Geertsen (Migration)

[2018] AATA 2673

Geertsen (Migration) [2018] AATA 2673 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Katharina Francisca Aletta Geertsen

CASE NUMBER:  1605731

DIBP REFERENCE(S):  BCC2016/542592 BCC2016/543028

MEMBER:Mary Sheargold

DATE:21 June 2018

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 21 June 2018 at 11:15am

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Internationally record of exceptional and outstanding achievement – Specialist dance teacher – Meaning of profession – Definition of vocation and occupation – Qualifications and experiences – No internationally recognised record – Ministerial Intervention requested – Decision under review affirmed

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

CASES
Bretag v MILGEA [1991] FCA 582
Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA & Anor [2007] FMCA 664

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 15 April 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 3 February 2016. The delegate refused to grant the visa on the basis that the applicant did not have an internationally recognised record of exceptional and outstanding achievement in her profession.

3. The applicant appeared before the Tribunal on 24 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Amy Wiseman, David Leventhal, Erica Rose Jeffrey, Paige Gordon, and Shelley Yacopetti.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Distinguished Talent (Residence) (Class BX) visa is a permanent visa 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. 

7. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.”

8. The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations.

9. Relevantly, cl.858.212(2) requires that 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, 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 applicant has not made any claims in relation to cl.858.212(4).

11. In determining whether the applicant meets cl.858.212(2), all of the stated subclauses must be met. The Tribunal notes that the applicant has produced a completed, approved Form 1000 in accordance with cl.858.212(2)(e), and that cl.858.212(2)(f) is not relevant to the applicant.

12. The applicant’s claim hinges on whether she can satisfy cl.858.212(2)(a)(i) of Schedule 2 to the Regulations. That is, does she have an “internationally recognised record of exceptional and outstanding achievement in a profession”? At the outset, the Tribunal notes that this is a time of application criteria: that is, the applicant must have been able to satisfy this requirement at the time she lodged her visa application on 3 February 2016. Because of this, the applicant’s achievements in her field between that date and the date of this decision can be used as an aid, but in the absence of relevant evidence, they are not to be treated as determinative: Bretag v MILGEA [1991] FCA 582.

    The applicant’s profession

13. The applicant makes her claim that she satisfies cl.858.212(2)(a)(i) of Schedule 2 to the Regulations because she is a “specialist dance teacher”.

14. In determining whether or not a “specialist dance teacher,” which in the context of the applicant’s claim is taken to mean a dance teacher for persons with illness or disability, can be considered a distinct profession, the Tribunal has considered the range of submissions received from the applicant and her representative, as well as evidence from the applicant with respect to her formal qualifications.

    What is a profession?

15. There is no definition of “profession” in either the Regulations or the Act.  While the Tribunal is not bound by Departmental policy, the Tribunal notes that there is no discussion of the scope of the term “profession” in the Department’s PAM3.

16. Therefore, the Tribunal has had recourse to the common understanding of the term “profession”.  According to the Macquarie Dictionary, the primary definition of a “profession” is “a vocation requiring knowledge of some department of learning or science, especially one of the three vocations of theology, law and medicine” and the secondary definition is “any vocation, occupation, etc.”.  These definitions are very broad.

17. The next consideration is the definitions of “vocation” and “occupation” and whether or not the applicant’s claimed profession of “specialist dance teacher” can be considered as a “vocation” or an “occupation”.  The Macquarie Dictionary defines “vocation” as “a particular occupation, business or profession; a trade or calling.”  This definition is unhelpful and circular.  Similarly, the definition of “occupation” set out in the Macquarie Dictionary does not lead to a clear answer.  The primary definition of “occupation” is “one’s habitual employment; business, trade or calling.”

18. At its most basic level, a dance teacher would fall within the definition of “profession” for the purposes of cl.858.212(2)(a)(i) because it can be considered as “one’s habitual employment”. However, whether or not a specialisation within a profession is a distinct profession itself is questionable. This is especially so in circumstances where the applicant struggles to clearly and decisively articulate the nature of her practice as a “specialist dance teacher”. The applicant argues that she is a specialist in the community sector, and also that she is a specialist in dance therapy for sufferers of Parkinson’s disease.

    The applicant’s submissions

19. The applicant acknowledges that she holds limited formal qualifications in education or teaching.  However, in her supplementary submissions dated 1 May 2018, she argues that “dance is taught in a variety of different settings and sectors that are not regulated in the way that the formal education sector is [regulated].  There is no strict rule to identify who is qualified and there is no prescribed route in how to become qualified.”  The Tribunal rejects the applicant’s submission, and notes that formal qualifications in dance teaching are available at a number of institutions both in Australia and around the world.  For example, the Royal Academy of Dance provides accreditation courses for dance teachers, the Australian College of Physical Education in Sydney offers a four-year Bachelor of Dance Education degree, and, as discussed below, the applicant holds a Diploma for Dance Teaching and Learning.  While the Tribunal acknowledges that many exceptional performers in the fields of dance, music and theatre utilise their skills to teach alongside their performing careers, these artists are considered primarily as professional performers and not primarily as teachers or pedagogues (though the Tribunal acknowledges that many elite performers are sought-after pedagogues).  The profession of teaching is distinct from a performance-based career, and the fact that courses of study directly designed for pedagogical careers rather than performance-based careers exist, such as those mentioned above, demonstrate this.

