Aguirre Farias (Migration)

[2019] AATA 3101

Aguirre Farias (Migration) [2019] AATA 3101 (6 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Katherine Eugenia Aguirre Farias
Mr Esteban Ignacio Rodriguez Moraga

CASE NUMBER:  1815151

DIBP REFERENCE(S): BCC2017/3655142 BCC2017/3842528

MEMBER:Warren Stooke AM

DATE:6 May 2019

PLACE OF DECISION:  Melbourne

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:

·cl.858.212 of Schedule 2 to the Regulations; and

·The second named applicant meets clause858.311 of Schedule 2 of the Regulations for a Subclass 858(Distinguished Talent) visa.

Statement made on 06 May 2019 at 3:23pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) visa – Subclass 858 – internationally recognised record of exceptional and outstanding achievement – Latin American Folk Music performer – academic authority – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 858.212

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 4 May 2018 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 6 October 2017. The delegate refused to grant the visa on the basis that that the applicant did not meet the primary criteria specified in the Regulations for the grant of a Distinguished Talent (Migrant) (subclass 858) (Class BX) visa .

3. The applicants appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Estaeban Moraga; Agustin Vargas and Caromina Aguilieng de Snow. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

4. For the following reasons, 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: cl.858.212 of Schedule 2 to the Regulations.

CONSIDERATION OF CLAIMS AND EVIDENCE

Relevant law

1. The issue in dispute in this review is whether the visa applicant meets the requirements of cl.858.212(1). This clause relevantly provides: (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.

   What does ‘exceptional’ mean?

   For858.212 (2) (a), applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in the field.

   ‘Internationally recognised’ in this context means that a person’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.

   ‘Exceptional and outstanding’ should be accorded ordinary dictionary meaning within context.

   Policy requirements

   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 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 achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has would attract similar acclaim in those countries.

   Given the ordinary dictionary meanings, in order to have a record of exceptional and outstanding achievement 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.

   Assessing this criterion

   In assessing the applicant’s record of achievement, officers may take into account information such as, but not necessarily limited to:

   ·information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement.

   ·supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia

   ·awards or higher qualifications received from internationally recognised institutions or organisations.

   ·details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international sporting bodies, sporting scholarships received a newspaper and magazine articles testing to achievements.

   The policy guidelines in the PAM3 reflect the following view in relation to the requirement of international recognition:

   International recognition required

   Achievement in a profession, a sport the arts or academia and research that has not would be not be recognised at an international level would not be regarded as exceptional and outstanding.

   It is expected that an applicant’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well is international standing. In determining the international standing of the applicant, officers should consider:

   ·    the international standing of the country, with the applicant’s achievements were realised, in respect of that particular field.

   ·    the standing of the achievement in relation to Australian standards and new line the standing of the achievement in relation to international standards.

   For example an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional outstanding achievement if the:

   ·    field is undertaken and recognised in a number of countries including Australia and new line.

   ·    achievement would be similarly recognised in relation to international and Australian standards for that field.

2. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it. Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the regulations, the Tribunal is required to depart from it. The Tribunal has taken into account the individual circumstances of the applicant.

3. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

4. The issue in the present case is whether the applicant is a ‘distinguished talent’, whom meets the criteria prescribed in cl.858.212 of Schedule 2 to the Regulations.

5. The applicant arrived in Australia in June 2013, as a recipient of a scholarship from the Chilean government to undertake a PhD at Monash University. Whilst the applicant commenced these studies, the applicant subsequently withdraw because of the limitation on her English skills. The applicant has a partner, with whom she lives with and she has a document business with its own ABN.

6. The applicant gave evidence that she sold her house in Chile to support her sojourn to study in Australia and after withdrawing from the PhD course at Monash, she undertook studies at the Chisholm Institute to assist in her language skills, through participation.

7. The applicant gave evidence that she has studied music in her home country to the Master’s degree level and is an accomplished researcher, academic and teacher. The applicant is also a soprano, who specialises in Latin American Folk Music.

