CHIUNDIZA (Migration)

[2018] AATA 4749

CHIUNDIZA (Migration) [2018] AATA 4749 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Grace CHIUNDIZA

CASE NUMBER:  1608066

DIBP REFERENCE(S):  BCC2015/2807144

MEMBER:Jennifer Cripps Watts

DATE:6 December 2018

PLACE OF DECISION:  Sydney

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:

· Clause 858.212 of Schedule 2 to the Regulation for a Subclass 858 (Distinguished Talent) visa.

Statement made on 05 December 2018 at 5:00pm

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – applicant over 55 years of age – internationally recognised record of exceptional and outstanding achievement in a profession – current prominence in the field of music therapy – prominent and important work – established business in Australia – exceptional benefit to the Australian community – decision under review remitted

LEGISLATION

Migration Act 1958, 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 19 May 2016 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 25 September 2015. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(2)(f) because she was over 55 years of age at the time of application and the delegate was not satisfied she would be of exceptional benefit to the Australian community.

3. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

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 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 (cl.858.212(2)) or have provided specialised assistance to the Australian Government in matters of security (cl.858.212(4)).  Clause 858.212(1) requires that the applicant meet either of these criteria.  There is nothing before the Tribunal to suggest that the applicant has provided specialised assistance to the Australian Government on matters of security.

7. The Tribunal has referred to Department policy PAM3, but used it as a guide only.  It notes that for a Subclass 858 visa a high acceptance threshold applies and that the intention of the programme is to provide residence to exceptionally outstanding individuals who are eminent in the top echelons of their field, would not qualify under other visa categories but will make a substantial contribution to the Australian community because of their international achievements.  The visa is for people who are internationally recognised as leaders in their particular field.

8. The policy refers to exceptional and outstanding as relating to performance internationally, but notes that if achievement is only realised locally this would not be regarded as exceptional and outstanding achievement.

9. It is stated in the policy that “…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 their peers who are also positioned as the very best in that field.  An applicant should be at the very top of their field.”

10. The Tribunal has considered the evidence, including the applicant’s qualifications and achievements and positions held, including achievements in Australia and internationally.  Regard has been had to whether the applicant has professional achievements, including industry awards and accolades, references from current and past employers, statements from prominent industry peers, academic degrees or professional designations associated with the applicant’s field of work and any relevant personal and professional titles.

11. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, cl.858.212(2), requires the applicant to demonstrate that she:

    (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 Form 1000; and

    (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.

12. In this case, the applicant was born in 1951 and was over the age of 55 at the time of application and must satisfy the requirement that she demonstrates an exceptional benefit to the Australian community.  All criteria must be met and, as the delegate was not satisfied the applicant met cl.858.212(2)(f), the visa was refused.

13. The issue in this case is whether the applicant meets the requirements in cl.858.212(2).  The Tribunal has given careful consideration to all relevant facts and matters before it, including supporting documents on both the Department and Tribunal files, together with submissions provided and oral evidence given by the applicant at her hearing. The applicant was a highly credible witness who gave spontaneous, detailed, consistent and cogent evidence.  She also provided a large number of relevant supporting documents.

14. The applicant is a citizen of Zimbabwe who first came to Australia in 2001 holding a student visa.  After she finished her studies, she went on to work in her field as a music therapist for Macquarie Hospital and Alzheimer’s Australia.

15. Ms Chiundiza has provided the Tribunal with a Form 1000 from Ruth Wingate Bright signed on 13 November 2018.  Dr Bright attested to the applicant’s record of achievement in her profession, that the applicant is a member of the Australian Music Therapy Association and that Ms Chiundiza’s work is emphatic and supportive and that it is widely recognised. 

16. The nominator is herself a pioneer in the field of music therapy who has an international reputation.  Dr Bright has been involved in music therapy since the 1960s.  The Tribunal conducted its own inquiries and confirms that Dr Bright is featured on the Australian Music Therapy Association website.  She was their first national president from 1975 to 1979 and served a second term from 1981 to 1984.  Dr Bright was a member of the working party that established the music therapy course at UTS, Sydney.  She was a co-founder of the World Federation of Music Therapy and served as the president from 1990 to 1993.  She is the author of 10 music therapy textbooks.  In 1992, Dr Bright was awarded an Order of Australia for services to community health and an Honorary Doctorate from the University of Melbourne in 2002.  In 1978, Dr Bright was made an Honorary Life Member and, in 2012, she was awarded a Lifetime Achievement Award by the Australian Music Therapy Association, which is the peak body in the field in Australia.  Dr Bright is an Australian citizen.  The Tribunal gives significant weight to the endorsement of a nominator of the calibre of Dr Bright and the organisation she is associated with.

17. The applicant applied for the distinguished talent visa on the basis of her skills in a profession, namely that of music therapist.  She provided evidence of her skills and qualifications with the visa application.  Her qualifications include a Graduate Diploma in Music Therapy from the University of Technology, Sydney, awarded in 2008 and a Bachelor of Creative Arts (Music) awarded in 2005. 

