Gecaite (Migration)

[2019] AATA 940

Gecaite (Migration) [2019] AATA 940 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kotryna Lyra Gecaite

CASE NUMBER:  1803793

DIBP REFERENCE(S):  BCC2017/2655794 BCC2017/2709522

MEMBER:Amanda Mendes Da Costa

DATE:4 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2019 at 1:01pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – theatre production – graduate of prestigious schools for the performing arts in the USA – emerging talent in the New York theatre scene – works received critical acclaim in Australia – achievements primarily attained in Australia and not overseas – decision under review affirmed

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

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 29 January 2018 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 July 2017. The delegate refused to grant the visa because the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts.

3. The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Phoebe Taylor and Ryan Stewart.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations), which require the applicant to meet the provisions of subclauses (2) or (4). Subclause (2) sets out the following requirements:

   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; and

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

   (e)  produces a completed approval form 1000.

   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.

6. The applicant has not made any claims in relation to cl.858.212(4).

7. The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated paragraphs must be met.

8. Paragraph 858.212(2)(a) requires the applicant to have an internationally recognised record of outstanding achievement in: a profession; a sport; the arts; or academia and research.

9. The applicant claims that she has an internationally recognised record of exceptional and outstanding achievement in theatre production.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(iii) as belonging to the arts for the purposes of cl.858.212(2)(a).

10. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Regulations.

11. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

12. 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. 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.’

13. 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 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.

14. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, which is apposite. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. The documents provided to the Department and Tribunal include the following:

    ·Form 1000 nomination form, signed by Gorkem Acaroglu and dated 17 July 2017.

    ·Synopsis for Low Level Panic, a play directed by applicant, January 2019.

    ·Reference, Lachlan Martin, dated 19 November 2019.

    ·Reference, Heather Allardyce, dated 22 November 2018.

    ·Reference, Jacinda Mclaughlin dated 28 November 2018.

    ·Letter, Thomas Noble, Artist and Venues Support Co-ordinator, Adelaide Fringe Festival, dated 28 November 2018.

    ·Various published reviews of the applicant’s works in Australia.

    ·Letter of acceptance, Laura Hughson, Don Dunstan Foundation, dated 5 February 2019.

20. The applicant is a national of the United States of America (USA) who arrived in Australia in 2016.  She was born in Lithuania but relocated to the USA with her mother in 1997 when her mother won a ‘green card’ in a raffle.  The applicant was subsequently granted US citizenship and completed her secondary education in New York, where she attended the prestigious Fiorello H. LaGuardia High Scool, formerly known as the High School of Performing Arts.  This school specialising in teaching visual and performing arts and the 1980 film, Fame, was based on the lives of the students at the school.

21. After completing her secondary education, the applicant attended Mason Gross School of the Arts at Rutgers University, New Jersey.  This school provides undergraduate and graduate degrees in dance, filmmaking, music, theatre and acting.  The applicant graduated with a Bachelor of Theatre majoring in acting.

22. As part of her undergraduate studies, the applicant spent 12 months working as an actor at the Globe Theatre in London where she appeared in a production of the Twelfth Night, playing the character Olivia.  This production was part of the Globe Theatre’s season of Shakespearean plays. 

23. Following graduation the applicant worked as an actress and writer in New York. She wrote and produced two plays and was head writer and actor of a sketch/improvisation company in New York.  The applicant decided to leave New York and come to Australia as she thought there were better opportunities for her to advance her career here as a director and writer.  She also wanted to establish herself as a drama teacher, bringing the techniques and methods she learnt at the Mason Gross School to Australian students.

24. Since arriving in Australia, the applicant has had a number of acting roles in theatre and short film.  The reviews for these performances, which were provided to the Tribunal, suggest that the applicant’s performances were well received by both critics and audiences alike.  In January 2019 the applicant directed the play Low Level Panic for the Effing Theatre Company.   

25. The applicant has also established a production company, producing her own plays in small theatres and at arts festivals.  The Tribunal notes that these productions have included the plays Nursery Web and The Cocoon, as part of the program in the Adelaide Fringe Festival in 2018.  More recently, the applicant has commenced co-producing with Mr Stewart, and their new production of The Cocoon will be performed again at the Adelaide Fringe Festival this year, with a production of the play Party Snake to be performed at the 2019 Midsumma Festival.

