Heon (Migration)

[2017] AATA 1870

Heon (Migration) [2017] AATA 1870 (6 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jean-Philippe Heon

CASE NUMBER:  1601205

DIBP REFERENCE(S):  BCC2015/1308575

MEMBER:Danica Buljan

DATE:6 October 2017

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 06 October 2017 at 4:13pm

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – The Arts – Film and television – Production and acting – Exceptional and outstanding achievement – Internationally recognised – Existing record of achievement

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 858.212

CASES

Bretag v Immigration Review Tribunal [1991] FCA 582]

Zhang v Minister for Immigration and Multicultural Affairs  & Anor [2007] FMCA 664

Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
Re Drake (No. 2) (1978-1980) 2 ALD 634
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 28 January 2016 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 6 May 2015. 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 actor.

3. The applicant applied to the Tribunal on 2 February 2016 for a review of the delegate’s decision and a copy of the primary decision record was included with the application for review.[1] The Tribunal has before it the departmental file[2] 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.[3]

   [1]     AAT Case file 1601205 (T1), f.1-14

   [2]     D1 - Departmental file BCC2015/1308575, folio numbered 1-147b

   [3]     T1 - AAT Case file 1601205, folio numbered 1-38

4. The applicant appeared before the Tribunal on 5 April 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:

   (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

   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.

   [Tribunal emphasis]

7. At the Tribunal hearing the applicant confirmed that he had not provided specialised assistance to the Australian government in matters of security at the time of application on 6 May 2015. 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. In considering the evidence and submissions before it, the Tribunal notes that its role requires a ‘de novo’ assessment of the applicant’s claims and case. In addition, in determining whether the requirements of subclause 858.212(2) are met, the Tribunal has taken into account the general principle in Bretag v Immigration Review Tribunal [4] (‘Bretag’s case’) that it may have regard to the subsequent history of a matter for the purpose of testing an issue at the time of application, so long as it “…tends logically to show the existence or non-existence of facts relevant to the issue to be determined.”

   [4] [1991] FCA 582

9. Accordingly, in assessing the applicant’s ‘internationally recognised record of exceptional and outstanding achievement’, the submissions and evidence are discussed as follows:

   Internationally recognised record of exceptional and outstanding achievement – paragraph 858.212(2)(a):

10. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as an actor / director / production assistant in film and television. As a result, the Tribunal finds that the applicant’s claims come within subparagraphs 858.212(2)(a)(i) and (iii) as belonging to a profession and the arts for the purposes of paragraph 858.212(2)(a).  

11. 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.

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.”[5]  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.”[6]

    [5]      – Accessed 2 October 2017: T1, f.31

    [6]     – Accessed 2 October 2017: T1, f.32 

13. 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.[7]

    [7]     See Zhang v Minister for Immigration and Multicultural Affairs  & Anor [2007] FMCA 664

14. 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.[8] Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (‘Gaffar’s case’)[9] French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’.

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

    [9] [2000] FCA 293 at [20]

15. 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.

16. 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:

    o    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:

    o    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.

    [Tribunal emphasis]

17. Importantly, the Tribunal also observes that in Gaffar’s case the Court was dealing with the wording of the then clause 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.

18. On the other hand, 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.

19. Therefore, the applicant’s record of exceptional and outstanding achievement must be ‘internationally recognised’. The Tribunal notes that there is presently no Court authority in relation to what is required to meet this aspect of the criterion.

20. According to the Macquarie Dictionary Online the noun ‘international’ (of which ‘internationally’ is the adverb) is variously defined to mean “1. between or among nations…2. of or relating to different nations or their citizens…3. relating to the relations between nations...”.[10]

    [10]      –Accessed 2 October 2017: T1, f.33

21. The word ‘recognise’ (of which ‘recognised’ is the past tense) is variously defined to mean:

    1.to know again; perceive to be identical with something previously known: he had changed so much that one could scarcely recognise him.

    2.to identify from knowledge of appearance or character.

    3.to perceive as existing or true; realise: to be the first to recognise a fact.

    4.to acknowledge formally as existing or as entitled to consideration: one government recognises another.

