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

1. 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).

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 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.

4. 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.

5. 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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. At the hearing, the applicant confirmed his filmmaking experience, emphasising that film-making is more than merely producing a movie but involves being an expert in the industry.  The applicant emphasised that he works to support the diversity of the film industry.

12. I asked the applicant why he considered himself to be in the top echelons of his art-form.  The applicant said his work had been recognised internationally, in Spain, the US and Mexico.  He drew attention to his work in Puebla, Mexico for the government.  The applicant also emphasised that his work includes television and documentaries.  He said his expertise was recognised in being asked to work at the university where he assisted to develop a post-graduate course.  He said he has also participated in forum panel discussions at film festivals.

13. The applicant was concerned that his graduation from the Edith Cowan University not be misunderstood.  I accept that the applicant is not a newly graduated film-making student.  Furthermore, the applicant told me that he holds a Masters in Film Direction from Madrid and may apply in the future to work towards a Doctorate

14. I asked the applicant what he considered to be the highlight or pinnacle of his career so far.  The applicant said that he has been involved in hundreds of films.  He considered that three short films that received awards internationally to be the pinnacle of his career.  He confirmed he has not made a feature film.  When pressed, the applicant nominated the ‘Action on Film Festival’ in Los Angeles where he was awarded best young film maker of the festival as a career highlight.

15. As to his most recent works, the applicant told me that he has worked on three commercials in Australia.  One festival he was assisting in organising:‘Hola Mexico’, did not proceed but another: ‘Viva Mexico’, had sold out sessions in Melbourne and Perth.

16. The applicant also provided a helpful written summary of his submissions after the hearing (26 February 2016).  I have considered it carefully.  The applicant again emphasises the breadth of his work and skills in the film-making art-form, and mentions the significance of his experience within the Latin community.

17. The applicant takes issue with aspects of the delegate’s findings and observations as to his work experience.  I take note of those matters without restating them in these reasons. I do not overlook the applicant’s time and work in Sweden, and as mentioned above do not hold the view that the applicant is in the developmental stages of his career as an inference from his recent completion of a bachelor qualification in Western Australia or the awards he has previously received as a young filmmaker.

18. The applicant also draws attention to his work “Citizen Wayne” created as a professional commitment for the City of Perth.

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

19. 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.

20. 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.

21. I have taken into account the Department’s policy as set out in PAM3, conscious of the well settled role of Departmental policy in the Tribunal in that I am not bound to apply it but am to have regard to it.  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’.

22. 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 filmmaking. I accept that as explained by the applicant this can encompass all aspects of the industry (noting the applicant’s technical qualifications) and includes television, advertising, short films and feature films.

23. I have not approached my task by assuming, for example, that only well-known directors of feature films can have the requisite record of achievement in this field of the arts.  I wish to emphasise that I have not, for example, required that the applicant have a high profile in ‘mainstream’ English-speaking popular culture, significant commercial success, or evidence of involvement in a ‘blockbuster’ as essential elements of a record of exceptional and outstanding achievement in this art-form.

24. I have considered carefully the extensive submissions and arguments of the applicant.  On careful reflection, I am not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts.

25. I am mindful not to conflate the regulatory test with other terminology, but wish to elaborate on my assessment in this regard.  It is the aspect of ‘exceptional and outstanding’ achievement within the regulation that I am not satisfied is met in this case.  I accept the applicant’s evidence of his qualifications, experience and record.  There is no doubt on the evidence that the applicant is highly skilled, experienced and qualified in his profession and art-form.  The record of his work is extensive and broad.  It is also clear that the applicant’s work and career has international elements.

26. The regulation however calls for a record of exceptional and outstanding achievement. 

27. In my assessment, and focussing on the identified highlights of the applicant’s career, and his career generally, for a record of exceptional and outstanding achievement to be demonstrated more is required in the art-form of filmmaking than occasional success at film festivals, sound qualifications in the area, involvement in the establishment of film-schools and extensive work for a range of clients in different aspects of film-making.

28. I am not satisfied that the applicant’s extensive and solid record within his career has the qualities of an exceptional and outstanding achievement, relying on the ordinary meaning of these terms.  Reflecting also on the elaboration of these terms contained in Departmental policy, I do not see the applicant (having had careful regard to his curriculum vitae) as in the ‘upper echelons’ of his field.

29. 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 Kennedy
    Member