Lee (Migration)

[2018] AATA 4197

Lee (Migration) [2018] AATA 4197 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sungpil Lee

CASE NUMBER:  1716901

DIBP REFERENCE(S):  BCC2016/2189161

MEMBER:Sheridan Lee

DATE:13 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations

Statement made on 13 September 2018 at 11:27am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of achievement – clarinet – voluminous record of achievements – emerging talent – achievements in international competition – contribution to the church – letter of recommendation – current employment – decision under review remitted

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 MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Zhang v MIMA [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 20 July 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 28 June 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).

3. The delegate acknowledged ‘the applicant’s academic and professional achievements along with some noteworthy success at international competitions,’ however felt that the applicant’s body of work was ‘more reflective of an emerging talent, who over time may develop an internationally recognised record of exceptional and outstanding achievement’.

4. The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Aunt, Ms Shinduk Kwoun and Uncle, Mr Robin Yang.

5. The applicant was nominated for the visa by Australian citizen, Mr Gary McPherson, Professor in Music at the Melbourne Conservatorium of Music. Mr McPherson did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. 

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. The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and therefore 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.

   (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.

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

11. The applicant’s claim hinges on whether he can satisfy cl.858.212(2)(a)(iii) of Schedule 2 to the Regulations. 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 he lodged his visa application on 28 June 2016. The applicant’s achievements in his 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.

12. The applicant is a clarinet and piano player and has been awarded a number of prizes for musical performance, particularly for clarinet. He provided the Department and Tribunal with copies of the following certificates and acknowledgements, all dated before the applicant lodged his visa application:

    a.First Prize, Clarinet Solo, 16 Years and Under, Adelaide Eisteddfod Society, 28 July 2007

    b.First Prize, Senior Piano, 16 Years and Under, Adelaide Eisteddfod Society, 18 August 2007

    c.First Prize, Isobel Carter Award – Clarinet, The Clarinet and Saxaphone Society of Victoria Inc., 2008 Performance Competition

    d.Encouragement Award, Concerto for Woodwind or Brass, Dandenong Festival of Music and Art for Youth, 30 April 2008

    e.Honourable Mention, Woodwind Solo 25 Years and Under, Dandenong Festival of Music and Art for Youth, 30 April 2008

    f.Certificate of Participation, Top Class, VCE Season of Excellence 2009

    g.Finalist, 22^nd Youth Concerto Competition 2009, Preston Symphony Orchestra

    h.First Prize, Woodwind Solo 25 Years and Under, Dandenong Festival of Music and Art for Youth, 7 May 2009

    i.Honourable Mention, Solo Woodwinds, Manningham Eisteddfod Society Incorporated, 8 August 2009

    j.First Prize, Hugo Stocking Award, The Clarinet and Saxophone Society of Victoria Inc., 2009 Performance Competition

    k.First Prize, Special Instrumental Open Winners Award, Ringwood Eisteddfod, 18 July 2009

    l.First Prize, Solo Woodwind, 18 Years and Under, Dandenong Festival of Music and Art for Youth, 28 April 2009

    m.Second Prize, Concerto for Woodwind or Brass, 25 Years or Under, Dandenong Festival of Music and Art for Youth, 7 May 2009

    n.First Place, 18 years and under Wind Section, Herbert N. Davis Memorial Award, 2009

    o.First Prize, Open Woodwind Solo, South Eastern Arts Festival, 13 April 2010

    p.First Prize, Orchestral Wind Solo, Boroondara, 27 May 2010

    q.Second Prize, Woodwind, Manningham Eisteddfod Society Incorporated, 7 August 2010

    r.Third Place, Piano and Instrumental, Australian Concerto Vocal Competition, 8 August 2010

    s.First Prize, Wind/Brass Solo, 21 Years and Under, Waverly Music Eisteddfod, August 2010

    t.Thank you for the applicant’s contribution to ‘The Charity Concert for sharing hope with Northern Neighbors’ held on 2 June 2012 from the President of the Byulbit Foundation

    u.Second Place, Open Section, Australian Concerto Vocal Competition, 25 July 2012

    v.Review of the Australian Concerto and Vocal Competition Gala by David Salisbury in Artgaze, published on 1 September 2013. Mr Salisbury outlines that the applicant ‘displayed masterful control over extremely difficult and technical passages with a rich warm tone that flowed well into the slower section of the piece’.

