Cha (Migration)

[2019] AATA 1208

Cha (Migration) [2019] AATA 1208 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Seongwon Cha

CASE NUMBER:  1814064

DIBP REFERENCE(S):  2017/3626115 BCC2017/3785742

MEMBER:Mary Sheargold

DATE:4 April 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

Statement made on 04 April 2019 at 12:00pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – characterisation of applicant’s job – barista with a specialised talent in latte art – scope of the definition of ‘profession’ – any vocation, occupation, etc – one’s habitual employment – internationally recognised record of exceptional and outstanding achievement – free pour latte art – won the World Barista Championship in Latte Art in 2015 – current prominence in the field – travels across the world judging national and international latte art competitions – conducts workshops teaching latte art both nationally and internationally – asset to the Australian community – decision under review remitted

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

CASES
Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA & Anor [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 24 April 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 4 October 2017.  He has claimed his distinguished talent as a latte artist. The delegate refused to grant the visa on the basis that the applicant does not satisfy cl.858.212(2)(b) of the Regulations because the delegate considered he was an emerging talent (rather than a distinguished talent) and that he did not demonstrate current prominence in his field.

3. The applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ross Quail, Mr Bruno Maiolo, Mr Kieran Westlake, and Mr Brent Williams.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. 

7. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.”

8. 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.

9. Relevantly, cl.858.212(2) requires that the applicant:

   ·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

   ·is still prominent in the area; and

   ·would be an asset to the Australian community; and

   ·would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and

   ·produces a completed, approved Form 1000; and

   ·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.

10. The applicant has not made any claims in relation to cl.858.212(4).

11. In determining whether the applicant meets cl.858.212(2), all of the stated subclauses must be met.  The Tribunal notes that the applicant has produced a completed, approved Form 1000 in accordance with cl.858.212(2)(e), and that cl.858.212(2)(f) is not relevant to the applicant.

12. The Tribunal has considered whether the applicant meets the requirements set out in cl.858.212(2)(a)-(d) inclusive as set out below.

    Does the applicant have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research?

13. Clause 858.212(2)(a) requires the applicant to have an internationally recognised record of exceptional and outstanding achievement in one of four areas: a profession, a sport, the arts, or academia and research.

    A profession, a sport, the arts, or academia and research

14. The first question to address is which of these fields the applicant’s talent as a latte artist falls within.

15. In her primary decision record, the delegate states that “the applicant has applied for the grant of a Subclass 858 Distinguished Talent visa based on achievements in the field of the Arts, specifically as a Latte Artist.” (emphasis added)

16. However, the Tribunal notes that in his application form for the visa, the applicant indicated he seeks acknowledgement for his distinguished talent in a profession.  The Tribunal concurs with the applicant, and notes that latte art is a specialised talent within the work of a barista, not a talent in the field of “the arts”.

    The applicant’s profession

17. At the hearing, the Tribunal explored the definition of the applicant’s profession at length.  The Tribunal notes that there is no definition of “profession” in either the Regulations or the Act.  While the Tribunal is not bound by Departmental policy, the Tribunal notes that there is no discussion of the scope of the term “profession” in the Department’s PAM3.

18. Therefore, the Tribunal has had recourse to the common understanding of the term “profession”.  According to the Macquarie Dictionary, the primary definition of a “profession” is “a vocation requiring knowledge of some department of learning or science, especially one of the three vocations of theology, law and medicine” and the secondary definition is “any vocation, occupation, etc.”.  These definitions are very broad.  At the hearing, the Tribunal challenged the applicant, his witnesses, and his representative as to whether his work was that of a person working in a “profession”. 

19. Specifically, with reference to the Australian Council of Profession’s definition of “profession”[1] as expecting that a profession has, inter alia, a code of ethics, the Tribunal made analogies to professions such as law and medicine (as included in the primary definition of “profession” in the Macquarie Dictionary cited above), teaching, and other professions where people are bound by such codes.

    [1] See “A Profession is a disciplined group of individuals who adhere to ethical standards and who hold themselves out as, and are accepted by the public as possessing special knowledge and skills in a widely recognised body of learning derived from research, education and training at a high level, and who are prepared to apply this knowledge and exercise these skills in the interest of others.  It is inherent in the definition of a Profession that a code of ethics governs the activities of each Profession.  Such codes require behaviour and practice beyond the personal moral obligations of an individual.  They define and demand high standards of behaviour in respect to the services provided to the public and in dealing with professional colleagues.  Further, these codes are enforced by the Profession and are acknowledged and accepted by the community.”

