De Magalhaes Pace (Migration)

[2018] AATA 4068

De Magalhaes Pace (Migration) [2018] AATA 4068 (29 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriel De Magalhaes Pace

CASE NUMBER:  1607064

DIBP REFERENCE(S):  BCC2016/742223

MEMBER:Catherine Carney-Orsborn

DATE:29 August 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:

cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 29 August 2018 at 12:36pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of achievement – field of arts – nomination and endorsement from author – involvement with artistic projects – active in community – involves and transfers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 2 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 22 February 2016. The delegate refused to grant the visa on the basis that they did not meet subclauses 858.212(2).

3. The applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments.

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 May 2016 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

5. The applicant applied for the visa on 22 February 2016. The delegate refused to grant the visa on the basis that cl.858.212(2)(a) was not met as the delegate was not satisfied that the applicant, had demonstrated he has an internationally recognised record of exceptional and outstanding achievement in the arts.

6. The applicant applied for review of the decision on 18 May 2016. A copy of the delegate’s decision record was provided to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 or have provided specialised assistance to the Australian Government in matters of security. There is nothing before the Tribunal to suggest that the applicants have provided specialised assistance to the Australian Government on matters of security.

9. 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 he:

   (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

   (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.

10. The issue in the present case turned on whether the applicant meets the requirements in cl.858.212(2). In determining this issue, the Tribunal has had regard to all of the relevant evidence before it, including the supporting documents and submissions on the Department and the Tribunal’s files, as well as the oral and written evidence provided at the hearing, which the Tribunal sets out as follows. 

11. The applicant applied for the distinguished talent visa on the basis of his achievements in the field of arts. The applicant provided evidence of his achievements in the field of arts with the visa application. The evidence indicates that he has in a relatively short period of time had substantial achievements including being the writer, producer and director of a comedy which played for six months in a Sydney theatre.  He has won an award for a foreign film in an international film Festival.  He has been a featuring artist at the Bondi Sculpture by the Sea, had an Exhibition in Europe and produced short films which have after a selection process been shown in arts festivals in Australia and overseas.  In January 2018 he was the exhibiting artist in a Gallery in Sao Paulo Brazil.

12. He is currently working in collaboration with the company which has been involved with Vivid Sydney since 2008. The collaboration is in relation to an application for an artistic project for Vivid 2019.

13. After the hearing the applicant provided independent evidence from the company which confirmed the above.  He further provided evidence of working regularly with an art and design company including invoices and payments into his bank account.

14. A Form 1000 was attached to the visa application.  The nominator attested to the applicant’s record of achievement in the arts. The nominator is a well-known author and runs successful arts publication.  This has been confirmed by independent sources.  The Tribunal is satisfied that the Form has been properly completed.

15. The applicant provided copies of his art work and several references from persons who have worked with him and recommend him.

16. The applicant first came to Australia on a student exchange programme when he was 15.  He returned to Australia in 2006 on a student visa.  In 2012 he was sponsored on a 457visa by an Australian company and worked in Advertising.  He then decided he wanted to pursue full-time his artistic endeavours. 

17. The Tribunal is satisfied that in a relatively short period of time and in a very competitive industry he has achieved an internationally recognised record of exceptional and outstanding achievement in the area of the arts.

18. The applicant has provided a significant amount of evidence which has been corroborated by written references and independent searches undertaken by the Tribunal.  

19. During the hearing the applicant also verbally summarised his career leading up to the time of application, which mirrored the statements previously made to the Tribunal and was consistent with supporting information provided to the Tribunal and on file. A search of the internet for the applicant also brings back many results, from multiple credible sources, of the applicant’s achievements in the arts.  As such, the Tribunal is satisfied that cl.858.212(2)(a)(iii) is met.

20. Clause 858.212(2)(b) requires the applicant ‘is still prominent in the area’. Prominent is not defined in the regulations. However, policy provides:

    ‘prominent’ should be accorded ordinary dictionary meaning within context; appropriate synonyms are conspicuous and important.

    It is essential for the integrity of the distinguished talent program that successful applicants not be assessed on past performance only but requires current prominence in their area.

    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.’

21. In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ‘stands out’ in his field and is ‘important’ and ‘well known’ by others within the arts. The Tribunal also places significant weight on the nomination and endorsement of an Australian citizen who is an author and publisher.  The Tribunal further gives weight to the organisation involved in Vivid Sydney who is currently working with the applicant on artistic projects for Vivid 2019.

22. On the evidence presented the Tribunal is satisfied cl.858.212(2)(b) is met.

23. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. The applicant has been present in Australia for 12 years. Since that time the applicant has been active within the artistic community. The Tribunal heard that he has had significant achievements in a short period of time.  He has also produced artistic projects and short films on the significant issues of gambling, domestic violence and gender inequality. 

24. Given the applicant’s active positive contribution over the last several years in Australia, and his commitment to continue if his visa were to be granted, the Tribunal is satisfied that the applicant is, and will continue to be, an asset to the community, therefore cl.858.212(2)(c) is met.

25. 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 provided references from artistic companies and businesses that have employed him on a contract basis.  The applicant provided evidence after the hearing including invoices and transfers to his bank account.   On the evidence before it and corroborating documents provided the Tribunal is satisfied that the applicant has had no difficulty in obtaining employment and is satisfied that this will continue into the future with the large scale projects he is currently working on. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

26. A completed approved form 1000 signed by an Australian citizen, accompanied the application. The nominator attested in this form to the applicant's record of achievement in the arts. As such cl.858.212(2)(e) is met.

27. As the applicant was born in 1984 cl.858.212(2)(f) is not applicable.

28. 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.

29. Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for subclass 858 visas.

    DECISION

30. 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.

    Catherine Carney-Orsborn
    Member