26. When asked about her professional reputation in New York the applicant said that due to the prestigious reputation of both LaGuardia High Scool and the Mason Gross School, in the performing arts, her own reputation was higher than that of her peers and when she attended auditions, her curriculum vitae was placed in the group of applications which would be considered for an acting role.  She also said that given her work in independent theatre in New York, other actors had wanted to act with her.

27. The applicant told the Tribunal that if the visa was granted, she wanted to grow the production company established by her and Mr Stewart, to a point where they had 10 productions per year.  She envisaged that half of the plays would be written by her and the remaining by other Australian writers.  The applicant also said that she was interested in teaching acting and considered that she had a significant contribution to make in this area as the acting methods she studied in the USA are yet to be practised in the country.

28. The applicant’s nominator is Gorkem Acaroglu, who is a theatre director, writer, dramaturge and producer.  Ms Acaroglu is the recipient of the Australian Writer’s Guild 2010 award for her play, Yet to Ascertain the Nature of the Crime.  In 2012 Ms Acaroglu was the recipient of the Sidney Myer Creative fellowship and has also been granted the Asialink Performing Arts Residency and the Australia Council’s Artlab Grant.

29. In her nomination form, Ms Acaroglu attests to the applicant’s record as a theatre practitioner with an international reputation.  She notes that the applicant’s achievements were of exceptional quality and quantity, particularly given that at the time of nomination the applicant was only 27 years of age.  Ms Acaroglu opined that if granted a visa, the applicant would bring her extensive knowledge, training and practice to the Australian community and would influence artists and audiences with her professional wisdom and clarity of mind.  Ms Acaroglu said that the applicant’s intellectual rigor and innovative approach to theatre would inspire younger artists and connect those involved in the Australian theatre with artists in the international arena.

30. In Ms Acaroglu’s opinion, the applicant had, at the time of nomination, an internationally recognised record of exceptional and outstanding achievement in the area of the arts.   

31. The Tribunal also heard evidence from Phoebe Taylor and Ryan Stewart.  Ms Taylor is an actress who has worked in independent theatre for the past 15 years.  In 2018 she appeared in a production of The Cocoon produced by the applicant and Mr Stewart and is due to appear in another of their productions this year.  Ms Taylor described the applicant as an outstandingly talented writer, director and producer.  She described the applicant’s writing as very poetic and humanistic and explained that as a director, the applicant had a level of attention to detail that was rarely seen in other directors.

32. Mr Stewart, who is an actor, met the applicant in 2016 when they both appeared in the same production.  He told the Tribunal that the applicant’s performance in that production had received very good reviews. Whilst Mr Stewart is predominantly an actor he has recently established a production company with the applicant and he is being mentored by her as a theatre producer.

33. Mr Stewart told the Tribunal that the actors who have appeared in their productions are keen to perform in future productions of the company, and in the two years since she arrived in Australia, the applicant had developed a strong name in Melbourne as an actress, writer, director and producer.

34. Ms Allardyce is a Melbourne based actor and indigenous health practitioner who was a member of the cast of C’est encore mieux l’apres-midi (Love is better in the afternoon), a play directed by the applicant for the Melbourne French Theatre in Melbourne in 2018.  In Ms Allardyce’s opinion, the director is an exceptional playwright, director and producer whose work is making an important contribution to the independent theatre scene in Australia.    

    FINDINGS

35. The Tribunal accepts that the applicant’s record is indicative of a gifted artist and her achievements in the theatre and short films in Australia have received critical acclaim.  Her own works have been well received at a number of arts festivals.  The Tribunal also acknowledges that the applicant arrived in Australia with few contacts and in a relatively short period of time she has established a successful career as an actor, writer, director and producer.

36. The Tribunal further recognises that the applicant is a graduate of two prestigious schools for the performing arts in the USA and, prior to arriving in Australia, was an emerging talent in the New York theatre scene.

37. The Tribunal finds that the applicant is an artist with a broad range of talent and accepts her evidence and that of her witnesses in relation to the applicant’s skills and artistic endeavours.

38. However, the applicant’s achievements, although impressive and even unusual and out of the ordinary, have primarily been achieved in Australia and not overseas.  The performance reviews provided by the applicant were published in Australian arts based publications and there is no evidence before the Tribunal of any international recognition for her achievements.

39. Accordingly, the Tribunal is not satisfied that at the time of application, the applicant had an international record of exceptional and outstanding talent.  Accordingly she does not meet the requirements of cl.858.212(2)(a).

40. Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.

    DECISION

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

    Amanda Mendes Da Costa
    Member