20. Initially, the Tribunal asked the applicant what his job was.  The applicant advised the Tribunal that he is a consultant.  The Tribunal told the applicant that there was evidence before it indicating that the applicant is presently operating a café business with his wife.  The applicant stated that this was true, and that he works in the café several days per week, depending on how busy his consulting schedule is that week.  The applicant advised the Tribunal that his consulting practice is centred around providing training and coaching of baristas in latte art and specifically free pour latte art, which is the form of latte art in which the applicant has won the World Championship title.  When asked by the Tribunal to define his profession, the applicant stated his profession is “latte art judge”.

21. While the Tribunal acknowledges the unique achievements of the applicant as a latte artist and latte art judge, the Tribunal has considered the totality the applicant’s work and contribution to the community, and notes that it is his work as a barista that has given him the capacity to act as a consultant as well as a latte art judge.  The Tribunal notes the applicant’s commitment to latte art that involves daily practice (as the applicant informed the Tribunal at the hearing) and his regular work as a barista within his own café business.  The Tribunal therefore finds the applicant’s job is best characterised as a “barista” with a specialised talent in latte art.

22. The question for the Tribunal, then, is whether “barista” is considered as a profession within the ordinary meaning of the term “profession”.  At the hearing, the Tribunal heard evidence from Mr Ross Quail, the Head of the Competitions Committee at the Australian Specialty Coffee Association, who has been Australia’s head judge in the sensory division for competitions for 12 years.  Mr Quail described coffee itself as a profession, and also gave evidence that barista specifically is regarded as a profession in the coffee industry.  Mr Quail gave evidence indicating that baristas have the capacity to negotiate significant salary packages (that increase with experience and accolades such as placements in national and international competitions) and have the capacity to receive endorsements and sponsorships from coffee manufacturers and other participants in the coffee industry. 

23. Mr Quail gave evidence that Australia and specifically Melbourne is regarded as the epicentre of coffee in the world, and that global trends in coffee are based on actions from Melbourne and the work of those in the coffee industry in Melbourne including the applicant.  The applicant himself gave evidence that upon winning the World Barista Championship in Latte Art in 2015, the applicant had changed the way the industry approached free pour latte art.  The Tribunal accepts this evidence.

24. The Tribunal also heard evidence from Mr Bruno Maiolo, who has over 30 years of experience in the Australian coffee industry, and who is a board member of the Australian Specialty Coffee Association as well as the Director of Competitions and Judges’ Liaison for the Australian Specialty Coffee Association.  Mr Maiolo contended that barista is a profession because there is a distinction to be made between coffee makers and professional baristas.  Mr Maiolo stated that there is a high demand in Australia for professional baristas who make the art of making coffee their life’s work, and that these higher level baristas are considerably fewer in number than “coffee makers”.  The Tribunal accepts Mr Maiolo’s evidence in this regard.

25. The current President of the Australian Specialty Coffee Association, Mr Kieran Westlake, also gave emphatic evidence to the Tribunal that “barista” is now considered a profession within the hospitality industry.  The Tribunal accepts Mr Westlake’s evidence. At the conclusion of the hearing, the applicant’s representative indicated that he was concerned that the Tribunal’s approach to the term “profession” was restricted to jobs generally considered to sit in the top echelons of our society.  As stated at the hearing, this is not the Tribunal’s position, but rather was presented to the applicant and his witnesses as a base from which to test the scope of the definition of “profession”.

26. The applicant accepted that baristas are not bound by codes of ethics or similar codes as would be required to satisfy the primary definition of “profession” in the Macquarie Dictionary and the definition provided by the Australian Council of Professions.  However, the Tribunal gives weight to the evidence from the applicant’s witnesses, noting their considerable experience and expertise in the Australian coffee and hospitality industries, and accepts that “barista” could be a profession. 

27. As such, to determine whether “barista” is a profession, noting that it does not meet the primary definition of “profession” set out in the Macquarie Dictionary, the next consideration for the Tribunal is the definitions of “vocation” and “occupation”, as they fall within the secondary definition of “profession” in the Macquarie Dictionary.  This in turn invites the question of whether or not the applicant’s profession of barista can be considered as a “vocation” or an “occupation”.  The Macquarie Dictionary defines “vocation” as “a particular occupation, business or profession; a trade or calling.”  This definition is unhelpful and circular.  Similarly, the definition of “occupation” set out in the Macquarie Dictionary does not lead to a clear answer.  The primary definition of “occupation” is “one’s habitual employment; business, trade or calling.”