    5.to acknowledge or accept formally as being something stated: to recognise a government as a belligerent.

    6.to acknowledge or treat as valid: to recognise a claim.

    7.to acknowledge acquaintance with (a person, etc.) as by a salute.

    8.to show appreciation of (kindness, service, merit, etc.) as by some reward or tribute.[11]

    [11]        – Accessed 2 October 2017: T1, f.34   

22. 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.  

23. 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.

    [Tribunal emphasis]

24. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[12] 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. As such, they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[13]

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

    [13] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

25. Accordingly, 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.

26. 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.[14]

    [14] See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70

27. The Tribunal has considered the evidence set out in, and accompanying, the applicant’s visa application form (dated 28 April 2015[15]), as well as his oral evidence at the hearing, regarding his success as a professional actor overseas and in Australia. Specifically, the applicant claimed he was a professional actor who had played roles in a “large number of international movies winning some prestigious awards”, who also possesses experience working with screenwriters and film/television directors and in production work. In addition, the applicant submitted that his career in acting and directing movies would allow him to expand the scope of Australian cinematography and pursue drama teaching that would benefit Australians. 

    [15]      D1, f.8

1. In support of these claims, the applicant provided numerous references[16], a flyer from AB-International[17], an IMDb[18] profile of his film / television work, and copies of contracts he had entered into in Australia as an actor.[19]

   [16]

   [17]    D1, f.69

   [18]    IMDb: The Internet Movie Database is an online database of information related to films, television programs and video games, including cast, production crew, fictional characters, biographies, plot summaries, trivia and reviews, operated by IMDb.com, Inc., a subsidiary of Amazon. As of September 2017, IMDb has approximately 4.5 million titles, 8.1 million personalities in its database, as well as 80 million registered users: – Accessed 2 October 2017: T1, f.38

   [19]      T1, f.21-28

2. In assessing the applicant’s record of achievement in the arts, given the film and television work he has undertaken in France, Europe and Australia, the Tribunal has had regard to the claim that his talents as an actor / director / production assistant are unique. The Tribunal also accepts that in drawing the kinds of country comparisons contemplated by policy, there is likely to be a significant difference between the public recognition offered to those associated with major movie producers from Hollywood, and that available to less well-known and non-English speaking film / television producers. The Tribunal is therefore mindful of the need to take care in conducting comparisons in different cinematographic styles at the international level.

3. In other words, the Tribunal acknowledges that it will always be a question of fact as to whether achievements in a particular area of the arts can be considered exceptional or outstanding, particularly having regard to the number of participants in a specific field. Consequently, the Tribunal gives this factor due weight in considering the issues before it.  

4. Nevertheless, the Tribunal notes that the evidence to support the applicant’s claims in relation to paragraph 858.212(2)(a) is somewhat limited. This is especially so given that the applicant was on notice of the delegate’s reasons for refusing his visa application, including the fact that the information he had provided with his visa application was insufficient to result in the grant of a subclass 858 visa to him.

5. Accordingly, in assessing the applicant’s ‘internationally recognised record of exceptional and outstanding achievement’, the submissions and evidence are discussed as follows:

   The Applicant’s Employment in the Television / Film / Cinematography Field

6. In relation to the applicant’s employment in the film / television field, based on the information set out in his visa application[20], nomination[21] and ‘Personal particulars for assessment including character assessment’ (Form 80[22]) and the other evidence he provided with his visa application, the Tribunal accepts that the applicant has been employed within this industry as an actor / director / production assistant.

   [20]    D1, f.8

   [21]    D1, f.24

   [22]    D1, f.25-45

7. Nevertheless, the Tribunal notes that the focus of paragraph 858.212(2)(a) is not on whether the applicant was employed in his chosen field of the arts at the time of application, as this is a separate requirement in subclause 858.212(2)(d). Rather, it is on the applicant’s internationally recognised record of exceptional and outstanding achievement in his chosen field.

