Duarte Brandao (Migration)

[2020] AATA 3062

Duarte Brandao (Migration) [2020] AATA 3062 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Cezar Duarte Brandao
Mrs Tatiana Ribeiro De Almeida

CASE NUMBER:  2001321

DIBP REFERENCE(S):  BCC2018/4434233

MEMBER:John Cipolla

DATE:20 July 2020    

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:

cl.858.211(2)(a) of Schedule 2 to the Regulations;

cl.858.212 of Schedule 2 to the Regulations.

Statement made on 20 July 2020 at 10.32am

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – applicant did not hold substantive visa when application made – application posted day before last substantive visa expired, received two days after – factor beyond applicant’s control – delay in nominator providing relevant form – compelling reasons for granting visa – work history and testimonials – ‘internationally recognised record of exceptional and outstanding achievement’ – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 858.211(2)(a), 858.212(2), Schedule 3, criterion 3004(d), (f)(i)

CASES

Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293

Hatcher v Cohn (2004) 139 FCR 425

Quan v MIMAC [2013] FCCA 1254

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 16 January 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 (the Act).

2. The applicant applied for the visa on 8 October 2018. The delegate refused to grant the visa on the basis that he did not meet the requirements of cl.858.211(2)(a) as he failed to satisfy Schedule 3 criterion 3004.

3. The applicant appeared before the Tribunal on 9 June 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant can satisfy the requirements of Schedule 3 criterion 3004 in order to meet cl.858.211.

7. When an applicant applies for a Distinguished Talent visa and they are not the holder of a substantive visa, as is the case with the applicant, they must meet cl.858.211(2)(a). This subclause provides an applicant is required to meet Schedule 3 criteria 3001, 3003 and 3004.

8. The delegate found that the applicant met 3001 and that 3003 was not applicable, however found that the applicant did not meet 3004. The Tribunal accepts the delegate’s findings as per 3001 and 3003; as such the Tribunal’s decision will focus on the applicant’s ability to meet 3004.

9. Relevantly, to meet 3004 it must be found that the applicant was not the holder of a substantive visa because of factors beyond their control, and that there are compelling reasons for granting the visa. The decision maker must also be satisfied that the applicant has abided by visa conditions on previous visas held, and the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa.

10. The applicant has been residing, studying and working in Australia for an extended period of time.

11. The applicant advised the Tribunal at review that he came to Australia for the first time in 2013.  He initially arrived on a three-month tourist visa, and just prior to the expiration of that visa, he left Australia to New Zealand and applied for a student visa. That visa was granted and valid for 1 year.  The applicant advised that he studied in Australia undertaking a Certificate III in Business, a course which ran for 5 months and then he commenced a Certificate IV in Business which he did not complete as he had to return to Brazil for family reasons.

12. The applicant advised that he returned to Australia in 2016, again as the holder of a Student visa, to study a Graphic Design Diploma.  The applicant advised the Tribunal that he successfully completed the course in 1 year.  The applicant then made an application for a Distinguished Talent visa that is the subject of this review in October 2018.

13. The applicant in his Subclass 858 Distinguished Talent visa application form, stated that he was seeking the visa on the basis of his achievements in the field of the arts, as a Graphic Artist.

14. The evidence that was submitted with the application for a Subclass 858 visa and to the Tribunal at review indicates that the applicant is a graphic artist and describes himself in his visa application as a pioneer in incorporating 2 dimensional shapes into 3 dimensional artworks, something the applicant describes as his signature style. The applicant noted in his application that he had conducted multiple exhibitions worldwide in Melbourne, Sydney and Auckland and that his work had been exhibited in the United States and Brazil. The applicant advised that his artwork was sold at the People Print Gallery in California in the United States of America and had been published at international movie festivals. 

15. The applicant also provided an anthology of his work history in the graphic arts which indicate that he has been involved in the development of characters for a number of international gaming companies, such as for the game Halo 4, he has worked as a Digital Tutor in the United States preparing tuition DVD’s on ‘Sculpting Models for Illustration’ and Sculpting Anatomy for Females.”  His work has also been used in advertising in New York and Portugal and Russia.

16. A search of the applicant on the internet indicates a wide profile as a graphic artist on a range of websites.  On the applicant has 5628 followers from a diverse range of countries including the United States of America, Portugal, the United Kingdom, Brazil and Canada.  On Instagram the applicant has in excess of 10,000 followers around the world. Access to the applicant’s Linkedin page confirms the applicants work profile with his current employment at the Academy of Interactive Entertainment and his work history in Brazil and the United States. The applicant’s art is featured in a number of online galleries, blogs and the applicant is the subject of a number of online interviews and film clips.