28. At its most basic level, barista would fall within the definition of “profession” for the purposes of cl.858.212(2)(a)(i) because it can be considered as “one’s habitual employment”.  The Tribunal notes that whilst not determinative as to whether or not it is a profession per se, “barista” is listed as an occupation in ANZSCO (ANZSCO code 431112).  The Tribunal also notes that there are dedicated courses of vocational training to become a barista, and that the applicant gave evidence that he completed both basic and advanced barista training courses with William Angliss in Melbourne before applying for his first job as a barista.

29. Given the weight of evidence before it, the Tribunal considers it appropriate to acknowledge barista as a profession for the purposes of cl.858.212(2)(a)(i).

    Internationally recognised record of exceptional and outstanding achievement

30. The next question is whether the applicant has an internationally recognised record of exceptional and outstanding achievement within his profession of barista.  The Tribunal notes that free pour latte art is a specialised skill for a barista, and the applicant’s skill in free pour latte art is the basis on which he seeks to distinguish himself from all other baristas.

31. 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: see Zhang v MIMA & Anor [2007] FMCA 664. The Tribunal is mindful of the reasoning in Gaffar v MIMIA [2000] FCA 293 that the legislative requirement does not require something that makes the visa applicant's record unusual or special or out of the ordinary.

32. The applicant won a number of free pour latte art championships in 2015, including the Melbourne Latte Art Smackdown Championship 2015, the Australian Specialty Coffee Association’s Australian Pura National Latte Art Championship, and World Coffee Events’ World Barista Championship in Latte Art, notably the only world championship level competition offered for baristas.  The Tribunal notes that the applicant is also a World Coffee Events certified judge for Latte Art.  At the hearing, the applicant gave evidence that he is the only person in the world to have won the World Championship title and also be certified by World Coffee Events to judge latte art at a world championship level. 

33. The Tribunal also notes the evidence of the applicant’s witnesses attesting that the applicant is unique insofar as he began training in latte art in 2014 and was able to win both regional and national titles, and the World Championship, in 2015 – only 12 months after he began to train.  The Tribunal heard evidence from multiple witnesses that it usually takes a barista 3to 5 years to become skilled enough in latte art to earn a podium finish (i.e. top 3) at the World Barista Championships, and that the applicant is acknowledged as an extraordinary talent as a free pour latte artist for his capacity to achieve this feat with less than 12 months of training.

34. Although the Tribunal is not bound by Departmental policy, it is worth noting that the approach to “exceptional and outstanding achievement” set out in PAM3 includes that applicants should be eminent in the top echelons of their field, and that they should demonstrate extraordinary and remarkable abilities and be superior to others in their field. Taking into account the evidence in paragraphs 32 and 33 above, the Tribunal finds that the applicant has a record of exceptional and outstanding achievement.  Further, the Tribunal finds that becuase the applicant is the only person in the world to have won the World Barista Championship in free pour latte art and to be certified by World Coffee Events as a world championship level judge in that discipline, his record of exceptional and outstanding achievement is internationally recognised.

35. Based on the facts set out above, the Tribunal finds that the applicant has an internationally recognised record of exceptional and outstanding achievement as a barista specialising in free pour latte art.

36. Therefore, the Tribunal finds that the applicant satisfies cl.858.212(2)(a) of the Regulations.

    Still prominent in the area

37. In the primary decision record, the delegate noted that the applicant had not competed in any international competition in latte art since 2015, nor did he hold any national titles of any country after that time.   The delegate found that “[s]ince 2015, [the applicant’s] participation in the Arts has been at a level not considered competitive enough to demonstrate current prominence in the field.”

38. At the hearing, the Tribunal inquired as to whether there were any other international-level competitions the applicant could have competed in after winning his world championship title.  Both the applicant and his witnesses confirmed that World Coffee Events’ World Barista Championships is the only international-level competition for baristas.  The applicant told the Tribunal that once the World Championship title is won by a competitor, although not barred from doing so, they do not re-enter the championships in the same category.  This was confirmed by the applicant’s witnesses, and the Tribunal accepts their evidence in this respect.

