1510464 (Migration) - [2016] AATA 3751

1510464 (Migration) [2016] AATA 3751 (14 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jose BRIONES AGUIRRE
CASE NUMBER:  1510464
DIBP REFERENCE(S):  BCC2015/430302
MEMBER:Marten Kennedy
DATE:14 April 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

Statement made on 14 April 2016 at 12:18pm

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 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).
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 visa applicant applied for the visa on 9 February 2015. He applies for the visa based on his achievements in the field of the arts, and more specifically as a filmmaker. The applicant has also emphasised in the course of this review his technical skills including as a cinematographer and role in establishing a cultural studies centre in Mexico.
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 appeared to be an established filmmaker, his achievements to date did not reflect that he was in the upper echelons of the field.
The delegate therefore decided that the applicant did not satisfy cl.858.212(2)(a) as his record did not demonstrate exceptional or outstanding achievement. I must also decide whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts.
CONSIDERATION
Evidence
The applicant has been nominated for the visa by Mr Franco Di Chera who states he is a Director of the WA Screen Academy, and also lists a wide body of work in Australian film and television. Mr Di Chera states that the applicant studied Directing and Cinematography at the WA Screen Academy and directed a film named ‘One Player’ that won best film in the young filmmakers category at the ‘Action on Film California International Film Festival’. He describes another film directed by the applicant ‘Citizen Wayne’ that was screened outdoors in Northbridge, involvement in directing television commercials and a documentary screening locally in WA. He also describes the applicant’s achievements in cinematography, winning awards at the WA Screen Awards. Mr Di Chera describes the applicant’s expertise as exemplary with a thorough knowledge of directing, camera and lighting techniques, with strong editing and visual effects skills.
The application for the visa includes references from clients in Sweden, Mexico and Western Australia who have contracted the applicant for…

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.

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Details

AGLC: 1510464 (Migration) [2016] AATA 3751
Case: [2016] AATA 3751
Decision Date: 14 April 2016

CaseChat Overview and Summary

The case involved an application for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa by an individual, referred to as the applicant, who claimed to have an internationally recognised record of exceptional and outstanding achievement in the arts, specifically in directing and cinematography. The decision not to grant the visa was made by the delegate and subsequently affirmed by the Tribunal. The primary legal issue for the Tribunal was to determine if the applicant's achievements and recognition in the arts met the criteria specified under cl. 858.212(2) of the relevant legislation.

The Tribunal examined the evidence provided by the applicant, including nominations by Mr. Franco Di Chera, who is a Director of the WA Screen Academy, and other individuals who had engaged the applicant's services for promotional videos and infomercials. The evidence also included references from various institutions and clients, as well as a comprehensive curriculum vitae and written submissions addressing the Department's policy and the importance of the Mexican film industry. The Tribunal had to assess whether the applicant's achievements, as described, were indeed internationally recognised and met the criteria of exceptional and outstanding achievement in the arts.

After considering all the evidence, the Tribunal concluded that the applicant did not meet the requirements of cl. 858.212. The Tribunal found that the applicant's record did not demonstrate the level of exceptional or outstanding achievement necessary to qualify for the visa. The Tribunal affirmed the delegate's decision not to grant the visa, noting that the applicant's achievements, while commendable, did not reach the threshold required for an internationally recognised record of exceptional and outstanding achievement in the arts.

The final orders of the Tribunal were to affirm the decision of the delegate not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa, upholding the assessment that the applicant did not meet the specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given my findings, I am not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research for the purposes of cl. 858.212(2). The applicant does not meet the requirements of cl.858.212, and the visa must be refused.DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.Marten KennedyMember

Ratio Decidendi

Legal Principle Established

The delegate therefore decided that the applicant did not satisfy cl.858.212(2)(a) as his record did not demonstrate exceptional or outstanding achievement. I must also decide whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts.CONSIDERATIONEvidence The applicant has been nominated for the visa by Mr Franco Di Chera who states he is a Director of the WA Screen Academy, and also lists a wide body of work in Australian film and television. Mr Di Chera states that the applicant studied Directing and Cinematography at the WA Screen Academy and directed a film named ‘One Player’ that won best film in the young filmmakers category at the ‘Action on Film California International Film Festival’. He describes another film directed by the applicant ‘Citizen Wayne’ that was screened outdoors in Northbridge, involvement in directing television commercials and a documentary screening locally in WA. He also describes the applicant’s achievements in cinematography, winning awards at the WA Screen Awards. Mr Di Chera describes the applicant’s expertise as exemplary with a thorough knowledge of directing, camera and lighting techniques, with strong editing and visual effects skills. The application for the visa includes references from clients in Sweden, Mexico and Western Australia who have contracted the applicant for promotional videos and infomercials. There is also a reference from the Cultural Complex of the BUAP University (Puebla, Mexico) where the applicant worked as a coordinator. A further reference letter from Mr Di Chiera is provided in his capacity as Director of the WA Screen Academy at Edith Cowan University, mentioning that the applicant is a graduating student of the academy, completing his Bachelor of Creative Industries degree. I have had regard to a comprehensive curriculum vitae of the applicant contained on the Departmental file, noting his qualifications from 1998 onwards, Director credits from 2003 onwards, Director of Photography credits , and experience as a camera operator, camera assistant (including in 2014), lighting technician and writer. I note that the applicant’s works have been displayed in a range of international locations (primarily, Spain, Mexico and Australia) and on television, primarily community and local television in Australia. I have had regard to a detailed and comprehensive written submission prepared for the Department, incorporating publicity material and social media content about the applicant’s projects. The submissions provide an overview of the Mexican film industry and the nature of short films. The submissions address the Department’s policy, and relevantly conclude that the applicant has been always near the top of his field in Mexico and in other countries. The submissions address the size and importance of the Mexican film industry. A further submission containing the applicant’s more recent works is also provided, consisting of promotional videos for a Real Estate Agent, Architectural Coatings business and website. Further evidence is also provided regarding the applicant’s involvement in a Mexican Film Festival in Perth.