Barone (Migration) - [2023] AATA 3649

Barone (Migration) [2023] AATA 3649 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Riccardo Barone
CASE NUMBER:  2013049
HOME AFFAIRS REFERENCE(S):          BCC2018/3152142

MEMBER:Antonio Dronjic
DATE:13 October 2023
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 criteria in cl 858.212 of Schedule 2 to the Regulations.

Statement made on 13 October 2023 at 2:35pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the arts – pianist and composer – international composition competition winner – international festival performances and compositions for films – employment in Australia – relevant qualifications – still prominent – asset to the Australian community – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Gaffar v MIMA [2000] FCA 293
Prabhakaran v MICMA [2023] FedCFamC2G 357
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Springs v MICMSMA [2020] FCCA 371
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Zhang v MIMA [2007] FMCA 664
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2020 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 August 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant applied to the Tribunal on 20 August 2020, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
The Tribunal noted the Department’s uploaded unrelated electronic file and, on several occasions, requested the Department submit a copy of its file related to Mr Barone’s application for a Subclass 858 visa. As of the day of this decision, the Department has failed to do so.
On 21 August 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of cl 858.212 of the Regulations.
On 4 September 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A. On 18 September 2023, the applicant submitted a bundle of notes relating to his work in music.
According to the primary decision record, the applicant has been nominated for the visa by Australian citizen Mr Sankey Thomas Gene. He did not attend the hearing. The applicant is applying for a distinguished talent visa based on his achievements in the field of arts, specifically as a ‘Pianist and Composer’.
The applicant appeared before the Tribunal on 19 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Wendy Brooks, the CEO of the Young Regional Conservatorium, where the applicant is currently employed as a part‑time piano teacher.
The applicant is 41 years of age and a citizen of Italy. He first arrived in Australia as a holder of a visitor visa. From August 2015 to July 2018, he was a holder of student visas. In Australia he studied an Advanced Diploma in Business Management. He has a partner who is an Australian citizen. They have been in a relationship for almost seven years, but they do not live together. His partner lives in Adelaide.
The applicant has completed a Bachelor of Piano, a Master of Wind Band Conducting and a Master of Composition at Conservatorio di Napoli San Pietro a Majella in Italy in 2013.
Mr Barone gave evidence that in Italy, he performed as a solo pianist on more than 40 occasions. Since arriving in Australia, he performed as a solo pianist on seven or eight occasions. In addition to performing as a pianist, he composed over 200 pieces of music. Some of his music was recorded.
In September 2004, he won the first prize at international composition competition ‘Antonio Manoni’ for his composition ‘Evazione IV’. He gave evidence that subsequently he entered many other competitions but did not receive official awards.
He is and has been employed in Australia as a part-time piano teacher at the Young Regional Conservatorium since May 2021. He stated that he is earning approximately $80,000 from this job.
The Tribunal explained the requirements of cl 858.212(2)(a)(iii) and asked the applicant to state what he considered to be an internationally recognised record of exceptional and outstanding achievements.
In his response, the applicant reiterated that he completed a Bachelor of Piano, a Master of Wind Band Conducting and a Master of Composition at Conservatorio di Napoli San Pietro a Majella in Italy, and that in 2004, he won the first prize at an international composition competition.
He further stated that his composition titled Jesusenex was premiered by the Orchestra di Fiati San Pietro a Majella and conducted by Maestro Cav. Paolino Addesso. He added that he performed at the Adelaide Fringe Festivals in 2020 and 2021 and that some of the music he composed was recorded and released by ‘ClassicaViva’ – a record label from Italy.
In addition, Mr Barone gave evidence that he composed music for Mr Peter Maddern’s documentary film about Sir Hubert Wilkins and for the documentary on the art of cameos by Balzano Cammei. He was engaged as a consultant in the organisation of a concert titled ‘A Tribute to Ennio Morricone’ performed in Adelaide in October 2020 and sponsored by the Italian Consulate.
Ms Brooks is a CEO of the Young Regional Conservatorium. She confirmed in her evidence that she provided a written statement to the Tribunal dated 30 August 2023 and that everything written in that statement is true and correct. The witness explained that the Young Regional Conservatorium consists of 17 conservatoriums located in regional Australia and employs over 500 teachers.