17. Distinguished Talent visa applications require an Australian nominator. The nominator can be an individual or can be an organisation, such as a company, sporting club, university or other type of association.

18. The nomination form was completed and submitted by Mr Aaron Craig the owner of Superhero (QLD) Pty Ltd trading as Stupid Crap. Mr Craig is also a graphic artist.  Mr Craig describes his business as being, since 2006, “a pillar in the local community supporting artists through limited edition collaborations, ongoing releases, innovative exhibitions and site-specific installations.”

19. Mr Craig in a letter of endorsement annexed to the nomination Form 1000, dared 5 October 2018, states that the applicant would be able to obtain employment in Australia with ease due to his outstanding and ongoing pioneering work in the graphic art space.

    Evidence at Hearing and Post Hearing Evidence

20. As noted above, the applicant advised the Tribunal that he came to Australia for the first time in 2013 and provided the Tribunal with a recitation of his immigration history to Australia.

21. The Tribunal discussed the schedule 3 issue with the applicant, namely criterion 3004.  The applicant noted that he was invited by the Department to demonstrate how he satisfied schedule 3 criteria in a letter forwarded to him on 17 December 2019. The applicant advised that he responded to the Department in writing on 14 January 2020. The applicant advised that his agent posted his visa application for a Distinguished Talent visa on Friday 5 October 2018 and that he was led to believe that this would satisfy lodgement requirements. The application was received by the Department on Monday, 8 October 2018. The applicants Subclass 572 Student visa ceased on Saturday, 6 October 2018. The applicant argued that since he had posted his application before the cessation of his Subclass 572 visa, that he had attempted to regularise his visa status, by lodging a valid application in a timely manner.

22. He advised that there were factors beyond his control that led to the application being received two days after the expiration of his last held substantive visa.

23. The applicant advised the Tribunal that he had engaged a lawyer Mr James Shin, of Think Visa agency located in Melbourne, but Mr Shin, in responding to the request of the Department dated 17 December 2019, failed to provide any evidence as to why the application for the visa was late.

24. The applicant advised that he forwarded a document to the Department on 24 January 2020 addressing the reasons that resulted in his visa being sent one day before its expiration, being beyond his control. The applicant stated that he started his 858 application with Think Visa agency and was advised that his application required a nominator to complete the form 1000. The applicant stated that Mr Aaron Craig had agreed to be his nominator in August 2018. However, in September 2018 Mr Shin advised the applicant that Mr Craig no longer wanted to be the applicant’s nominator because he was busy running businesses and his wife was about to have a baby. A lawyer with Think Agency, Mr Danny He, informed the applicant that he would try to convince Mr Craig to continue being the nominator. In late September 2018 advice was received from Mr Craig, advising he would resume being the nominator for the applicant. Just prior to the lodgement of the application the relevant paperwork had not been received, and on 3 October 2019 Mr He contacted Mr Craig pursuing the form 1000.  Mr He learnt that the relevant documents had been sent and advised the applicant that the documents from Mr Craig would be forwarded to the Department along with the application for the visa on 5 October 2019. The applicant advised that despite his best and reasonable efforts, his application ended up being sent the day before it was due, because of these circumstances.

25. The applicant advised at hearing that the advice that he was provided through his migration lawyers was, that the posting of his application on Friday, 5 October 2019, would be acceptable and this was clearly wrong. The applicant stated that he did have some concern about the dates, due to the fact that his student visa was expiring on Saturday, 6 October 2019. The applicant advised that his lawyer charged him $2000 to prepare a letter about the late application to the Department.

26. The Tribunal asked the applicant about his nominator Mr Craig. He advised that Mr Craig was an artist and gallery owner based in Queensland, and that he had a national reputation particularly as a consequence of his promotion of graphic artists from around Australia.

27. The Tribunal asked the applicant about his current employment and his ability to sustain employment in his area of expertise. The applicant advised that he was currently employed at the Academy of Interactive Entertainment in Canberra as an art teacher. The applicant stated that it was a private college and that he was involved in teaching a number of graphic art courses and that in July 2020 he would have been working for this Academy for one year. The applicant also advised that his artworks are exhibited and sold through a number of galleries from around the world.

28. Post hearing the Tribunal received a number of documents and submissions from the applicant which have been duly considered.