8. The applicant stated that she recorded several music tracks, which have included music that was distributed by the Catholic diesis in Santiago, throughout Chile and Mexico and other parts of South America; and performances of her work has included a theological concert at the “Palemo” in Bona Series, Argentina.

9. The applicant gave evidence that she has performed at the principal theatre in Santiago, as well as providing unique live concerts in Latin American music venues in Spain.

10. The applicant is working as a performer, where her specialty is Latin American Folk Music and she has achieved acclaimed status internationally. The Chilean Consul-General in Melbourne, provided a letter of support for the applicant with the following comment:

    “I have the honour of writing to you regarding Ms. Katherine Aguirre Farias, a Chilean music teacher and performer, who has made a valuable contribution to the Chilean community in Victoria.

    Ms. Aguirre Farias graduated from Universidad Metropolitana de Ciencias de la Educacion in 1994, and since then has had a distinguished career as a performer Chilean folk music, both individually and as a member of relevant groups.

    She was a member of the "Conjunto Folkloric Palornat", founded by Ms. Margot Loyola (1918­-2015) one of the most renowned Chilean folk musicians and researchers, and recipient of the Chilean National Prize for Musical Arts in 1994.

    As a member of "Paloma” , Ms. Aguirre Farias performed in many important venues, including the Santiago Municipal Theatre, the most renowned arts centre in the Chilean capital. She has also performed at the San Bernardo Folk Festival, one of the most important of its kind in Chile.

    During her years in Australia, Ms. Aguirre Farias has shown a strong commitment to promote Chilean culture and music, performing in numerous occasions and, by doing so, providing a great service to our community.

    In this regard, I am persuaded that Ms. Katherine Aguirre Farias combines great musical talent - and important career achievements- with a serious commitment and willingness to spread the Chilean musical traditions and, by doing so, to contribute to Victorian multicultural artistic environment.”

11. The applicant gave evidence that she has performed, in Palemo, with the world renowned Latin American singer and instrumentalist, Jaime Torres, who in 1974, along with his band, participated in the opening show of the World Cup soccer in Germany. Torres, the musician, composed in 1988 the music for the film "La deuda interna", that was nominated for an Oscar.

12. The Tribunal asked the applicant why she considers herself ‘distinguished’ and she provided the Tribunal with the advice that she is not only an accomplished singer, who has performed in Chile, Spain, Peru, Argentina and Australia but is also an academic authority on the cultural background and research of the origins of Latin American folk music, which is fundamental to the Latin American cultural heritage. The applicant stated that what makes her different is that she can not only sing but she can impart the heritage and  cultural origins of the music through her academic work and classes, which she regards as highly sought after in Victoria, particularly given that she is the only person from that background to have this skill.

13. In terms of international acclaim, the applicant gave evidence that she has performed in Spain in local theatres and in the “Palermo” Bona Series.

    Evidence of Mr. Vargas

14. The witness provided the following evidence regarding the ‘distinguished’ status of the applicant. He stated that he first met the applicant in Chile, in about 1977, when she was 14 or 15 and the witness, at the time, was playing in a Latin American band.

15. The witness stated that the President of the Music Academy in Chile, Mario Rojas, knew of the applicant from discussions he had with Mr. Rojas, recently.

16. The witness stated that the reason he was attending the hearing was to inform the Tribunal that the applicant is one of the most “exceptional” singers he had worked with, including Australian talents like Kate Cebrano. He stated that the applicant is a great singer.

    Evidence of Ms. Caromina Aguilieng de Snow

17. The witness gave evidence that the applicant had worked for the Frankston Arts Centre as a singer and representative of her culture. She stated that they Arts Centre could not engage anyone else because of the uniqueness of the songs (folk songs of Latin America) and that the event included the involvement of the University of Melbourne.

18. The witness gave evidence that from an international perspective the applicant has performed with Torres from Argentina, who specialises in the ten string instrument. The applicant and Torres performed together at Federation Square. Further, the applicant’s academic background has been part of the Arts Centre’s offering with insights into the cultural background to the music and folk songs of Latin American.

    Evidence of Mr. Estaeban Moraga

19. The witness is the partner of the applicant and gave evidence that they both came to Australia on student visas and he stressed that the applicant and himself are both professionals.