Ms Brooks gave evidence that the applicant will be able to maintain his employment at the Young Regional Conservatorium in the future and that some of the music he composed is now used for music exams.
Mr Barone was granted additional time, until 26 September 2023, to provide additional documents in support of his application. On 23 September 2023, the Tribunal received further documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment B.
On 25 September 2023, the Tribunal received further documentary evidence from the applicant. The list of documents submitted is attached to this decision record as Attachment C.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Distinguished Talent (Residence) (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, or have provided specialised assistance to the Australian Government in matters of security.
The issue in the present case is whether the applicant meets the requirements of cl 858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl 858.212 of Schedule 2 to the Regulations.
The application was refused on the basis that the applicant did not meet the requirements of cl 858.212(2)(a) and therefore cl 858.212. This clause 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.
(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:
(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or
(b) the Director-General of Security;
the applicant has provided specialised assistance to the Australian Government in matters of security.
The applicant has not made any claims in relation to cl 858.212(4).
The applicant’s claim depends on whether he can satisfy cl 858.212(2)(a)(iii) of Schedule 2 to the Regulations. At the outset, the Tribunal notes that this is a time of application criteria. However, In Prabhakaran v MICMA,[1] the Court held that this did not connect grammatically to the terms of cl 858.212 and that the text of the clauses under the subheading did not support any general conclusion that the criteria in that part spoke exclusively to matters which must be satisfied at the time of application. Rather, cl 858.212 allows a decision‑maker to consider events and circumstances that arise between the date of the visa application and the date of the decision.
[1] Prabhakaran v MICMA [2023] FedCFamC2G 357 at [56].
Internationally recognised record of exceptional and outstanding achievement
The Tribunal observes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl 858.212(2)(a) is not defined in the Regulations. However, the Tribunal notes that the concept of ‘record of exceptional and outstanding achievement’ has been the subject of judicial consideration.
In particular, the Courts have 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. As a result, a ‘record’ is an aggregation or a list, not necessarily a large aggregation or a long list.[2]
[2] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].
‘Achievement’ as it appears in the relevant criterion is capable of denoting a single achievement and also of operating as a mass noun to denote two or more achievements.[3]
[3] Springs v MICMSMA [2020] FCCA 371 at [61].
In addition, the Courts have held that in determining whether the applicant has a ‘record of exceptional and outstanding achievement’, the criterion requires demonstrated excellence in the relevant occupation which is out of the ordinary. Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs, French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’.[4]
[4] Gaffar v MIMA [2000] FCA 293 at [20].
As a result, the Tribunal acknowledges that the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.
In considering this issue, the Tribunal has had regard to the Department’s Procedures Advice Manual related to the distinguished talent visa. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209, Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision‑makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
The applicant has conveniently listed his achievements in a document attached to this decision as Attachment C. It is a long and impressive list that includes awards for composition, composing and recording albums, composing music for movies, and performing as a pianist. In addition, the Tribunal finds that the applicant’s qualifications, which include a Bachelor of Piano and two Masters (Conducting and Composition), are relevant to the assessment of his exceptional and outstanding achievements.
The Tribunal notes that most of the applicant’s success in composing music and performing as a pianist has been in Italy and Australia. The Tribunal finds that there is considerable support within the applicant’s nominated field in Australia and overseas. The list of supporting letters is noted in Attachment A to this decision. The Tribunal accepts the evidence of the applicant’s referees who each attest to the applicant’s skill and talent as a pianist and composer, and his prominence in both Italy and Australia.
The Tribunal has considered the applicant’s submissions and oral evidence, evidence provided by Ms Brooks, numerous letters of support, the applicant’s exceptional formal qualifications, his achievements at an international composition competition and unreserved support provided by musicians and composers from Australia and Italy. The Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement and accordingly meets the requirements of cl 858.212(2)(a).
Is the applicant still prominent in the area?
Given the contemporaneous nature of the applicant’s achievements in satisfaction of cl 858.212(2)(a), the Tribunal is satisfied that he has also demonstrated prominence in the area at the time of application and the Tribunal decision.