8. As discussed below, there is little in the evidence regarding the applicant’s employment that establishes that he had an internationally recognised record of exceptional and outstanding achievement in his chosen field when he lodged his visa application in May 2015. For example, there is little to suggest that the applicant has won any internationally recognised awards for his performances or work in this field. Whilst the Tribunal acknowledges that the applicant has been involved in film / television productions that have either been entered into an international film festival, and in the case of ‘Lazy Company’ received two awards, the evidence does not suggest any focus on the applicant’s work or performance, as opposed to that of the many other individuals association with these productions.

9. Therefore, the Tribunal gives the evidence relating to the applicant’s employment within the film / television industry at the time of application in May 2015 less weight for the purposes of paragraph 858.212(2)(a).

   The Applicant’s History and Achievements as an Actor / Director / Production Assistant:

10. At the hearing the applicant confirmed for the Tribunal that the information set out in his Form 80[23] was correct. In particular, the applicant advised that, although he had formal qualifications as a certified sports instructor in France[24], he had studied acting in Paris at a private school, Atelier Fanny Vallon (October 2006 – May 2008), and in London at the City Lit Drama School (June 2010 – December 2011[25]). 

    [23]    D1, f.25-45

    [24]    D1, f.51

    [25]    D1, f.73

11. In terms of his specific achievements in the film / television field, the applicant gave evidence that he was the assistant director / second unit director for ‘Far from Heaven’. This was a documentary filmed in Los Angeles (September 2009 – December 2009) about female gangs in that city.

12. The applicant stated that he first commenced work as a professional actor in 2012, after he had left London, in the French television comedy, ‘Lazy Company’. In particular, the applicant told the Tribunal that he had played the role of ‘Quinn’ in three episodes of this comedic series, which ran for 6-7 episodes.[26] The Tribunal notes that this confirmed by the reference provided by Mr Henri Debeurme from Empriente Digitale, based in France[27], as well as the flyer from AB-International (dated 2013[28]).  

    [26]    See also D1, f.54

    [27]    D1, f.70

    [28]    D1, f.69

13. The applicant gave evidence that in 2013 he appeared in ‘The Mysterious Artist’, a short French film directed by Ms Aleeya McGuid, a cinema director at the International Film School of Sydney, [29] which is confirmed by her in the reference dated 31 January 2015.[30]

    [29]    See also D1, f.40, 54 & 60-61

    [30]    D1, f.60-61

14. The applicant advised that in 2014 he worked for Adventure in Genre, a digital media production company in Melbourne, where he made a short film, the name of which the applicant could not recall at the hearing. Nevertheless, the Tribunal notes that the reference (dated 15 April 2015[31]) from Mr Rohan Jones, the producer / writer/ director for this company, advises that the applicant worked with him to produce a web series, ‘Too Expensive for You’.   

    [31]    D1, f.65-66

15. The Tribunal observes that the applicant’s IMDb profile[32], together with an online report from C21Media[33], substantiate his claims to have been involved with ‘Far from Heaven’, ‘Lazy Company’, ‘The Mysterious Artist’, as well as short film ‘Make a Wish’ from  2011 to 2014. In particular, this evidence indicates that the applicant received three credits as an actor, and a credit as a second unit director / assistant director, and as a first assistant camera person, for this work.  

    [32]    D1, f.54

    [33]    D1, f.55

16. Similarly, the remaining references submitted by the applicant (dated January 2015 – October 2015) from Mr Spencer McLaren (a producer at McLaren House[34]), Mr Lou Mitchell (a casting director at Maura Fay Casting[35]), Sophie Ruttmer Management (the applicant’s acting agent)[36], the Melbourne French Theatre Inc[37], Ms Sophie Love (the applicant’s former WWOOFer[38] employer), and the applicant’s nominator, Ms Hannah Hilliard (film and television director[39]) attest to his talents and work experience in film and television.   

    [34]    D1, f.91

    [35]    D1, f.76

    [36]    D1, f.71 7 90

    [37]    D1, f.67-68

    [38]    WWOOF: World Wide Opportunities on Organic Farms: see D1, f64

    [39]    D1, f.72 7 92b

17. As a result, and given the evidence before it, the Tribunal accepts that the applicant has worked in various acting and production roles in film and television since 2011. It also acknowledges that the applicant had been able to pursue a reasonably professional career in this field, which also allowed him to perform and work in a number of different countries, by the time he lodged his visa application in May 2015.

