1516184 (Migration)

[2016] AATA 4828

1516184 (Migration) [2016] AATA 4828 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Selene Pennetta
Mr Francesco Anglani

CASE NUMBER:  1516184

DIBP REFERENCE(S):  BCC2015/1721982 BCC2015/1734937 BCC2015/1743935

MEMBER:Bruce Henry

DATE:22 December 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 of the Regulations.

Statement made on 22 December 2016 at 2:08pm

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) –Internationally recognised record of exceptional and outstanding achievement in the arts – Achievements and international reputation in the field of dance – Unique performances of the Pizzica dance – Prominent performances in cultural events in Queensland – Well researched publications on Pizzica dance – Nominator with a national reputation in the arts

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedules 1 and 2 cl 858.212, r.1.03

CASES

Zhang v MIMA [2007] FMCA 664

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 9 November 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. 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. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations.

3. 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. The applicant has not claimed to have provided assistance to the Australian government in matters of security.

4. The first named applicant, Ms Pennetta, applied for the visa on 16 June 2015. The delegate refused to grant the visa on the basis that the requirements of cl.858.212(2)(a) were not met. The delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts, specifically in dance. The other applicant is Ms Pennetta’s husband.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

6. The issue in the present case is whether the applicant meets the requirements of cl.858.212, which 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.

7. In the case of Zhang v MIMA [2007] FMCA 664 it was held 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. It was stated that a record is an aggregation or a list, not necessarily a large aggregation or a long list.[1] Cameron FM said[2] (at para 38):

   The applicant clearly had a record of achievement of some sort. The question was, once that record of achievement was identified, did it amount to one which was internationally recognised and of exceptional and outstanding quality. The Tribunal did not approach the question in this way but dismissed the applicant’s published work as not being a record before determining whether it was exceptional and outstanding, as a reading of the passages quoted above, taking into account the emphases employed by the Tribunal, reveals. Because the Tribunal did not correctly understand the meaning of the word "record", and thus did not ask the correct question in relation to this fundamental aspect of the test prescribed by the regulation, its decision is affected by jurisdictional error and must be set aside.

   [1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].

   [2] ibid., at [38]

8. In dealing with the question of whether the applicant had a record of ‘Exceptional and outstanding achievement’, Cameron FM said[3]:

   The question to be answered was whether, in the applicant’s identified area of academia and research, based on his linguistic skills and understanding of Chinese and Australian cultures, the applicant’s achievements were internationally recognised and exceptional and outstanding. To describe the applicant as a "language teacher and translator", as the Tribunal did, minimises the applicant’s academic achievements in what appears to be a rare and difficult area of endeavour and demonstrates the problems caused by the Tribunal’s misunderstanding of the application being made. Rather than properly considering what the applicant had achieved in his field of expertise, the Tribunal commented on what he had not attempted in a field in which he was not claiming expertise. By saying, as the Tribunal did, that the applicant was not the poet but was "only the translator and commentator" of the poetry in question, as part of its reasoning process used to arrive at the conclusion that the applicant did not have a record of achievement in academia and research or in a profession or that his achievements were not exceptional and outstanding (para.24, CB 254), demonstrates that the Tribunal did not properly identify the basis of the application and thus the task it had to perform.

   [3] ibid., at [44]

9. It is in the context of the above that the Tribunal has considered the claims and evidence.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Ms Pennetta was born in Italy in 1982 and is a citizen of that country. She applied for the distinguished talent visa on the basis of her achievements in the field of the arts, in particular dance. She is nominated by the Artistic Director and Conductor of the Queensland Pops Orchestra, Patrick Anthony Pickett.

11. Documents on the departmental file establish that Ms Pennetta first arrived in Australia in November 2012 as the holder of a working holiday visa, subclass 417. On 3 February 2014 she was granted a subclass 574 student visa, and as indicated above lodged the application under review on 16 June 2015.

12. In the nomination form 1000 lodged with the application, Mr Pickett states:

    Introduced by Alexandro Sorbello, director of Italian Week in Brisbane because of her performances within the Italian community. The respect for which she was held at was as a result of her unique performances of the now rarely seen Pizzica dance. Her highly impressive publication La Pizzica provided me with a platform to evaluate and understand this ancient dance. Having then been introduced to the unique rhythmic and high-energy music I was captivated by this evocative dance. In 2013 I presented Selene as a solo artist in a concert entitled Viva Italia. Selene danced to version of the Pizzica and enthralled the uninitiated and thrilled the Italian expatriates.

    The inculcation of this traditional dance into the enormous Italian community in Australia has contributed to the stability of these cultural traditions as well as introducing first and second generation Italian Australians to this ancient dance form. In 2015 Selene will again perform in the revised concert production Viva Italia Supremo in Brisbane Premier concert venue QPAC and in regional Caloundra.