29. The Tribunal received a document from Lea Michael, Head of School Canberra, the Academy of interactive entertainment dated 16 June 2020. Ms Michael states that:

    I would like to contribute my support of Cezar gaining a special talent Visa to remain in Australia. I am the head of School for the Canberra and online campuses for the Academy of interactive entertainment (AIE) and have been with the registered training Organisation for 16 years. During this time I have employed many trainers for the company and seen a broad range of talents, however retaining the talented trainers has been a significant challenge over the years due to the staff being drawn overseas or interstate to large Games and Film Companies.

    Cezar is internationally acclaimed talent in 3D Digital arts, teaching expertise and significant industry experience in digital games that our Registered Training Organisation has struggled to find within Australian talent. We have employed, and would like to continue to employ, Cezar to engage his passionate and caring nature with delivering top-quality training to the next generation of Australia’s 3D digital creative industries talent pool and support the growth of Canberra’s up-and-coming independent game and film developers, growing and strengthening the industry, not just within ACT but Australia wide.

    During his time with AI, Cezar has shown a dedication to not only supporting the students, but also connecting with his peers to share his skills, bringing a unique and heightened level of digital sculpture, anatomical knowledge and lifelike art to the curriculum. With continued engagement of Cezar’s talent, our graduates will have increased opportunities for employment in skill areas that are normally challenging to achieve.”

30. The Tribunal also received a number of testimonials from colleagues at the Academy of Interactive Entertainment including an endorsement of the applicant from Finn Spencer dated 11 June 2020, who notes that the applicant has an international profile as a 3 dimensional graphic artist who has contributed to high profile work in video games such as Halo and Skyforge, noting that the applicant is an asset to Australia’s creative industry sector. Further to this an endorsement from Richard Lagarto, also a colleague at the Academy of Interactive Entertainment dated 10 June 2020 noting that the applicants art work has been featured in animated films, video games, advertisements and that he has been the recipient of awards for his art in both Brazil and the United States.

31. The applicant also provided evidence from the manager of Gallery Leewiart dated 20 March 2017 seeking access to the applicant’s work to promote in the growing Chinese art market.

32. The applicant provided a list of YouTube interviews pertaining to his graphic artworks. This included a television interview conducted in Brazil, a talk at the Academy of Interactive Entertainment Melbourne campus and the applicant doing a master class of his work.

33. The applicant also provided a comprehensive resume which included details of his software skills, his education history in Brazil, and Los Angeles and Australia, and the comprehensive outline of his work history, featuring instances where his artwork has been displayed. This has included displays in New York, Canada, Russia, Brazil, and China.

    Would the applicant have been entitled to be granted a Subclass 858 visa if he had applied for the visa on 6 October 2019?

34. The Tribunal considered whether the applicant meets the criteria contained within cl.3004(f)(i). This requires the applicant to demonstrate that he would have been entitled to the grant of the Subclass 858 visa if he had applied for the visa on the day on which he last held a substantive visa on 1 May 2018.

35. The application of cl.3004(f)(i) was the subject of judicial consideration in Quan v MIMAC [2013] FCCA 1254 (Quan). Although that case is in reference to a Subclass 457 visa application, the reasoning is applicable to the present matter. In Quan, the Tribunal had found that the visa applicant would not have been entitled to the grant of a Subclass 457 visa when she last held a substantive visa, as he did not have the sponsorship required for the grant of a Subclass 457 visa.

36. The Tribunal was correct in finding that the visa applicant did not meet cl.3004(f)(i) as she would not have been entitled to the grant of a Subclass 457 visa on the day on which she last held a substantive visa, as she did not have the sponsorship required for the grant of a Subclass 457 visa. As such, it was not necessary for the Tribunal to consider whether there were compelling reasons for granting the visa pursuant to cl.3004(d).

37. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations).

38. In this context, the Tribunal has had regard to the relevant dictionary meanings.

39. The Tribunal has had regard to the Macquarie Dictionary Online, where the word ‘exceptional’ is defined to mean: “1. forming an exception or unusual instance; unusual; extraordinary. 2. extraordinarily good, as of a performance or product. 3. 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.”

40. The Tribunal has also had regard to case law applicable to cl.858.212(2)(a).  The Tribunal notes that the Courts have held that 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 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 before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.”  Therefore Gaffar’s case, has limited application in the current context.  The Tribunal notes that whilst 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.

41. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425. The Tribunal notes the comments of Kieffel J 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.

42. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) 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.

43. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”.  The Tribunal further notes that the Departmental guidelines (Procedures Advice Manual 3, or PAM 3) state, inter alia, the following:

    applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

    …

    Claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.