18. In 2010, the applicant started her business practising in her field of music therapy, Grace Community Wellness Networks, and has provided an Australian Securities and Investments Commission (ADIC) search indicating that the business is currently registered.  Ms Chiundiza runs clinics for her music therapy at two churches, in Stanmore and Warriewood.  She also sees some patients in their homes or in nursing homes and has recently taken on a junior staff member to cope with increased demand for her skills in her field.

19. The applicant is responsible for setting up a music therapy programme with Miriam Chimhanda in Harare, Zimbabwe.  She made trips to Zimbabwe in 2015 and 2017 to facilitate the setting up of the programme.  In July 2017, the applicant travelled to professional conference and delivered a paper in Riva, Latvia.  In October 2018, she was invited by Dr Lucy Bolger, University of Melbourne, to co-write and publish a paper in her field in 2019.

20. In 2015, the applicant was an awards judge at the Australian Music Therapy Association National Conference.  She also presented a poster at the conference for which she herself received an award.  Ms Chiundiza has made several appearances in local media, including on radio, to talk about and perform her music. The applicant has been featured in Alzheimer’s Australia’s ‘In Touch’ magazine on a number of occasions, and also in the Daily Telegraph and other local papers. 

21. Ms Chiundiza is a published author.  Her book ‘Musical Woman – My Road to Music Therapy’, published in 2015, is listed on Amazon.  She provided a review of the book by Joseph Moreno, MT, Professor Emeritus Maryville University, Saint Louis, MO, USA.  The Tribunal made its own inquiries and confirmed that Joseph Moreno is a world renowned academic in the field of music in group therapy.  He has presented music therapy workshops in 58 countries and is a published author and has published many journal articles relating to music therapy.  He considers the applicant, in her book, to have demonstrated that ‘her carefully prepared clinical assessment forms reflect her professionalism and attention to detail.’  He recommends the book highly to music therapists.  The applicant provided the Tribunal with an email Mr Moreno sent on 4 December 2018 in which he describes her as dedicated to the excellent work she does.  He speaks of her ‘pioneering’ work in Zimbabwe and says he hopes to collaborate with her to establish a university degree programme in Zimbabwe and says he would not be able to realise this ambition without Ms Chiundiza and considers she would be an ‘essential partner’.

22. The applicant has provided many references from colleagues and academics in her field, including from:

    a.Dr Grace Thompson, Australian Music Therapy Association, who refers to the applicant’s experience, qualifications, participation in professional committees, research and published work;

    b.Clare Glendenning, Macquarie Hospital, who gives details of the applicant’s work as a music therapist from 2008 to 2012 and refers to the choir that the applicant set up which increased patient happiness, motivation and self-esteem;

    c.Hon John Watkins, Chief Executive Officer of Alzheimer’s Australia, who speaks of the applicant’s ‘special capacity to protect, inspire and assist people living with dementia’;

    d.Lucille Bloch, Director on the Board of Alzheimer’s Australia, who says she considers the applicant to have ‘exceptional skill’ relating to her ability to select music for people with dementia and that she achieves positive results;

    e.Two colleagues from the Inner West Music Therapy Connect support.  They say that in 2009 the applicant initiated the formation of the music therapy group.  The group is still going and meets once a month;

    f.Inese Valdheima, Chairperson of the Board of O Fonds that has, for the second time (following the applicant’s attendance at their conference in 2017) extended an invitation to the applicant to attend their next international Music Therapy Conference to present talks as a guest speaker.  It is stated in the letter that the applicant is invited on the basis of her experience in music therapy with people who have Alzheimer’s and because of the published work that the writer has read in the World Federation of Music Therapy and Alzheimer’s magazines; and

    g.Dr Vicky Abad, RMT, National President, Australian Music Therapy Association (AMTA), who confirms that the applicant is and has been a member of the Association since 2008, the ‘peak body that represents music therapists and the people we serve and is responsible for upholding professional standards of practice.’  She confirms that the applicant has held the position as vice Chairperson of the AMTA in New South Wales and the work the applicant has done setting up and running the Inner West Music Therapy Support Group.  She attests to the applicant’s contribution to the wider community and is of the opinion that the applicant ‘enriches’ the Australian community through her music therapy and community contributions.  Dr Abad also confirms that the applicant has initiated a music therapy programme in Zimbabwe and that she is widely published.   