The applicant composed over 200 pieces of classical music and performed at various festivals in Australia, including Adelaide Fringe Festivals in 2020 and 2021. He composed music for movies and conducted orchestras. Ms Brooks gave evidence that the applicant remains active as a composer. His recent composition titled ‘Autumn in Young’ is used by the school as part of the students’ examination program.
Accordingly, the Tribunal finds that the applicant meets the requirements of cl 858.212(2)(b).
Asset to the Australian community
Clause 858.212(2)(c) requires that the applicant would be an asset to the Australian community.
According to Mr Coleborne’s statement of 25 August 2023, in addition to teaching at the Young Regional Conservatorium, the applicant is travelling to regional schools in Australia providing individual tuition to students in isolated rural communities. Ms Brooks wrote that the applicant is also providing classroom music programs and choral programs at various public and Catholic schools in regional Australia.
Both Ms Cooke MP, Member for Cootamundra, and Cr R B Firman, Mayor of Temora Shire Council, provided letters in support of the applications expressing their views that the applicant is an asset to the Australian community. The applicant provided evidence of voluntary performances and participation in cultural events in Australia.
Based on the evidence before it, the Tribunal is satisfied that the applicant is broadening the musical scope and strengthening the classical music industry in Australia. The Tribunal accepts that the applicant has much to offer the Australian community as a composer, pianist and teacher. Given the above, the Tribunal finds that the applicant meets the requirements of cl 858.212(2)(c).
Obtaining employment, or becoming established independently, in Australia
Clause 858.212(2)(d) requires the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area. The applicant is and has been employed at the Young Regional Conservatorium as a music teacher since May 2021. Ms Brooks gave evidence that the applicant will be able to maintain his employment at the Young Regional Conservatorium in the future.
The Tribunal is satisfied that the applicant will have no difficulty continuing to find employment within the music industry. Therefore, the Tribunal is satisfied that cl 858.212(2)(d) is met.
Completed approved form 1000
The final subclause within cl 858.212 that must be met is cl 858.212(2)(e). This subclause requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. According to the primary decision record, a completed approved form 1000 was signed by Australian citizen Mr Sankey Thomas Gene.
According to open-source information, for 12 years Mr Gene sang with the State Opera of South Australia, taught music at the Elder Conservatorium and worked as a music journalist and correspondent for various music magazines.
Given the above, the Tribunal finds that the applicant meets the requirements of cl 858.212(2)(e). The Tribunal also finds that the criterion in cl 858.212(2)(f) does not apply as the applicant was over 18 and under 55 at the time of application.
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.
DECISION
The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl 858.212 of Schedule 2 to the Regulations.
Antonio Dronjic
Member

Attachment A: Document List
·Letter from The Garage International signed by Shakti dated 25 August 2023.
·Letter from Newcastle Fringe signed by Philip Aughey dated 24 August 2023.
·Letter of support from James Coleborne dated 25 August 2023.
·Letter of support from Emma Luxardo dated 24 August 2023.
·Letter from ClassicaViva record label signed by Stefano Ligoratti dated 27 August 2023.
·Letter of support from Peter Maddern dated 25 August 2023.
·Letter from Smokescreen Productions signed by Tim Marriott dated 24 August 2023.
·Letter of support from Dr Stefano Bona dated 28 August 2023.
·Letter from The Anglican Parish of St John the Evangelist signed by Barbara Murray dated 30 August 2023.
·Letter from the Consul of Italy in South Australia signed by Adriano Stendardo dated 24 August 2023.
·Letter from Adelaide Nepalese Cricket Association signed by Bijaya Joshi and Santosh Adhikari undated.
·Letter from Metro Bass Band INC (SA) signed by Robert Coombe undated.
·Letter from Alla’s Music Studio signed by Alla Guberman dated 24 August 2023.
·Letter from Young Regional Conservatorium signed by Wendy Brooks dated 30 August 2023.
·Letter from Steph Cooke MP, Member for Cootamundra dated 28 August 2023.