39. There is significant evidence before the Tribunal both on the Departmental file and the applicant’s submissions to the Tribunal demonstrating the applicant’s continued prominence as a latte artist since winning the World Barista Championship in Latte Art in 2015.  There is evidence that he routinely travels across the world judging national and international latte art competitions, and that he conducts workshops teaching baristas latte art both nationally and internationally, and that he has done so continuously since 2015. 

40. For example, the applicant provided the Department with certificates, letters of appreciation and letters of engagement both for judging latte art competitions at regional and national levels across Asia (such as the National Thailand Barista Championship in 2016 and 2017, conducting latte art workshops in Singapore in 2015, conducting workshops in Korea in 2015 and 2016, conducting workshops in Hong Kong and Indonesia in 2016, judging latte art competitions in China in 2017), and also for conducting workshops around the world at regular intervals from the time he won the World Barista Championship to the time he applied for his Subclass 858 visa. At the hearing, the Tribunal learned that the applicant gives a significant amount of his time to the Australian Specialty Coffee Association as a volunteer conducting workshops and judging latte art competitions. 

1. The applicant has also provided the Tribunal with considerable evidence regarding his current engagements as a latte art judge and his invitations to conduct latte art workshops around the world from the time his application was refused by the Department to today, such as invitations to work in Vietnam, Thailand, China, Italy, and that he is the 2019 Head Judge for the Australian Latte Art Championship, that he was the Head Judge for the 2018 Singapore Latte Art Championship, that he was a Visual Judge in the World Latte Art Championship in Budapest in 2017, and the Head Judge in the Thailand Barista Championship in 2017 and 2018.

2. The Tribunal notes that the Department’s policy in respect of cl.858.212(2)(b) set out in PAM3 suggests that “an applicant claiming distinguished talent in a particular area, but who has not been active at a high level in that area for more than 2 years, would not be regarded as retaining prominence in that area.”  The Tribunal finds that although the applicant has not competed in latte art competitions since 2015, he has maintained his prominence in the area through his extensive involvement not just in Australia but globally in judging latte art competitions as well as consulting, coaching, and running workshops in the area of latte art. 

3. There is significant evidence before the Tribunal demonstrating that the applicant is sought after around the world for his skills in latte art.  The Tribunal finds that the applicant was prominent as a latte artist at the time he applied for his Subclass 858 visa, and that he is still prominent as a latte artist today.  Therefore, he meets cl.858.212(2)(b) of Schedule 2 the Regulations.

   An asset to the Australian community

4. The applicant’s witnesses all attested to the strong involvement the applicant has within the Australian Specialty Coffee Association as a volunteer, as well as his general work in Australia coaching and consulting in latte art.  Mr Maiolo in particular described the applicant’s ability to impart his skills and knowledge to young Australian baristas as “invaluable” to the Australian coffee industry.  The Tribunal accepts the witnesses’ evidence in this respect.  The Tribunal also acknowledges that the applicant owns and operates a café business in Melbourne.  Further, the Tribunal accepts the witnesses’ evidence that Melbourne is regarded as the epicentre for global trends in coffee making including latte art, and that the applicant is sought after globally for his talent as a latte artist.  The Tribunal finds that the applicant contributes to the betterment of the Australian community not only economically, but socially and culturally as well, because his presence in Melbourne helps to enhance Melbourne’s reputation as the global leader in the coffee industry.

5. For these reasons, the Tribunal is satisfied that the applicant would be an asset to the Australian community.  Therefore, he meets cl.858.212(2)(c) of Schedule 2 to the Regulations.

   Obtaining employment or becoming established independently in Australia

6. There is evidence before the Tribunal demonstrating that the applicant has already become established independently in Australia through both his café business and his consulting practice.  The applicant’s witnesses attested that the applicant is highly sought after and his services as a latte art coach and consultant are in constant demand in Australia.  Therefore, the Tribunal finds that he meets cl.858.212(2)(d) of Schedule 2 to the Regulations.

7. As set out above, the applicant has provided a completed, approved Form 1000 with his application in satisfaction of cl.858.212(2)(e) of Schedule 2 to the Regulations and is not required to meet cl.858.212(2)(f) of Schedule 2 to the Regulations because he was not aged under 18 years or over 55 years at the time he applied for the visa.

8. The applicant therefore meets the requirements of cl.858.212(2) of Schedule 2 to the Regulations, which means he satisfies cl.858.212(1) of Schedule 2 to the Regulations.

   DECISION

9. 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.

   Mary Sheargold
   Member