Ferger (Migration)

[2018] AATA 131

Ferger (Migration) [2018] AATA 131 (29 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nancy Sandrine Amandine Ferger
Miss Thelma Ferger

CASE NUMBER:  1724008

DIBP REFERENCE(S):  BCC2016/1378441

MEMBER:Bridget Cullen

DATE:29 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the Applicants Distinguished Talent (Residence) (Class BX) Subclass 858 Visas.

Statement made on 29 January 2018 at 2:11pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Nominated field – Visual Arts – International nature of the Applicant’s work – International acclaim by others – Grants in relation to the work

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

CASES
Re Drake (No. 2) (1978-1980) 2 ALD 634

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 21 September 2017 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 5 April 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations 1994 ('the Regulations'). In particular, the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement as an artist.

3. The applicant applied to the Tribunal on 4 October 2017 for a review of the delegate's decision and a copy of the primary decision record was included with the application for review. The Tribunal has before it the departmental file relating to the applicant. It has also had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

4. The applicant appeared before the Tribunal on 23 January 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and clause 858.212. This clause relevantly provides:

   858.212

   (1) The applicant meets the requirements of subclause (2) or (4).

   (2) The applicant:

   (a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:

   a profession;

   a sport;

   the arts;

   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

   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.

   (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.

   [(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note](4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:

   (a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

   (b) the Director-General of Security;

   the applicant has provided specialised assistance to the Australian Government in matters of security.

7. The applicant has not asserted that she has provided specialised assistance to the Australian government in matters of security at the time of application on 5 April 2016. Accordingly, the Tribunal finds that there is no evidence before it that the Minister responsible for an intelligence or security agency, or the Director-General of Security, has provided an opinion that the applicant had provided specialised assistance to the Australian government in matters of security at the time of application. As a result, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.

8. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in her nominated field of the visual arts.

9. The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 858.212(2)(a) is not defined in the Regulations.

10. According to the Macquarie Dictionary Online 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; 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.”

11. The Tribunal also notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration. In particular, the Courts have held that 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. As a result, a 'record' is an aggregation or a list, not necessarily a large aggregation or a long list.

12. In addition, the Courts have held that in determining whether the applicant has a 'record of exceptional and outstanding 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 and Indigenous Affairs, French J observed that the concept of an 'exceptional record of achievement' did not require an applicant to be a 'national living treasure'.

13. As a result, the Tribunal acknowledges that 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.

14. In addition, the Tribunal observes that the departmental guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement:

    What does 'exceptional' mean

    For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

    'Internationally recognised' in this context means that a person's achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.

    'Exceptional' and 'outstanding' should be accorded ordinary dictionary meaning within context.

    Policy requirements

    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 'international recognised' unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

    Given the ordinary dictionary meanings, 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.

    Assessing this criterion

    In assessing the applicant's record of achievement, officers may take into account information such as, such as, indicated in the following eight examples:

    ·Information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement

    ·Supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia.

    ·Supporting statements from internationally recognised individuals or organisations in the field who can pass comment on the applicant's achievements and the applicant's reputation within the field.

    ·Awards or higher qualifications received from internationally recognised institutions or organisations.

    …

    ·Details and supporting material on achievements in the arts including: books published and

    o   national and internationals sales achieved and

    o   awards and commissions received and

    o   galleries in which works are displayed and

    o   scale and audience of displays held and

    o   recognition by peers and

    o   honours and accolades (for example, an Academy Award, or a Nobel Prize in Literature) and

    o   academic qualifications associated with the applicant's area of the arts and

    o   statements from international artistic bodies and

    o   newspaper and magazine articles attesting to achievements.

    …

    ·Details and supporting material on professional achievements including: industry awards and accolades and

    o   references from current and past employers and

    o   statements from prominent industry peers and

    o   academic degrees or professional designations associated with the applicant's field of work and

    o   personal/professional titles (such as CEO, Lord, Knight, Right Honourable) indicating an earned rank or position within a formal power structure.

    The internet is an important source of additional material and a method of confirming the accuracy of any claims made. Any adverse or conflicting information obtained from this source should be put to the applicant for comment.

15. The wording of paragraph 858.212(2)(a) requires the applicant currently before the Tribunal to have an ‘internationally recognised’ record of exceptional and outstanding achievement. The Tribunal notes that there is presently no Court authority in relation to what is required to meet this aspect of the criterion.

16. Therefore, giving the words 'international' and 'recognise' their ordinary meaning, it would be reasonable to say that a record is 'internationally recognised' if it has received some form of recognition in more than one country. The policy guidelines in PAM3 appear to reflect this when they state:

    International recognition required

    Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.

    It is expected that an applicant's achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well as international standing. In determining the international standing of the applicant, officers should consider:

    ·the international standing of the country, where the applicant's achievements were realised, in respect of the particular field

    ·the standing of the achievement in relation to Australian standards and

    ·the standing of the achievement in relation to international standards.

    For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:

    ·field is undertaken and recognised in a number of countries including Australia and

    ·achievement would be similarly recognised in relation to international and Australian standards for that field.

17. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations.

    [1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634.

18. Whether or not an applicant's record of achievement is exceptional and outstanding, as well as internationally recognised, will be a question of fact to be determined in the individual case and, where appropriate, to the extent that policy is inconsistent with the Regulations, the Tribunal may depart from the departmental policy guidelines.

19. The Tribunal is aware that in assessing whether the applicant meets the requirements of paragraph 858.212(2)(a), the concept of onus of proof is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision maker is also not required to make the applicant's case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.