·Letter from The Office of the Mayor at Temora Shire Council signed by Cr R B Firman OAM dated 30 August 2023.
·Letter from Murrumburrah Public School signed by Renee Ford undated.
·Letter of support from Leisa Dunford from Young Regional Conservatory dated 30 August 2023.
·Letter of support from Amanda Isbester from Young Regional Conservatory dated 30 August 2023.
·Letter of support from Ingrid Owens from Young Regional Conservatory dated 30 August 2023.
·Letter of support from Clan Muller from Young Regional Conservatory dated 30 August 2023.
·Letter of support from Trevor Taylor dated 23 August 2023.
·Letter of support from Eduardo Ruiz undated.
·Translated and untranslated copies of certificate of attendance at Raimondo Sorrentino Civic School of Music dated 12 June 2014.
·Letter of support from Ann Carr-Boyd dated 1 September 2023.
·Translated and untranslated certificate of attendance from Associazione Musicale dated 10 January 2005, 6 June 2014.
·Translated and untranslated concert programs dated 28 July 2007 and 29 July 2007.
·Translated and untranslated certificate of attendance from Music Conservatorium San Pietro A Majella dated 6 June 2014.
·Translated and untranslated certificate from Federico II University of Naples signed by Dr. Mauro R. Fario dated 21 July 2008.
·Translated and untranslated certificates from City of Acerra Raimondo Sorrentino Civic School of Music dated 12 June 2014.
·Translated and untranslated poster for Riccardo’s Silence dated 30 October.
·Translated and untranslated poster for Music as a Therapeutic Tool dated 6 November 2020.
·Letter of support from Giulia Pellini dated 28 August 2023.
·Images of Mr Barone playing music undated.
·Translated and untranslated poster for Piazza Bellini in Music concert dated 21 June 2002.
·Translated and untranslated copies of concert program undated.
·Translated and untranslated copies of article titled: ‘The soundtrack main theme overview of Ethan 2068 in Rome’ dated 19 June 2009.
·Translated and untranslated concert program undated.
·Translated and untranslated invitation from Neapolitan Association of Cultural and Environmental Heritage dated 10 January 2003.
·Image of Mr Barone playing at 891 ABC Radio dated 31 March 2016.
·Images of Amore E Morte show listing at Adelaide Fringe undated.
·Flyer and program for ‘Tuesday on Flinders’ presented by Flinders Street Baptist Church dated 7 May 2019.
·Letter of support from Rosemary Beal dated 1 September 2023.
·Two letters from St Joseph’s school Grenfell signed by Katrina McGrath dated 24 and 31 August 2023.
·Photo of award from Associazione Musica Antica e Contemporanea dated 29 September 2004.
·List with links and images of Mr Barone’s work 4 September 2023.
·Letter of support from Fabrizio Fiorentino undated.
·Translated and untranslated certificate of attendance from City of Gesualdo Italian Institute of Jesualdian Studies dated 2-4 June 2012.
·Translated and untranslated certificate of participation from Music Conservatorium ‘San Pietro a Majella’ of Naples dated 16-19 January 2006 and 28 May 2012.
·Translated and untranslated certificate from Tivoliclassica International Classical Music Festival 10^th Edition dated 29 July 2007.
·Certificate of participation for Riverina Piano Pedagogy Conference dated 25 May 2021.
·Letter of support from Marta Markowska, former manager of Radio Italia Uno 87.6FM manager undated.
·Translated and untranslated letter from Agglutination Cultural Association signed by Cafaro Carmela Anna dated 24 August 2020.
·Letter of support from Fringe Mount Gambier signed by Louise Adams, artistic director dated 29 August 2023.
·Letter from Australian Guild of Screen Composers signed by Stephanie Li.
Attachment B: Document List
·Email and reply to the Canadian army dated 23 September 2013.
·Confirmation of ongoing employment from Young Regional Conservatorium signed by Dr Wendy Brooks undated.
·Letter of support from Louise Grant dated 21 September 2023.
Attachment C: Document List
·List of Mr Barone’s awards and achievements, concerts, letters from peers and international artistic bodies, academic qualifications, various articles and future plans undated.