    Now an in-demand performer in cultural events in south-east Queensland Selene has set itself apart from her peers through her well researched published works and her amazing performances.

13. Mr Pickett described his own national reputation in the field as follows:

    I have been a professional conductor and musician for more than 40 years. My experience has been in the fields of theatre entertainment, symphonic bands, orchestras, and quires, as well as wide and diverse international experience of multicultural and artistic endeavours. Included in this has been traditional dance from Ireland, Scotland, country dancing and ballet. In recent years I have been introduced to the pizzica, a traditional dance from Salento from southern Italy. Currently as artistic director and conductor of the Queensland Pops Orchestra, I have been engaging in the employment of a vast variety of cultural dance in our annual cultural season.

14. Ms Pennetta provided the Tribunal with a copy of the decision record of the delegate who refused the application. The background to the case was set out in the decision record as follows:

    In this case, the applicant claims to be a dancer who has focused on the ancient and traditional dance known as the pizzica.

    The pizzica is a traditional dance from Salento, in the Italian region of Puglia. Its origins date back centuries and can be best described as a dance of courtship, love, eroticism and passion between men and women. Also performed by the applicant is another traditional dance from the same region known as the taranta dance, first devised as a means of dispersing the poison from the bite of a tarantula spider, although today it is better recognised as a therapeutic dance for the soul.

    The applicant’s knowledge of this unique genre of dance, together with her interest in the culture and heritage of the people of southern Italy have offered opportunities to present dance performances, and to promote the culture and traditions of the Salento people through collaborations with various organisations in countries including Italy, Canada and Australia. Some of her documented works include:

    ·a book authored by the applicant on the pizzica dance genre entitled La Pizzica. The book was an artistic view of the dance through imagery and text, and as explained by the applicant; “the idea of the book stems from the desire to tell and retrace, through images of everyday life, the emotions of the female, the evils of the past, the struggles, aspirations, hopes … Through glances, postures, expressions and movements of the pizzica dance”.

    ·A 2011 Canadian television documentary entitled timeless Italy – Apulia, Land of the Sun which featured a segment on the applicant and her book.

    ·Pizzica dance performances, instrumentally supported by the Queensland Pop Orchestra at the Italian week festival in Queensland.

    ·Dance performances with the Viva Latina dance troupe at the Woodford Folk Festival in Queensland.

    ·Invitation as a guest lecturer by Griffith University during a course named ‘Italy through food’ where she conducted a seminary [sic] open to students and staff in 2013.

    ·Pizzica dance performances with various community groups in Australia including the Dante Alighieri Society Inc. Brisbane, Co.As.It Italian Family History Group and Ozcare.

15. The departmental and Tribunal files contain various forms of evidence of Ms Pennetta’s performances in Italy, Ireland, France, Spain, Canada, Japan, China and Switzerland since 2009 in various forms of dance, primarily the Pizzica but also the Argentinian Tango. She has qualifications in Argentinian Tango as well as traditional dance, and has received awards for her dance in Italy, Canada and Australia. The material submitted also included television performances from her from Canada and Italy as well as Australia, and evidence of her publication of the book referred to by the delegate.

16. During the course of the review the applicant also provided further evidence of the international recognition of the Pizzica dance, including references to articles from The New York Times, The Guardian, and The Independent. The article from The Independent[4] states for example that ‘The annual climax of the pizzica pizzica [sic] season, la Notte della Taranta, is now the biggest traditional music festival in Europe’, a comment supported by the other material provided. The applicant also provided evidence the Italian governing dance federation ANMB (Associazione Nazionale Maestri di Ballo) provides professional examinations in Pizzica Salentina for Master of Dance candidates[5].

    [4] Michael Day, Independent, La Notte della Taranta: Tradition vs contemporary beats brings conflict to Italian folk festival, 7 September 2015, available at accessed 22 December 2016

    [5] Website of ANMB, available at accessed 22 December 2016

17. On the basis of the evidence provided by Ms Pennetta the Tribunal is satisfied that while she began her career as a dancer in Italy, the publication of her book led to her recognition as an artist and to invitations to perform internationally, and that Ms Pennetta has an internationally recognised record of exceptional and outstanding achievement in the arts.

18. Accordingly, the Tribunal finds that the applicant meets the requirements in cl.858.212(a).

19. In relation to whether Ms Pennetta is still prominent in the arts, the Tribunal has had regard to the evidence set out above which establishes that she continues to receive international recognition for her dance. The Tribunal is satisfied on the totality of the evidence that Ms Pennetta remains a highly regarded dancer who is still prominent internationally in her area.

20. Given the above, the Tribunal finds that Ms Pennetta meets the requirements of cl.858.212(2)(b).

21. As to whether she would be an asset to Australia, the Tribunal has had regard to the evidence from Mr Pickett, which is supported by other references provided to the Department and to the Tribunal attesting to Ms Pennetta’s recognition both academically and artistically as a dancer in Australia, and to the evidence provided as to her involvement both academically and artistically in her area in Australia. The Tribunal has also had regard to departmental policy on the matter, which notes that ‘‘Asset’ does not only refer to economic benefit. It could also refer to social and/or cultural benefit to the Australian community’[6].