20. Further, while arguing that a professional dance teacher does not require formal qualifications in education, the applicant has provided the Tribunal with an 11 page table setting out her education and courses of professional development that have supported her in becoming a specialist dance teacher, as well as outlining her range of dance teaching experience throughout her life, both in Australia and overseas.  At the hearing, the applicant gave oral evidence of her intention to complete the Royal Academy of Dance’s Silver Swans program, designed to equip dance teachers to provide dance therapy to older persons.  As set out above, the Tribunal is primarily concerned with considering the applicant’s qualifications and experience at the time she applied for her Subclass 858 visa. That is, qualifications and experience obtained prior to 3 February 2016.

21. The Tribunal notes that the applicant’s two formal qualifications, a Bachelor of Arts (Honours) Dance Theatre from the Trinity Laban Conservatoire of Music and Dance in London awarded in 2011, and a Bachelor of Arts (Honours) Dance from the Western Australian Academy of Performing Arts in Perth awarded in 2013, are performance-based qualifications that included minor elements of dance teaching/pedagogy within the curriculum.  In terms of qualifications as a specialist dance teacher, the applicant has listed a Diploma for Dance Teaching and Learning from Trinity Laban gained in June 2012, and has completed both the Ausdance Skill Set for Teaching Dance in October 2014 and the Dance for PD® Introductory Teacher Training on 15 and 16 February 2015, amongst other minor courses, as set out in her table of theoretical knowledge and education.  The Tribunal finds that the applicant’s tertiary studies, as well as her courses of professional development listed above, assist in her claim that she is a “specialist dance teacher”, and was so at the time she applied for her Subclass 858 visa.

22. The Tribunal commends the applicant for her dedication to her professional development as a specialist dance teacher and her commitment to dance teaching generally.  Based on her qualifications, experience and courses of professional development set out above, the Tribunal is persuaded that the applicant could have been considered a “specialist dance teacher” primarily working with students with illness or disability at the time of applying for her Subclass 858 visa on 3 February 2016.

    Internationally recognised record of exceptional and outstanding achievement

23. The applicant has provided both the Department and the Tribunal with extensive documentation in support of her application, including letters of recommendation and oral evidence from a number of highly regarded members of the Australian dance community, experts in the field of dance therapy for sufferers of Parkinson’s disease, and other experts in the arts and health including Erica Rose Jeffrey, and the Medical Director of the Parkinson Center Nijmegen in the Netherlands.  This evidence suggests that the applicant is a gifted, dedicated, hard working dance teacher with a unique ability to engage with her students to achieve excellent results.

24. The applicant hinges her claim as a specialist dance teacher on either being specialised in the community sector, or as a specialist dance teacher especially in the field of dance therapy for sufferers of Parkinson’s disease.  The applicant’s qualifications to teach in these areas that were held at the time of applying for her Subclass 858 visa are set out above.

25. Given the Tribunal accepts the applicant’s profession as that of “specialist dance teacher”, the critical consideration is whether she had an internationally recognised record of exceptional and outstanding achievement at the time she applied for her Subclass 858 visa on 3 February 2016. 

26. 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. A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA & Anor [2007] FMCA 664. The Tribunal is mindful of the reasoning in Gaffar v MIMIA [2000] FCA 293 that the legislative requirement does not require something that makes the visa applicant's record unusual or special or out of the ordinary.

27. During the hearing, most of the witnesses’ oral evidence focused on the applicant’s current record of qualifications, achievements and abilities, and the accumulation of her achievements over time.  The Tribunal accepts that since lodging her Subclass 858 visa application on 3 February 2016, the applicant has invested heavily in her career and has continued to develop her skills, and notes that she is now one of 5 dance teachers in the world selected to complete the official Dance for PD® Certification program, and that she is currently undertaking the modules required to complete that training. 

28. The representative’s Outline of Submissions dated 23 April 2018 conflates the applicant’s contemporary and historical achievements as a specialist dance teacher, and states, in summary, that:

    a)the applicant is much more than an “emerging professional”;

    b)her qualifications are “exemplary”;

    c)during her undergraduate studies, the applicant developed her skills as a dance teacher specialising in the community sector;

    d)the applicant has consistently engaged in ongoing continuing professional development by completing numerous specialty courses;

    e)since relocating to Australia in 2013, the applicant has become one of Australia’s leading specialist dance instructors, and who is the only dance teacher in Australia to be invited for the superior certification process in the Dance for PD® system;

    f)the applicant’s “exceptional talent as a Dance for PD teacher is internationally renowned” and her contribution to the Dance for PD program in Australia has been variously described by her referees as “pivotal”, “outstanding”, “invaluable”, “instrumental”, and “essential”;

    g)that the founder of Dance for PD, David Leventhal (who appeared as a witness at the hearing), states the applicant “is to be recognised as a teaching artist of international calibre whose outstanding credentials set her apart from her peers”;

    h)the applicant is known as a “vital leader” and “a revered member of [the] global Dance for PD network” with “skills and experience not readily equalled in [Australia]”;

    i)“that, for the purposes of being eligible for this visa, the applicant’s area of achievement need not be popular or well-known, and that the applicant ought not be penalised for attaining an internationally recognised record of exceptional and outstanding achievement in a highly specialised form of dance teaching (as opposed to ballet, for example)”; and

    j)while it is acknowledged that it is difficult for the applicant to prove the requisite standing in her field because her achievements are not measured quantatively by awards, competition results or official publications, she relies heavily on statements from prominent industry leaders, current and past employers, and current and past peers.