18. On the other hand, the evidence does little to demonstrate that the applicant had an internationally recognised record of exceptional and outstanding achievement as an actor / director / production assistant in television and / or film at the time of application on 6 May 2015.

19. Specifically, at the hearing the applicant gave evidence that the comedic series ‘Lazy Company’ won awards at two international festivals. Given the evidence before it, including the flyer from AB-International[40] and the reference from Mr Debeurme[41], the Tribunal accepts that in 2013 this television series won the best television award at the Luchon Festival and best international comedy at the Monte Carlo Tribunal Festival.

    [40]    D1, f.69

    [41]    D1, f.70

20. However, the applicant gave frank evidence that he did not personally win an award for his role as Quinn in this series at either of these festivals. He added that both of these festivals issued the award to the entire production team involved with ‘Lazy Company’. The applicant also clarified for the Tribunal that this meant all the directors, producers, actors and staff that brought the production to the television screen.  

21. As a result, whilst the Tribunal acknowledges that the applicant, as one member of the team involved with ‘Lazy Company’, contributed to the success of this comedic television series, there is little in this evidence to indicate that he personally received international recognition for his role in it.

22. In addition, the applicant gave evidence that ‘Far from Heaven’ was entered in a Paris film festival, but that it did not win any awards. Similarly, the applicant advised that Ms McGuid entered ‘The Mysterious Artist’ in several short film festivals in 2014, but to his knowledge it too had not won any awards.

23. The Tribunal notes that the reference from Ms McGuid confirms that this film was entered in the Austin Film Festival, Palm Springs International ShortFest, Los Angeles Film Festival, Rain Dance Film Festival, Athens International Film Festival and others during 2014. However, Ms McGuid does not mention the film winning any international awards or receiving any recognition as a result of its entry in any of these film festivals.[42]

    [42]    D1, f.61

24. Correspondingly, although the applicant and his nominator, Ms Hilliard, advised that ‘Make a Wish’ screened at the Cannes Film Festival[43], the applicant stated that he was unsure if it had won any awards.

    [43]    D1, f.72

25. Finally, the applicant stated that he appeared in the Australian feature film ‘The Spirit of the Game’, which was filmed in Australia during 2015. This film was based on the story of the basketball match between the United States and France at the 1956 Melbourne Olympics. The Tribunal notes that the applicant’s involvement in this film is confirmed by the ‘performer contract’ he applicant submitted in support of his application for review.[44]

    [44]    T1, f.21-22

26. Nevertheless, although the applicant told the Tribunal that this film was shown at the Palace Cinema Como in Toorak Road, South Yarra, he also gave evidence that he did not know if it had subsequently been entered in any film festivals.

27. Given the applicant’s evidence about each of these television / film productions, it is difficult to ascertain the extent to which the films / television show he has appeared in, or those with which he was involved in a behind-the-scenes capacity, have attracted wider recognition at either the national or international level. 

28. Accordingly, there is little in the evidence to confirm that the applicant’s performance as an actor, or his work in any other capacity in television or film, has been recognised such that he has acquired an internationally recognised record of exceptional and outstanding achievement for his work as an actor / director / production assistant in television and / or film at the time of application on 6 May 2015.

29. In addition, whilst the Tribunal accepts that the flyer from AB-International[45], the online report from C21Media[46] and the applicant’s IMDb profile[47] confirm that his involvement in film / television at the professional level, this evidence also have limitations for the purposes of paragraph 858.212(2)(a). Specifically, this evidence does not indicate the scale to which the applicant’s work has been distributed internationally. It also contains little to indicate that, as a result of being involved in any or all of these projects, the extent to which the applicant had achieved international film / cinematic / television industry recognition at the time of application in May 2015.  