    Written Submission of Yunuen Perez

20. The submission advised the Tribunal, that Yunuen Perez has the status as a Curator, Producer and Artist, who has worked with institutions, including the Melbourne Theatre Company and the National Gallery of Victoria. The submission included the following:

    “My name is Yunuen Perez, and I am a curator, creative producer and advocate for the inclusion of Latin American cultures in the cultural fabric of Victoria.

    Throughout my 10 years professional career in the arts sector in Melbourne, including Melbourne Theatre Company, National Gallery of Victoria and more recently as a Creative Producer at Arts Centre Melbourne, I have come across a myriad of artists from Latin American background working in various disciplines and presenting work from their countries of origin and original work produced from their experience living in Australia as migrants.

    In November 2018, I co-curated the exhibition From Latin American Stories to Victorian History: Building Bridges supported by Public Records Office Victoria and the Victorian Government. The exhibition shared and presented the social, economic and cultural achievements and contributions from the Latin American community to Victoria.

    This is how I came across Katherine Aguirre Ferias, a musician and singer from Chilean origin living in Melbourne. Her instrument is her voice. Through her music and presentations around Victoria, she has connected audiences from different parts of Latin American and has shared the language with diverse audiences.

    I believe her most significant contribution to Melbourne and the Latin-American community residing in Victoria is the preservation of language and cultural traditions from the American continent. Her commitment to her community and her practice has been recognised by some community and cultural festivals in Victoria. She has been the recipient of awards and has a good media profile in local and community newspapers.

    Kathy is a tour de force; her work as an artist representing her culture and bringing the knowledge to Australia is invaluable, I recommend her to you as an artist devoted to excellence and innovation in the arts.”

    Agent’s Submission

21. The applicant’s agent submitted that it is a difficult case in terms of providing proof, when it is not readily accessible, as the applicant did not appreciate at the time, when she was performing in a multiplicity of venues around the world, that she would need to maintain documentation for those appearances and that this would be important.

22. The representative stated that the applicant has a high level of qualification as a performer and teacher of music, together with a high level of multi-cultural contribution to offer in Australia because South America is rich in dance music and art.

23. The Tribunal has considered the material submitted prior to the hearing, the evidence of the applicant and the witnesses, who have provided evidence and the Tribunal is satisfied, on the basis of the evidence, that the applicant meets the requirements of cl.858.212 for the following reasons:

    a.The applicant has completed academic studies at a very high level, including a Master’s degrees from the Universidad Metropolitana de Ciencias de la Educacion in Santiago, Chile;

    b.The applicant has performed internationally in the company of acclaimed artists;

    c.The applicant has produced a multiple of CD’s for distribution internationally and was particularly the subject of a major recording and distribution organised by the Diesis of the Catholic Church in Santiago, which was distributed throughout South America;

    d.The applicant has unique skills in Latin American folk music, which is regarded within the Australian Arts community as adding to Australia’s rich multicultural environment and brings the unique folk music of Latin American to Australia;

    e.The applicant is an accomplished academic, who has been engaged in educating the Australian community ( Frankston Arts Centre) in Latin American music and folk lore, together with performing within the community (Federation Square Latin American concert with internationally acclaimed Torres);

    f.The applicant is a specialist in her unique field of talent and intends to continue employment as a researcher, performer and teacher in this area;

    g.The applicant’s Form 100 was provided by the Chilean Club of Victoria.

24. 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.

25. As the secondary applicant is a member of the family unit of the applicant, the Tribunal finds that he is able to meet the requirements in cl.858.311.

26. Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the grant of subclass 858 visas.

27. Further the applicant made an application pursuant to s351 of the Migration Act 1958 for a reference of the application to the Minister, in the event that the Tribunal was to affirm the decision of the delegate. Given that the Tribunal has remitted the application for further consideration, the Tribunal has decided not to refer the application to the Minister.

DECISION

1. 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:

   ·cl.858.212 of Schedule 2 to the Regulations; and

   ·The second named applicant meets clause858.311 of Schedule 2 of the Regulations for a Subclass858(Distinguished Talent) visa.

Warren Stooke AM
Member