    w.An invitation to perform as a qualified contestant in the 2013 Beijing International Music Competition

    x.Letters of congratulations for winning the Professor Jack Richards International Woodwind/Brass/Percussion Award at the 2013 Gisborne International Music Competition from Professor Jack Richards and Natalia Lomeiko and David Thomas (Jurors)

    y.Certificate of Achievement to certify participation in the Clarinet Open Division competition in the Singapore Woodwind Festival, 28 June 2014

    z.Certificate of Participation in the National Semi-Final Round of the Australian Youth Classical Music Competition, 20 July 2014

    aa.Finalist, 3MBS Young Performer Award 2014, 26 October 2014

    bb.Third Prize, CLASAX Performance Competition, Buffet Crampon 190^th Anniversary Clarinet Competition, 13 June 2015

13. Brochures and flyers were provided for context for a number of the above performances, along with other non-competition performances given by the applicant. Recordings of the applicant playing with the Fidelio Quartet and the applicant’s PhD project on Isang Yun were also provided as samples of his work.

14. The applicant made a number of academic achievements as a musician before the date of his visa application:

    a.Liceniate in Music, Australia (LMusA), awarded by the Australian Music Examinations Board in the subject of Clarinet, 2008

    b.Associate in Music, Australia (AMusA), awarded by the Australian Music Examinations Board in the subject of Clarinet, 2008

    c.Bachelor of Music (Honours), awarded by the University of Melbourne on 14 March 2013

    d.Clarinet Recital, awarded 225 credits at Level 7 Diploma in Music Performance, awarded by Trinity College London, 28 August 2013

    e.Masters of Music (Music Performance), awarded by the University of Melbourne on 13 December 2014 – undertaken with a scholarship

15. In 2014, the applicant commenced a PhD in Music Performance at the University of Melbourne. At the hearing, the applicant gave evidence that his studies were nearing completion, with an expected graduation in late 2018.

16. Letters of support were provided by a number of references, including the Reverand Heeyoung Lim from the Korean Church of Melbourne, the applicant’s principal PhD supervisor, Dr Ken Murray, Head of Woodwind and Performance Studies at the Melbourne Conservatorium of Music, Derek Jones and Principal Clarinetist of the Melbourne Symphony Orchestra, David Thomas.

    Internationally recognised record of exceptional and outstanding achievement

17. 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.

18. However, the Tribunal notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration.

19. 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.[1]

    [1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].

20. 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'.[2]

    [2] Gaffar v MIMA [2000] FCA 293 at [20].

21. 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.

22. 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.[3]

    [3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

23. The applicant has clearly demonstrated a voluminous record of achievements. However, the question for consideration is whether those achievements represent an internationally recognised record of exceptional and outstanding achievement.

24. The Tribunal notes that the majority of the applicant’s success in competition has been at localised Eisteddfods at the amateur or youth level. There are however a number of notable exceptions, such as qualifying as a competitor in the 6th Beijing International Music Competition, a semi-finalist and International Wind Player Award Winner in the Gisborne International Music Competition in 2013, securing a place as a semi-finalist in the Australian Youth Classical Music Competition from 2012 to 2015, and semi-finalist in the Clarinet Division of the Singapore Woodwind Festival 2014.

25. While certificates were not provided, the applicant’s Aunt outlined in a written statement provided to the Department with the visa application (undated) that the applicant was selected to compete in the Leos Janacek International Competition in the Czech Republic, the Aeolus International Competition for Wind Instruments in Germany and the Lancelot International Clarinet Competition in Japan (although he did not attend the event). The Tribunal accepts this evidence to be true.

26. In his nomination statement, Mr McPherson listed the applicant’s numerous achievements, which have also been listed above. He then described the applicant as prominent and working towards a professional career as a clarinet player. He outlined the applicant’s intention to release a CD of composer Isang Yun’s works for clarinet, along with work by other composers. Finally, he concluded that the applicant ‘has great potential for contributing to the Australian community, broadening the musical scope in the research field, strengthening classical music in Australia’.

27. The applicant has performed with the Melbourne University Orchestra, the Preston Symphony Orchestra, the Whitehorse Orchestra and has been invited to perform with the Australian National Academy of Music Orchestra. The applicant has also played as a guest for the Melbourne Symphony Orchestra as part of their music in schools program. However, the applicant has limited experience performing with professional orchestras and has not made any professional recordings for release. The applicant does not generate a living as a performing musician, however he has taught music at Huntingtower School since 2012 and is currently employed as a tutor at Melbourne University.