    [45]    D1, f.69

    [46]    D1, f.55

    [47]    D1, f.54

30. Further, on the basis of the standard performer contracts (dated 11 November 2016 and 12 December 2016[48]) before it, the Tribunal accepts that the applicant was engaged to undertake a role in Australian television series, ‘The Dr Blake Mysteries’, in episode 3 of series 5. However, the Tribunal observes that the applicant’s involvement with this series was as a non-ongoing character in one episode for three days of shooting (23 September 2016, 7 and 17 October 2016). Moreover, the applicant’s engagement for this series occurred approximately 16 months after he lodged his visa application on 6 May 2015.

    [48]      T1, f.23-28

31. Accordingly, given the limited nature of the applicant’s involvement with this television production and the fact that it took place well after he lodged his subclass 858 visa application, the Tribunal gives this evidence less weight in determining whether he had an internationally recognised record of exceptional and outstanding achievement at the time of application on 6 May 2015. 

32. In assessing the requirements of paragraph 858.212(2)(a) at the time of application on 6 May 2015, 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 his work, than that provided by the applicant in this case. The Tribunal observes that, even applying the principles in Zhang v Minister for Immigration and Multicultural Affairs & Anor[49], the applicant’s list of achievements at the international level as an actor / director / production assistant is not overly long.

    [49] [2007] FMCA 664

33. As a consequence, the limited nature of the applicant’s evidence does not assist the Tribunal to form the view that he had an internationally recognised record of exceptional and outstanding achievement at the time of application.

34. As a result, the Tribunal is not satisfied that the applicant’s achievements in television / film at the time of application and to date constitute a record of exceptional and outstanding achievement. This is especially so given that paragraph 858.212(2)(a) also requires the applicant to demonstrate that this record is internationally recognised.  

35. Accordingly, whilst the Tribunal accepts that the applicant has acted and participated in the production of television programs and cinematic film, including documentaries, the Tribunal is not satisfied on the evidence before it that this necessarily indicates that he had an internationally recognised record of exceptional and outstanding achievement at the time of application.

36. Therefore, the Tribunal gives the evidence regarding the applicant’s employment in the television / film industry less weight in terms of its assessment of paragraph 858.212(2)(a).   

    The Applicant’s References:

37. The Tribunal has taken into account the numerous personal and professional references provided for the applicant that speak of his talents as an actor and film professional.[50] The Tribunal accepts that the applicant has received positive feedback from others actively engaged in television / film to this effect. The Tribunal also acknowledges that positive statements about an applicant’s skills and attributes may assist to demonstrate that they have an ‘internationally recognised record of exceptional and outstanding achievement’.

    [50]    D1, f.48, 60-61, 64-67, 70-72,76 & 90-92b

38. However, the Tribunal observes that favourable references may not, of themselves, necessarily support an applicant’s claims that they have an internationally recognised record of exceptional and outstanding achievement in the film / television industry.

39. In this case, the Tribunal is not persuaded that the applicant’s positive references regarding his talents as an actor / director / production assistant necessarily mean that he meets the requirements of paragraph 858.212(2)(a). This is because the evidence to support the applicant’s claims that he had an internationally recognised record of exceptional and outstanding achievement at the time of application in May 2015 is somewhat limited.

40. The Tribunal accepts that the applicant’s referees diversely describe him as a talented actor and film professional, as someone who requires minimal direction, and as a person who possesses the ‘x-factor’, as well as an individual who has comedic timing. It also acknowledges that this evidence points to the applicant’s potential as an actor.

41. On the other hand, the Tribunal also notes that the applicant’s referees, apart from variously referring to his roles in ‘Far from Heaven’, ‘Lazy Company’, ‘The Mysterious Artist’, ‘Make a Wish’ and ‘The Spirit of the Game’, largely do not refer to any specific achievements by the applicant that have resulted in international recognition. Notably, they do not refer to the applicant having won any major international awards for his performances or work in film or television.

42. Significantly, the applicant’s referees refer to his future potential to become an internationally recognised actor / film professional, whereas paragraph 858.212(2)(a) emphasises an applicant’s past record of achievement at the time of application. For example, Ms McGuid described the applicant as someone who “needs to have as much exposure to the world as possible” and she set out her belief “in his capabilities of making it as a successful international actor without a doubt”.[51] She therefore did not identify the applicant as someone who had an existing internationally recognised record of exceptional and outstanding achievement as an actor / director / production assistant at the time of application in May 2015.