29. The Tribunal has considered the representative’s submissions, as well as the statements and supplementary statements provided by the applicant, and the letters in support of her application, as well as the oral evidence provided by both the applicant and the witnesses at the hearing.  The Tribunal accepts the representative’s submission that the applicant should not be penalised for working in a niche area of specialty as a dance teacher.  However, the Tribunal must still be satisfied that the applicant has an internationally recognised record of outstanding and exceptional achievement as a specialist dance teacher.

30. The Tribunal acknowledges that the applicant has had a longstanding commitment and dedication to developing her career as a specialist dance teacher, as evidenced by the courses of study she completed at the time she was completing her first undergraduate degree at Trinity Laban.  While those courses assist the applicant in demonstrating that she is a specialist dance teacher, simply have undertaken courses of study in dance teaching for the benefit of certain vulnerable subsets of the community are not adequate to distinguish the talent of the applicant from that of other specialist dance teachers.

31. The representative’s submissions rely heavily on recognising the applicant’s specialisation in dance teaching as being a specialist dance teacher working primarily with sufferers of Parkinson’s disease.  This is consistent with the emphasis placed by the applicant on her desires for her future career and the types of work she enjoys and thrives in the most.  While there is considerable evidence before the Tribunal that the applicant is becoming internationally recognised for her work as a dance teacher specialising in dance therapy for sufferers of Parkinson’s disease today, there is no clear evidence before the Tribunal that the applicant had an internationally recognised record of outstanding and exceptional achievement either as a specialist dance teacher working primarily with sufferers of Parkinson’s disease, as a specialist dancer working in the community sector, or even as a dance teacher generally, at the time she applied for a Subclass 858 visa on 3 February 2016.

32. The evidence before the Tribunal suggests that as at 3 February 2016, the applicant had chosen to focus her dance teaching practice primarily in the Dance for PD® system, and there is clear evidence before the Tribunal of the applicant’s commendable commitment and dedication to this important form of therapy for Parkinson’s disease sufferers in Australia (and primarily in Perth where the applicant is based).  However, the Tribunal is unable to find that, on 3 February 2016, the applicant had an internationally recognised record of outstanding and exceptional achievement as a specialist dance teacher.

33. In reaching this finding, the Tribunal agrees with the delegate’s reasoning that “the applicant’s achievements and reputation are not reflective of someone in the top echelons of the field having skills and abilities considered extraordinary, remarkable, and superior to others” and that “the applicant’s achievements are not unlike those of other professionals delivering similar dance classes focusing on health and wellbeing [and that] [t]he material evidence provided is more reflective of an emerging professional who over time may establish a reputation at the very top of the field.”  The applicant is clearly a gifted and dedicated dance teacher who has made a valuable and noteworthy contribution to dance therapy for both sufferers of Parkinson’s disease and those affected by disability, mental health concerns and social exclusion in Australia.  However, based on all the evidence before it, the Tribunal finds that at the time of applying for a Subclass 858 visa, the applicant did not have an internationally recognised record of outstanding and exceptional achievements as a specialist dance teacher.

1. Therefore, the applicant cannot satisfy cl.858.212(2)(a)(i) of Schedule 2 to the Regulations. The applicant has not made any claims under any other subclause within cl.858.212(2)(a) of Schedule 2 to the Regulations, nor under cl.858.212(4) of Schedule 2 to the Regulations. Because the applicant cannot satisfy cl.858.212(2)(a)(i), she cannot satisfy cl.858.212(1) of Schedule 2 to the Regulations. As such, her application for a Subclass 858 visa cannot be approved.

2. At the hearing, the representative requested that in the event the Tribunal could not make a favourable finding on the applicant’s review application, that the Tribunal refer this matter to the Minister for Home Affairs for Ministerial intervention on the basis of the exceptional economic, scientific, cultural or other benefit that would result from the applicant being permitted to remain in Australia.  The representative referred to the body of evidence before the Tribunal in relation to the visa application in support of the applicant’s request.

3. The Tribunal has carefully considered the request for the Tribunal to recommend the matter to the Minister for intervention on the basis of the submissions above and the Minister’s guidelines regarding the unique and exceptional circumstances under which a matter may be recommended to the Minister for intervention.  Having considered all of the information available to it, the Tribunal declines the applicant’s request to recommend the matter to the Minister for intervention. However, it remains open to the applicant to make such a request if she believes that she has sufficient grounds to warrant Ministerial intervention.

   DECISION

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

   Mary Sheargold
   Member