Crosland (Migration)

[2024] AATA 3869

Crosland (Migration) [2024] AATA 3869 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shane Poss Crosland

CASE NUMBER:  2109123

HOME AFFAIRS REFERENCE(S):          BCC2020/1669268

MEMBER:Amanda Mendes Da Costa

DATE:27 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa  for reconsideration, with the following direction:

· The applicant meets clause 858.212 of Schedule 2 to the Migration Regulations 1994 for a Subclass 858 (Distinguished Talent) visa.

Statement made on 27 August 2024 at 10.19am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – cinematographer/filmmaker – applicant has an internationally recognised record of exceptional and outstanding talent as a Cinematographer and Film maker – still prominent in these areas – Decision under review remitted

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

CASES
Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293

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 Home Affairs on 29 June 2021 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).

2. The visa applicant applied for the visa on 2 June 2020. The delegate refused to grant the visa on the basis that he did not meet the requirements of cl 858.212(2)(a) of Schedule 2 to the Regulations. Whilst the delegate acknowledged the applicant’s emerging talent in the film industry, they did not consider his body of work indicative of a cinematographer or filmmaker considered exceptional and outstanding.

3. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal also heard evidence from Mr Leo Clifford.

4. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

5. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant that it would seek submissions from him toward the end of the Tribunal hearing on any matter he considered relevant to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl. 858.212(2) of Schedule 2 of the Regulations.

8. Clause 858.212(2) states:

   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;

   (d)   would have no difficulty in obtaining employment or in becoming established independently, in Australia in the area; 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.

   (e)   produces a completed approved 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.     

9. For the purpose of this application the applicant has nominated that he is applying for a Distinguished Talent visa based on his achievements in the area of the arts and in particular, as a cinematographer/filmmaker.  The applicant was nominated by Mr Stefan Jose (an Australian citizen) in a form 1000, dated 26 May 2020 and signed by Mr Jose.

10. In his form 10000 Mr Jose describes the applicant as a leader in experimental film. In Mr Jose’s opinion the applicant has artistic imagination and a keen eye for creativity in the world of cinema which can be seen through his ward winning collaborations, published photographic work and extensive number of film professionals he has worked with internationally.

11. Mr Jose also notes that the applicant has finished writing a feature film and in developing a film and music brand with others internationally. In Mr Jose’s opinion, the applicant is well respected by other filmmaking professionals in Australia, and he is a “driving force” who will bring much creativity and opportunity for others.

12. Mr Jose further describes the applicant as being an extraordinary asset to him as his camera assistant. He notes that their mutual clients have included McTavish Surf, Nikon, O’Neill, Politix, Dope Lemon Music, Stephanie Gilmore, and Australia Macadamia. Mr Jose states that his productions with the applicant have won multiple awards in cinematography which would have been a huge task without the applicant.

13. The Tribunal has also considered a letter of support (undated) which Mr Jose provided the Department in support of the applicant’s visa application.

14. In this letter Mr Jose describes the applicant as a talented cinematographer and filmmaker with whom he has worked on several projects including a short film called Man Up which was awarded a medal from the Australian Cinematographer’s Society and was shown in several short film festivals.

    Supporting documentation

15. The documents provided by the applicant to the Tribunal in support of his review application include the following:

    ·Applicant’s statement of professional achievement.

    ·Press-kit for The Chieftain of the Pudding Race film.

    ·Press-kit for Luen Strange Purpose film.

    ·Press-kit for The M Word film.

    ·Links to websites and online articles regarding the applicant.

    ·Reference letter biographies for artists who have worked with the applicant.

16. The Tribunal has also considered reference letters from Hamish Rutherford (dated 27 May 2020), Iain Hayes (undated), and Rick Bay (undated), which were provided to the Department in support of the applicant.

17. In his personal statement the applicant states:

    ·He is an American citizen who was born in the USA and resides in Byron Bay in northern New South Wales (NSW).

    ·He arrived in Australia in 2016 and has been living here since.

    ·He holds bachelor’s degrees in film studies and visual Arts from the University of Colorado in Boulder, USA and a Diploma of Marketing and Communication from Envirotech Education Institute in Byron Bay.

    ·His first professional role in Australia was that of Gaffer (Chief Lighting Technician) in an independent feature film called MUTT, directed by Samuel Hunter Galloway, and produced by Erinn Stevenson. This film was shot in Melbourne and regional Victoria and focused on illegal dog fighting rings.

    ·Although he has worked on many different roles in the Australian film industry, his main interest is in film direction.

    ·His training has taught him to be a filmmaker which encompasses other skills including shooting, editing, directing, producing, and dressing a set.

    ·He has worked on a multitude of sets including branded content advertisements, television commercials, feature films, documentaries, short films, wellness advertisements and live events. His roles have included lighting, production, direction, and post-production.

    ·He is also an electronic music artist, founder of SONIK-INO – a film production brand and music label and founder and operator of Kino Grande, a seasonal events series celebrating film, art, and music in one space.

    ·As a music artist he has performed in countries including Germany, the USA, Vietnam, Thailand, Cambodia, Japan, and Australia. H has also had musical releases in collaboration with artists DJ Witch and Donald Pump on a compilation record release on the applicant’s record label.