    [51]    D1, f.60

43. Similarly, Ms Hilliard expressed her strong belief that the applicant “has the talent and commitment to succeed as an actor” and that he would be an asset to the Australian film / theatre industry. However, Ms Hilliard also did articulate any past record, or even current record, of exceptional and outstanding achievement  that could be considered internationally recognised for the purposes of paragraph 858.212(2)(a) at the time of application.    

44. Accordingly, whilst the Tribunal acknowledges the applicant’s personal and professional qualities and attributes as an actor / director / production assistant, including the favourable references submitted in support of his visa application, it places less weight on this evidence in its consideration of the issues before it.

    The Applicant’s Potential Cultural Benefit to Australia:

45. Finally, the Tribunal is satisfied that the applicant is well regarded by the nominator, and other members of the television and film industry in Australia as an actor / director / production assistant. As a consequence, the Tribunal accepts that the applicant’s presence in Australia has and would be beneficial to its multicultural society. In this cultural sense, the applicant has been an asset to the Australian community.

1. Nevertheless, given the evidence presented to it, for the reasons set out in this decision record, the Tribunal does not accept that the applicant’s potential to be of cultural benefit to Australia necessarily points to him having an internationally recognised record of exceptional and outstanding achievement when he lodged his visa application in May 2015. 

   Summation:

2. The central question before the Tribunal is whether the applicant has an internationally recognised record of exceptional and outstanding achievement. As noted above, at a qualitative level the criterion requires demonstrated excellence in the relevant occupation which is ‘out of the ordinary’. 

3. 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 actor / director / production assistant, 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).

4. In reaching this conclusion the Tribunal has considered the applicant’s personal qualities and undoubted commitment to film, television and cinema as art forms. The Tribunal does not doubt the sincerity of the applicant’s commitment to this field.

5. The Tribunal has also taken into account the applicant’s past film and television credits and his personal and professional references. It has further contemplated the applicant’s relatively long-standing employment within the film / television industry, and the positive contribution he has made to Australia, as reflected in the various references and letters of support that have been put forward on his behalf, as well as the television series and films he has been involved with to date. However, the Tribunal notes that this evidence does not point to the applicant’s work being widely distributed or recognised at the international level.

6. The Tribunal accepts that the applicant is dedicated to film and television, and that he has a genuine commitment to performing as an actor / production assistant and drama teacher in Australia. Nevertheless, for the reasons set out above, the Tribunal finds the evidence that the applicant has an internationally recognised record of exceptional and outstanding achievement at the time of application to be quite limited. This is so even having regard to the principles set out in Bretag’s case.

7. Consequently, having considered the claims and evidence as a whole, both on an individual and cumulative basis, on balance, the Tribunal is not satisfied that the applicant has demonstrated that he has a record of reasonably sustained and excellent achievement as an actor / director / production assistant that is ‘out of the ordinary’. The Tribunal also does not accept that the applicant has received international recognition for his achievements in this field of the arts, or that he has demonstrated extraordinary and remarkable abilities that are superior to others in this field, such that his achievements have received acclaim in more than one country.

8. As a result, the Tribunal is not satisfied that at the time of application in May 2015 the applicant was an eminent actor / director / production assistant who was considered by those in the area to be at the top in that field, and to have an internationally recognised record of exceptional and outstanding achievement.

9. For these reasons, the Tribunal finds that the applicant did not have an ‘internationally recognised record of exceptional and outstanding achievement’ as an actor / director / production assistant. Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 858.212(2)(a) and subclause 858.212(2).

10. Accordingly, given its findings in respect of subclauses 858.212(2) and (4), the Tribunal finds that the applicant does not meet the requirements of subclause 858.212(1) and clause 858.212.

    CONCLUSION

11. On the basis of the above findings, the Tribunal finds that the applicant does not satisfy the criteria for the grant of Subclass 858 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Danica Buljan

    
    

    Member