    THE APPLICANT’S BACKGROUND AS AN ARTIST

20. The primary applicant is French, and commenced her work as an artist while still living in France.  She explained that she had a longstanding interest in the arts, which she furthered with study at University.  Although the documents translated from French reflect that the applicant has a Bachelor of Humanities from the University of Bordeaux, I accept the applicant’s evidence that she has, in fact, a Bachelor of Visual Arts, and that the translation is erroneous in this respect.

21. While at University, the applicant studied painting, sculpture, and other art-related subjects, graduating in 2007.  While in France, she describes her exhibitions as having been “mainly local”.  Many of these exhibits were displayed in the “La Maison des Arts,” which the applicant described as a place like a “museum” or “arts control centre” where “people came to find new talent.”

22. Around the time of her University study, the applicant became involved with an arts group called Malfet Arts, which she says was a group of younger artists working in her hometown region of Mont de Marsan, looking to create art awareness.

23. The Tribunal asked the applicant if she had been awarded any prizes, and she said she had won one prize for her work called “Silence”.  She produced this work at University, although not as part of a subject. The prize was awarded by the University in 2005.  Thereafter, the work was displayed by La Maison des Arts. 

24. Following her time in France, the applicant moved to Berlin.  She participated in an exhibition at a gallery called “Loophole” in Berlin in 2009.  After three years in Germany, the applicant moved to Australia. 

25. Arriving in Australia in 2013 as a family member of a student visa holder, the applicant continued to develop her interest in the arts.  She explains that it has been difficult to gain international attention while in Australia, as she has been unable to apply for grants that would facilitate her ability to fund the costs associated with production of her works and exhibition of the works.  This is because most grants require applicants to be permanent residents, and the applicant is not.  Still, while in Australia and prior to applying for the visa the subject of this review, the applicant has worked as the “Artistic Coordinator and Visual Artist” for the Bonjour French Festival in 2014, 2015 and 2016; exhibited works with “RAW Gold Coast” and at Ignite, Coomera.  The applicant describes “RAW Gold Coast” as being an outlet that “helps emergent artists”.

26. The Tribunal asked the applicant whether the international nature of her work (having exhibited in France, Germany and Australia) was as a consequence of her own movements, rather than as a consequence of her being internationally recognised.  The applicant replied that there was no requirement that one must be invited by the country to be “internationally recognised”.

27. The Tribunal finds that the applicant is an emerging artist with a broad range of talent, but is not internationally recognised.  The Tribunal accepts that the applicant has participated in all of the artistic related endeavours that she has provided evidence in relation to. 

28. In assessing the requirements of paragraph 858.212(2)(a) at the time of application on 5 April 2016, the Tribunal considers it would be reasonable to expect that someone claiming to have an internationally recognised record of exceptional and outstanding achievement would be able to point to more extensive list of achievements in, or industry recognition of her work, than that provided by the applicant in this case. Whilst the Tribunal does not want to detract from what is a positive and personally notable achievement, the applicant has won only one University facilitated prize. She has exhibited in only one major “World City” in Berlin, and has not received any grants in relation to her work.  She uses the word “emerging” herself on occasion to describe the organisations she has been involved with and/or exhibited with (RAW Gold Coast and Malfet Arts).

29. The Applicant’s role as “Artistic Coordinator and Visual Artist” for the Bonjour French Festival was limited to involvement on the Gold Coast, where the applicant resides.  Other than the applicant’s own assertions, there is no evidence before the Tribunal that the Bonjour French Festival was of any international importance.  The Form 1000 submitted in conjunction with the applicant’s visa application describes the Bonjour French Festival as being “awarded one of the 20 best French events in Australia”.  There is no reference to the importance of the festival on any international level. The Tribunal finds that the Bonjour French Festival, although possessing a French theme, was an Australian festival that participation in by the applicant was consistent with her status as a local, or emerging, artist.

30. There is no evidence before the Tribunal, save for the applicant’s own assertions, of any international acclaim by others in the field, save for the previously mentioned University prize. On the evidence before it, the Tribunal does not consider that this is evidence of international recognition on the part of the applicant.

31. For the reasons set out above, and having regard to what might reasonably be expected of someone who claims to have an 'internationally recognised record of exceptional and outstanding achievement' as an artist, the Tribunal is not satisfied that the applicant's record has been 'out of the ordinary', 'exceptional', or 'outstanding'. It is also not satisfied on the evidence before it that the applicant's record of achievement has been 'internationally recognised', as required by paragraph 858.212(2)(a).  In reaching this conclusion the Tribunal has considered the applicant's personal qualities and undoubted commitment to the arts. The Tribunal does not doubt the sincerity of the applicant's commitment to her field.

32. While potential is not irrelevant, the statutory test clearly calls for an internationally recognised record. It is not a visa designed to give those without a such a record an opportunity to establish one for the first time.

1. The Tribunal considers that the applicant's achievements at the time of application do not meet the exacting requirements of cl.858.212(2)(a) of Schedule 2 to the Regulations.

2. Since the applicant does not meet cl.858.212(2)(a), and no evidence has been provided indicating that the applicant meets cl.858.212(4), the Tribunal finds that the applicant does not meet cl.858.212. The Tribunal must therefore affirm the decision under review.

3. The Tribunal also finds that the secondary applicant does not meet the requirements of cl.858.321 as she is not a member of the family unit of a person who satisfies the primary criteria.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

   Bridget Cullen
   Member