    A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

    An achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

    …

    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.

1. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.  Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the Regulations, the Tribunal is required to depart from it.  The Tribunal has taken into account the individual circumstances of the applicant.

2. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

3. The applicant is a national of Brazil and is a graphic artist.

4. The Tribunal has had regard to the evidence before it in order to determine whether the applicant at time of application had an internationally recognised record of exceptional and outstanding achievement as a graphic artist, as required by cl.858.212(a).

5. The Tribunal is mindful of its obligation to consider all of the applicant’s various achievements and accolades as a graphic artist an in assessing his record of achievement at the time of application. The Tribunal finds that there is sufficient evidence before it to find that at the time of visa application on 8 October 2018 the applicant had an internationally recognised record of exceptional and outstanding achievement as a graphic artist.   The applicant had a substantial international profile and his work had been featured in a number of countries around the world. The applicant also had widespread recognition of his peers, particularly in the area of 3D digital creative industries. The applicant therefore does meet the requirements of cl.858.212(2)(a).

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

7. The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used.  The Macquarie Dictionary defines the word as meaning ‘important’; ‘leading’; ‘well-known’.

8. The evidence before the Tribunal indicates that the applicant is still prominent in the area of graphic art.  The evidence provided by Ms Lea Michael, the Head Of School at the Academy of Interactive Entertainment on 16 June 2020 indicates that the applicant is an internationally acclaimed talent in the area of 3D Digital arts and that he has substantial teaching expertise and significant industry experience in digital games. This evidence is a clear endorsement of the applicants ongoing international prominence as a graphic artist, particularly in the area of 3D digital arts.   The applicant also continues to sell and exhibit his art through a number of galleries in Australia and around the world.

9. Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.858.212(b).

10. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. Since his arrival in Australia the applicant has been involved in working in the field of graphic arts and the evidence before the Tribunal indicates that the applicant continues to exhibit his work both in Australia and internationally and engage in teaching at the Academy of Interactive Entertainment in Canberra.  The Tribunal is satisfied that cl.858.212(2)(c) was met at the time of application.

11. The Tribunal is satisfied that the evidence shows that at the time of application, the applicant was employed as a teacher and tutor at the Academy of Interactive Art in Canberra.  Accordingly, the Tribunal is satisfied that cl.858.212(2)(d) is met.

12. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed Form 1000 was signed by Mr Aaron Craig on 5 October 2018. The evidence before the Tribunal indicates that Mr Craig is an artist and gallery owner and the evidence before the Tribunal indicates Mr Craig has a national reputation as an artist and promotor of graphic art in Australia. Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.

13. The Tribunal is satisfied that given the applicant’s age (29 years) at the time of application that the provisions of cl.858.212(2)(f) do not apply to him.

14. As the applicant meets all of the 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.

15. With regard to the remaining 3004 considerations the Tribunal finds as follows.

16. The Tribunal finds that the applicant’s last held substantive visa, a student visa, expired as noted on Saturday 6 October 2018. The applicant, through the agent he had engaged, sent the visa application to the Department on Friday 5 October 2018, with assurance from the agent that the postage of the application on this date would conform with the lodgement requirements for a Subclass 858 visa.  The evidence further indicates there were problems with the completion of the Form 1000 by Mr Craig, with that document not being completed until 19 September 2018.  The evidence before the Tribunal indicates that the applicant undertook his best endeavours to collate the evidence in support of the application and relied on the advice of a registered migration agent which led to the application being lodged 2 days after the expiration of his substantive visa and the Tribunal finds that the combination of these circumstances were attributable to factors beyond the applicants control. 

17. The evidence before the Tribunal indicates that the applicant is gainfully employed in Australia and that his employer considers the applicant as being an asset to the business because of his skill set and experience, and further to this that the applicant’s skill set something has not been available from within the Australian labour market.  The Tribunal finds this provides a compelling reason for granting the visa. The evidence before the Tribunal indicates that the applicant has complied with the conditions that applied to the last substantive visa that he held.

18. Further to this the Tribunal finds for the reasons noted above that the applicant would have been entitled to be granted the visa of the class applied for had the applicant applied on the day when the applicant last held a substantive visa.

19. Given the above findings, the appropriate course is to remit the applications for visas to the Department to consider the remaining criteria for a Subclass 858 visa.

    DECISION

20. The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:

    cl.858.211(2)(a) of Schedule 2 to the Regulations;

    cl.858.212 of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member