28. At the hearing, the applicant gave evidence that his opportunities to perform with professional orchestras and compete in international competitions have been restricted by his study commitments. In particular, the applicant noted that he is an international student and received a scholarship for tuition. The Tribunal raised concern with the applicant about the requirement to demonstrate that he had an internationally recognised record of exceptional and outstanding achievement at the time of application, as opposed to demonstrating the capacity to have one if free from constraints.

29. Ms Kwoun gave oral evidence that the applicant is a top student with amazing technique. She explained that the applicant has lived with her since arriving in Australia and she has travelled with the applicant to many of his competitions. The applicant has achieved one of the highest scores in his exams for clarinet and has also been selected as a soloist, which is not common for a clarinettist, who is often overlooked for piano or strings. Ms Kwuon reiterated that since the applicant is an international student, he must commit to full-time study. This makes it difficult for the applicant to travel overseas to perform or compete.

30. Mr Robin Yang further gave oral evidence that to be internationally recognised relies on having the opportunity to be so. This would be easier to demonstrate for someone without the applicant’s constraints.

31. The Tribunal has considered the applicant’s submissions, oral evidence and letters of support and considers that the applicant is at the beginning of his career as a musician. The Tribunal accepts that the applicant’s ability to attain an internationally recognised record of exceptional and outstanding achievement has been constrained by his study circumstances and youth. The Tribunal also notes that given the nature of music competitions, they are inherently aimed at emerging talent as opposed to established artists with successful careers.

32. Nevertheless, as noted, the applicant is not required to possess a lengthy list of achievements at the requisite level and the Tribunal is satisfied that his achievements in international competition in aggregate with his professional engagements with prestigious national orchestral groups are out of the ordinary in his chosen area and are sufficient to meet the requirements of cl.858.212(2)(a).

33. As such, the Tribunal finds that the applicant had an internationally recognised record of exceptional and outstanding achievement at the time of application.

    Is the applicant still prominent in the area?

34. Given the contemporaneous nature of the applicant’s achievements in satisfaction of cl.858.212(2)(a), the Tribunal is satisfied that he has also demonstrated prominence in the area at the time of application.

35. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(b).

    Asset to the Australian Community

36. Clause 858.212(2)(c) requires that the applicant would be an asset to the Australian community. The Tribunal has before it evidence of the applicant’s involvement with the Korean Church of Melbourne, including a letter of recommendation dated 21 June 2016, where he has worked as a Sunday school teacher and has performed at charity events.

37. The Tribunal has a letter of recommendation from Dr Ken Murray, Senior Lecturer at the Melbourne Conservatorium of Music and principle supervisor of the applicant’s PhD, outlining the ground breaking nature of the applicant’s PhD research. The Tribunal accepts that the applicant has much to offer the Australian community as an academic, artist and as a teacher. Given the above, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(c).

    Obtaining employment, or becoming established independently, in Australia

38. Clause 858.212(2)(d) requires the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area. As previously outlined, the applicant has been employed at Huntingtower School as a music teacher since 2012 and is currently employed as a music tutor at Melbourne University. The Tribunal is satisfied that the applicant will have no difficulty continuing to find employment within the music industry.

1. The Tribunal also accepts that the applicant’s capacity to work as a paid musician will be improved upon completion of study and attainment of permanent residency in Australia. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

   Completed approved form 1000

2. The final subclause within cl.858.212 that must be met is cl.858.212(2)(e). This subclause requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed approved form 1000 signed by Australian citizen Professor Gary McPherson. The University of Melbourne website describes Professor McPherson as a multi-faceted music professional whose career includes performances as a trumpeter and conductor with various ensembles throughout Australia, three major longitudinal research studies involving musicians in Australia and the United States, and over 30 years as an academic in Universities teaching music education, research techniques, music psychology, performance science, music psychology, and musicianship.

3. Given the above, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(e). The Tribunal also finds that the criterion in cl.858.212(2)(f) does not apply as the applicant was over 18 and under 55 at the time of application.

4. As the applicant meets all of the applicable requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

   DECISION

5. The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations.

   Sheridan Lee
   Member