    ·Kino Grande has brought “huge” musical names (including Claire Morgan, Human Movement, Luen, April Kerry, Hidden Spheres, Evan Bags and Bitter Babe) to reform in Australia.

    ·In 2020 he commenced work on The Chieftan of the Pudding Race which was originally intended as a feature film but was eventually made as a short film. He was responsible for co-writing the script and directing the film which depicted a young man passing through different social circles in his hometown.

    ·The film is 26 minutes duration and its production involved 150 actors, crew, and production staff over two production weeks. The film has received international recognition at film festivals, receiving 24 awards, 11 Finalist Nominations, two Honourable mentions and eight Official Selections.

    ·The Chieftan of the Pudding Race is currently showcased on the short film streaming channel Film Shortage and it has received a 5-star rating from channels such as Short Films Matter.

    ·He has also worked on a series of music videos for New Zealand LGBTQIA+ artist Ben Hazlewood, which went straight to streaming on a world platform and was latter made into a visual EP short film titled 11.11.

    ·This collection of music videos tells the story of the mental challenges faced by members of the LGBTQIA+ community and their battle to overcome them.

    ·He subsequently worked on a three-minute short film involving an original song by local artist Central Sonics and a music video for rising music artist Luen. The clip was based on a combination of vogue fashion, dance music, flowers, and the natural environment of the Byron Bay hinterland.

    ·He wrote the script for his second short film The M Word which was filmed in late 2022. The film has been shown at international film festivals since May 2023 and has received 10 awards, 6 Finalist Nominations and four Official Selections.

    ·He currently has plans for a new feature film which is to be called Moto Moto and he intends to pitch it for funding to professional studios in the USA and Australia. He is also in the middle of the seasonal event series of Kino Grande and intends to complete the season in April 2024 with an EP release event for Iain Hayes with other artists living in the Northern Rivers area of NSW and plans to release an EP of his own tiled You Win in collaboration with Australian artist Zach Panepinto.

    ·The applicant has branded content productions for Australian businesses in which he will be directing, shooting, and editing. He has finished writing another short film called Language which tells the humorous story of being trapped in a toxic relationship and an eight-episode series called Visas. This series is an anthology of different stories, and he intends to pitch it to Netflix, HBO, and Apple TV with the goal of directing the series.

18. Mr Rutherford who is a film director, states in his letter that he has known the applicant for over 12 months. In Mr Rutherford’s opinion, the applicant shows a distinguished taste for imagery, showing a high level of proficiency in using film equipment. He also states that when they worked together on the music video set of Hey You by the artist Dope Lemon, the applicant played a pivotal role in helping the film crews adhere to its daily schedule which reduced the risk of the production exceeding its budget.

19. Mr Rutherford further opines that the applicant has ambition and a strong work ethic. He also states in his letter that the applicant has a wide range of film making skills from pre-production, production and post-production and describes him as an asset to any film crew whether in Australia or internationally.

20. Mr Hayes who is a musician and musical producer, states in his letter that he has known the applicant since December 2017, and they have since worked together on several music projects. In Mr Haye’s opinion, the applicant’s skills as a percussionist and multi-instrumentalist have proved useful to these projects.

21. Mr Hayes further states that he has heard the applicant perform several times as a DJ at one of Australia’s most respected music venues Locura, he had become aware that the applicant has become one of the most in demand artists in the Byron Bay area.

22. Mr Bay is the Director of Wafer-Thin Films. In his letter he describes the applicant as a man of skill and ambition whose efforts as a filmmaker are executed with a precise vision and a sound technical understanding.

23. Mr Bay states that the applicant was employed as cinematographer for the short film Autumn which was directed by Mr bay and won the Grillo Award for filmmaking. In Mr Bay’s opinion, the applicant’s skills as a cinematographer are excellent and he demonstrates ingenuity and flexibility on set.

24. Mr Bay further describes the applicant as being held in high esteem by his peers from the filmmaking course at the university of Colorado and he recommends the applicant for work as a director, cinematographer, assistant camera operator or editor and for any position in audio design. In Mr Bay’s opinion, the applicant is a man of intense creative energy and potential.

    Evidence of the applicant at the hearing

25. The applicant’s oral evidence was consistent with the information contained in the documentation provided. He further explained to the Tribunal that his approach to film making was influenced by his studies at the film school at the University of Colorado. This school had professors who were actively involved in experimental film and his course included making short films on celluloid as well as digital filmmaking. He also benefited from the commitment by the academic staff in exposing students to international cinema.

26. The applicant further explained that the awards received by his two films include his award for the Best Scriptwriter at the St Kilda Short Film Festival from which selection for the Academy Awards was possible and an award from the Hollywood Film Festival, which is a  prestigious international film festival.

    Evidence of Leo Clifford at the hearing

27. The applicant’s evidence was supported by Leo Clifford who operates a business (based in Byron Bay) which rents film equipment to filmmakers.