23. The applicant also provided statements from family members of people who are her patients attesting to the exceptional level of care Ms Chiundiza provides through music therapy, including:

    a.Helen James, whose husband suffered dementia and says that through his participation in music therapy groups with Ms Chiundiza, and who she says benefited greatly from the sessions.

    b.Gloria Medo, whose husband has Alzheimers, speaks of the benefits it brought to her husband and the exceptional work the applicant does through her music therapy.

    c.Sue Sanossian, who considers the applicant’s skills to be exceptional and whose parents benefited from the ‘transformative effect’ that the applicant’s music therapy had when Ms Sanossian’s father was diagnosed with Alzheimer’s.

    d.Louise Teteris, whose mother has dementia.  She is a violin player who can no longer play and is now non-verbal.  Ms Teteris says that Ms Chiundiza, with her music therapy, has a unique talent that enables her to connect with their mother in a way that even she cannot anymore.

24. These are a few of the many references that were provided to the Tribunal. 

25. The applicant gave oral evidence at the hearing, providing examples of the patients she sees, and the Tribunal is satisfied that the applicant provides the kind of therapy and exceptional care through her music therapy that is referred to in both the professional and other references. 

26. The applicant has provided a very detailed written statement giving her background, claims and addressing the criteria for the grant of the visa.  The applicant’s migration agent has also provided written submissions.  The Tribunal has had regard to these and other relevant facts and matters when reviewing the matter and reaching a decision regarding the applicant’s profession in music therapy in relation to her claim to meet the criteria for the grant of the Subclass 858 Distinguished Talent visa.

27. The Tribunal has considered the evidence the applicant has provided and whether she has demonstrated that she has an internationally recognised record of exceptional and outstanding achievements.  PAM3 states that achievement in a profession that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding and that it is expected the applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.  It would need to have recognition and acceptance in the wider Australian community as well as international standing. 

28. On the evidence, the Tribunal is satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievements.

29. Applicants must have current prominence in their area. ‘ Prominent’ is not defined in the Regulations.  However, referring to Departmental policy, ‘prominent’ should be accorded the ordinary dictionary meaning within context; appropriate synonyms are ‘conspicuous’ and ‘important’. 

30. The Tribunal has considered the current information that has been provided by the applicant.  She has provided a large amount of supporting evidence that satisfies the Tribunal that the applicant has current prominence in her area.  She has her own business, is registered with the NDIS and has provided many references from colleagues and patients attesting to her current and ongoing work in the field of music therapy.

31. The Tribunal has considered whether the applicant’s settlement in Australia will benefit the Australian community as a whole, including social and/or cultural benefits to the Australian community, but not just a particular social, cultural or business community.  With an aging population, the Tribunal considers it hard to see how the applicant’s work would not be viewed as prominent or important.  On the evidence, it is clear that the applicant is highly regarded by her peers and patients or clients, and that the work she does is considered by them to be important. 

32. The Tribunal has considered whether it is clearly apparent and not just conjecture that the applicant would bring economic, social or cultural benefits to the community. There is nothing before the Tribunal that suggests the applicant’s field is controversial or outside accepted norms of most people in Australia.  The Tribunal is satisfied, on the evidence, that the applicant brings benefits to the Australian community. 

33. The Tribunal has considered how the applicant plans or expects to support herself and whether she has demonstrated that she would have no difficulty doing so.  Consideration has been given to current and future employment opportunities, evidence of self-employment or having a viable business and evidence of grants, commitments and other support for the applicant working in her field.  The employment or work must be related to the area of achievement.  The Tribunal is satisfied that the employment or work that the applicant currently does and that she intends to continue to do is in the field of the area of achievement.

    Eligibility if under 18 or 55 years or older

34. In this case, the applicant is over 55 and, as such, it is required that approval of her application would result in exceptional benefit to the Australian community, exceeding that normally required of a successful distinguished talent applicant and that the benefit would elevate the international standing of the particular field in Australia.  The Tribunal has considered whether the applicant has demonstrated that the benefit would be immediate and ongoing and whether she has provided detailed plans outlining her intentions if the visa is granted.  It is stated in the policy that an applicant who intended retiring in Australia or pursuing other activities within a few years of arrival in Australia would not satisfy the criteria.

35. The Tribunal is satisfied that the applicant intends to continue working in her field.

36. On the evidence, the Tribunal is satisfied that the applicant has provided a Form 1000 from an appropriate person with a national reputation in the same field as the applicant, that the applicant has an internationally recognised record of exceptional and outstanding achievement in her profession of music therapy, that she is still prominent in the area, that she would have no difficulty finding employment and that she would be of exceptional benefit to the Australian community.  The Tribunal is therefore satisfied that the applicant meets cl.858.212(2)(a)-(f).

1. Accordingly, the Tribunal is satisfied that the applicant meets cl.858.212(1) that requires she meet either cl.858.212(2) or cl.858.212(4).

2. Given these findings, the appropriate course is to remit the application for the visa to the Department for assessment against the remaining criteria for a Subclass 858 visa.

   DECISION

3. 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:

   · Clause 858.212 of Schedule 2 to the Regulation for a Subclass 858 (Distinguished Talent) visa.

   Jennifer Cripps Watts
   Member