    [6] See DIBP PAM - Sch2 Visa 858 - Distinguished Talent, accessed 22 December 2016

22. The Tribunal is satisfied on the totality of the evidence that Ms Pennetta would be an asset to the cultural life of the Australian community.   

23. Given the above, the Tribunal finds that Ms Pennetta meets the requirements of cl.858.212(2)(c).

24. In relation to Ms Pennetta’s employment, the Tribunal notes that Ms Pennetta has provided numerous letters of support regarding her achievements since she has been in Australia and the contribution she has made both academically and artistically in the field of the arts. Accordingly, the Tribunal is satisfied that applicant would have no difficulty in obtaining employment or becoming established independently in Australia in the field of the arts. 

25. Given the above, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(d)

26. A completed nomination (form 1000) has been provided by the Mr Pickett. The information provided by Mr Pickett on the form is set out above. The Tribunal has also had regard to information provided by Mr Pickett with the nomination, in which his background is described as follows[7]:

    [7] See accessed 7 December 2016

    Patrick Pickett has been a leader, performer, conductor, artistic director, educator, fundraiser and business advisor within the arts in Australia and overseas for more than 40 years.  …

    Patrick has become the new owner, Artistic Director/Conductor of the Queensland Pops Orchestra.  This iconic orchestra has been renowned for quality entertainment since it was formed by Colin Harper in the mid 80′s.  Patrick is delighted to lead the Pops on the next phase of its artistic evolution.

    Patrick was Chief Executive Officer of the Queensland Symphony Orchestra from January 2009 to June 2012. Prior to that appointment Patrick had a distinguished career in the Australian Defence Force (ADF).

    His 37-year career with the ADF began as an Apprentice Musician and culminated as Lieutenant Colonel, Director of Music Army, Head of Corps of the Australian Army Band Corps and Commandant of the Defence Force School of Music – a position he held for five years.

    He completed a Bachelor of Music at the University of Melbourne and is currently completing a Master of Music in Instrumental Conducting at the Queensland Conservatorium of Music, Griffith University.

    Patrick was part-time Director of Music for the Riverina Conservatorium of Music in Wagga Wagga and Founding Chair of the Independent Conservatorium of Music Council in NSW.  He is also the founding Director and conductor of the UQ Wind Symphony.

    In 1985 Patrick attended the Royal Military School of Music in London where he completed the Bandmasters course. He also completed Licentiate and Associate Diplomas in music at the Royal College of Music, the Royal Academy of Music and Trinity College of Music London where he was admitted as Fellow in Conducting in 1988.

    Patrick has been honoured a number of times throughout his military career. He was appointed Adjunct Professor to the University of Queensland (UQ), lecturing in Multi Instrumental Pedagogy, Instrumental Conducting and Group Music Skills. He was appointed as a Federal Examiner with the Australian Music Education Board (AMEB) and Defence Music. He was also appointed to the AMEB (QLD) Panel of Examiners and Advisor (Instrumental and Voice).

    He has been awarded the Australian Active Service Medal (East Timor clasp) and the Australian Service Medal (Bougainville clasp) after he commanded bands on two tours of East Timor and three in Bougainville. In 1997 he was awarded Conspicuous Service Medal in the Australia Day Honours List for services as Officer Commanding and Music Director of the Australian Army Band Kapooka.

    Lieutenant Colonel Pickett commanded the Tri-Service Band element of the Commonwealth Games in Melbourne, Australia, in March 2006.  On an international level, Lieutenant Colonel Pickett contributed as the Senior Music Director to the Brunei International Military Tattoo 2006.  In August 2007, he was Artistic Director and Concept Designer for the Pacific Armies Chiefs Conference in Sydney. A highlight was being appointed Music Director for the 90th Anniversary Celebrations at Anzac Cove, Gallipoli 2005.

27. On the basis of this information, aspects of which the Tribunal has verified by accessing other open source material including the websites of Australian Army and the Queensland Symphony Orchestra, the Tribunal is satisfied that Mr Pickett is an Australian citizen who has a national reputation in the arts, and that the Form 1000 produced by Ms Pennetta meets the requirements of the Regulations.  The Tribunal notes that the requirement of an ‘approved form’ at time of application does not mean that the form needs to be assessed when the application is made. It simply means that the form needs to be the current approved version of the form 1000: see the definition of approved form in regulation 1.03.

1. The Tribunal notes that sub-paragraphs (f) is not applicable in this case.

2. As the applicant meets all of the applicable requirements in cl.858.212(2), the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

   CONCLUSION

3. Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa.

   DECISION

4. 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 of the Regulations.

   Bruce Henry
   Member