognised in other communities. 

22. Mr Alfredo gave evidence and said that he has problems finding backing singers and he needs someone who can sing in Italian.  He said Ms Scornavacche is professional and sings well.  He said he did not know much about Ms Scornavacche’s past accomplishments and had not heard her sing before she came to Australia.  He said he did not know what she has done in the past, and that she came to Australia for a better life.  Mr Alfredo said it would affect his business if Ms Scornavacche is required to leave Australia, and would hold back his career and income. 

23. Ms Scornavacche’s record of achievement is that outlined by the delegate, with the addition of being asked to audition for television talent shows in Australia and performing locally including before the mayor and governor in Western Australia.  She has appeared on national radio. I consider that to meet the requirements that she has an internationally recognised record of exceptional and outstanding achievement in the arts, Ms Scornavacche would have to show more than that she has performed in both Italy in Australia.  While Ms Scornavacche is clearly an accomplished singer who is sought after as a backing singing by Mr Alfredo and in local performances, I am not satisfied that her record of achievement is internationally recognised, or that her record of achievement is exceptional and outstanding achievement.

24. As I am not satisfied that Ms Scornavacche has an internationally recognised record of exceptional and outstanding achievement in the arts, she does not meet cl.858.212(2).  There is no suggestion she otherwise meets cl.858.212, and the decision in relation to her visa application is affirmed.

25. As Ms Scornavacche does not meet cl.858.292, Mr Centurione does not meet cl.858. 321 and the decision in relation to his visa application is affirmed. 

    DECISION

26. The tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) (Class BX) visas. 

    Kate Millar
    Member