28. Mr Clifford described the applicant as a very talented cinematographer and filmmaker who approaches his filmmaking holistically. He explained that the applicant has a detailed understanding of each of the component of filmmaking including pre-production, cinematography, direction, editing and post-filming production. Mr Clifford further explained that the applicant’s holistic approach to filmmaking was largely a result of his training at the film school at the University of Colorado which gives its students practical and theoretical instruction in all the aspects of filmmaking.

29. Mr Clifford told the Tribunal that whilst the applicant is a highly skilled filmmaker, he is also imaginative and approaches his work in an original manner. In My Clifford’s opinion the applicant’s talent and achievements are significant and internationally recognised. He considers that the applicant’s achievements will continue in a similar manner.

    Findings

30. Clause 858.212(2)(a) requires that applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts and in particular cinematography and filmmaking.

31. The Tribunal notes that the concept of “internationally recognised record of exceptional and outstanding record of exceptional and outstanding achievement” on cl 858.212(2)(a) is not defined in the Regulations.

32. According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined as meaning: “1. forming an exception or unusual instance; unusual; extraordinary; 2. Extraordinarily skilled, talented, or clever”.  It also defines the word ‘outstanding’ to mean “1. Prominent; conspicuous; striking; 2. That continues in existence; that remains unsettled, unpaid etc.; 3. Standing out, projecting; detached; 4. That resists or opposes.”

33. The Tribunal notes that the Courts have held in determining whether the applicant has an ‘exceptional record of 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 Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J (as he then was) observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’. The Tribunal also observes, however, that in Gaffar’s case the Court was dealing with the wording of the then cl 805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession, or activity. The wording of cl 858.212(2)(a) requires the applicant in this case to have an ‘internationally recognised record of exceptional and outstanding achievement’. Therefore, Gaffar’s case has limited application in the current context. The Tribunal acknowledges however, that while the applicant need not be a ‘national living treasure,’ 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.

34. The Tribunal has also had regard to the consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425 as apposite. The Tribunal notes the comments of Kiefel J (as she then was), at [49]-[50]:

    Exceptional circumstances in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person, and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted unless the limitation appears from the relevant statutory provision.

35. Regarding this application the Tribunal considers that the statutory context does operate limit or qualify the otherwise ‘wide operation’ of the word insofar as cl 858.212(2)(a) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

36. The Tribunal notes that there is presently no specific court authority on the meaning or interpretation of the phase ‘internationally recognised record of exceptional and outstanding achievement.’

37. Whether the applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in each individual case.

38. The Tribunal has considered that although the applicant’s career as a cinematographer and filmmaker is not a long one, His achievements as a film director which include two films (The Chieftain of the Pudding Race and The M Word) which have been selected for showing at international film festivals[1] and have both received several awards including best director award for the applicant.

    [1] These film festivals in India, Berlin, Los Angelos, Ireland, and London.

1. The Tribunal is satisfied that the evidence before it establishes that the applicant has an internationally recognised record of exceptional and outstanding talent as a Cinematographer and Film maker.

2. Accordingly, the Tribunal is satisfied that cl 858.218(2)(a) is met.

3. Clause 858.212(2)(b) requires that the applicant is still prominent in the area.

4. The Tribunal is satisfied that the applicant’s achievements as a cinematographer and filmmaker indicate that he is still prominent in these areas.

5. Clause 858.212(2)(c) requires that the applicant would be an asset to the Australian community.

6. The Tribunal considers that the applicant’s contribution to cinematography and film making in Australia and the employment that his films generate, mean that he would be an asset to the Australian community.

7. Clause 858.218(2)(d) requires that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia in the area.

8. The Tribunal considers that the applicant’s academic qualifications in Film Studies and Visual Arts from a notable film school[2] in the United States, his diploma in Marketing and  his achievements in these art forms in his ow films and those made by others indicate that he would have no difficulty in obtaining employment or in becoming established independently in Australia in the areas and cl 858.218(2)(d) is met.

   [2] University of Colorado, Boulder, USA.

9. Clause 858.218(2)(e) requires that the applicant produces a completed a completed form 1000.

10. In the Form 1000 Mr Jose states that he has been working as a cinematographer, director, and filmmaker at an international level, with several awards working on professional productions, some of which he has produced. His work extends across commercial, documentary, narrative, fashion, lifestyle, music, travel and sports productions for nationally known brand clients and he has achieved work rights in the USA.

11. The Tribunal notes that Mr Jose has worked with internationally renowned artists and sports women and men including Chris Hemsworth, Stephanie Gilmore and Angus and Julia Stone.

12. Based on the above information, the Tribunal is satisfied that the applicant has produced a Form 1000 completed by a nominator who has a national reputation in the field of Cinematography and Film making.

13. Accordingly, the Tribunal is satisfied that the applicant satisfies the requirements in cl 858.212(2)(e).

    Conclusion

14. Given the above findings, the Tribunal finds that the applicant satisfies the requirements in cl 858.212(2) and therefore meets cl 858.212.

    DECISION

15. The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the following direction:

    ·The applicant meets cl 858.212 of Schedule 2 to the Migration Regulations 1994 for a Subclass 858 (Distinguished Talent) visa.

    Amanda Mendes Da Costa
    Member