Perrelli (Migration) - [2019] AATA 3392

Perrelli (Migration) [2019] AATA 3392 (22 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Noelia Debora Perrelli
CASE NUMBER:  1820017
DIBP REFERENCE(S):  BCC2017/4562169 BCC2018/145520
MEMBER:Phoebe Dunn
DATE:22 July 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 22 July 2019 at 1:10pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – visual arts – awards and scholarships – group exhibitions in England and Australia – emerging talent in 3D work – art teacher – pre-school art educator – 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
Zhang v MIMA [2007] FMCA 664

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 June 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).
The visa applicant applied for the visa on 1 December 2017. The delegate refused to grant the visa on the basis that the applicant did not meet subclause 858.212(2)(a), as the applicant had not demonstrated that the applicant’s body of work represented an internationally recognised record of exceptional and outstanding achievement.
The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant made an application for a Distinguished Talent visa on 1 December 2017. The applicant made the visa application on the basis of her achievements in the arts, specifically visual arts.
Relevant law
The issue in dispute in this review is whether the visa applicant meets the requirements of cl.858.212(1), which requires the applicant to meet the provisions of subclause (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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perrelli (Migration)

Details

AGLC: Perrelli (Migration) [2019] AATA 3392
Case: [2019] AATA 3392
Decision Date: 22 July 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant, Ms Perrelli, a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a visual artist, was nominated by her employer, Nido Early School, where she works as a pre-school art educator.

The primary legal issue before the Tribunal was whether the applicant had demonstrated an internationally recognised record of exceptional and outstanding achievement in the field of visual arts, as required by the visa criteria. In particular, the Tribunal considered whether her achievements, including academic qualifications, awards, scholarships, and participation in group exhibitions, met the threshold for distinguished talent, and whether her role as an art educator could be considered a "profession" for the purposes of the visa.

The Tribunal found that while the applicant possessed relevant academic qualifications and had participated in a number of group exhibitions and received some awards, these did not establish an internationally recognised record of exceptional and outstanding achievement in the field of visual arts. The Tribunal noted that many of the exhibitions were in Argentina and the UK, and that the applicant was described as an "emerging talent" in some contexts. Furthermore, the Tribunal determined that the applicant's role as a pre-school art educator, while valuable, did not satisfy the requirement of being within a "profession" for the purposes of the visa subclass.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Distinguished Talent (Residence) (Class BX) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On the basis that the applicant was nominated for the Subclass 858 Distinguished talent visa by the Nido Early School where the applicant works as a pre-school art educator, the Tribunal has also had regard to whether the applicant’s claims come within cl.858.212(2)(a)(i) as belonging to ‘a profession’ for the purposes of cl.858.212(2)(a), specifically the profession of art educator.Claims and evidence The Tribunal has had regard to submissions and supporting evidence provided to the Department in support of the applicant, together with an updated submission and additional documentation provided at review. The submissions contain details of Ms Perrelli’s career as a visual artist, including her academic qualifications, work experience and breadth of practice across a range of contemporary visual art genres. The submissions also contain details of Ms Perelli’s achievements at the date of the application including details of awards received, group exhibitions, reviews, publications, current projects, and information about her work in the field of art education for pre-school children in Australia. The applicant is a visual artist who practices across a range of genres. She has a Bachelor Degree of Visual Arts from the National University of Art in Argentina, together with qualifications as an Art Teacher (primary, secondary and adult levels) from the same institution. She has also done a number of visual arts related post graduate courses including:a.Fashion Design (Argentina)b.Education for a Sustainable Development (Argentina)c.Advanced Diploma of Screen and Media, majoring in game design (Australia),as well as a number of short courses and workshops in photography, silk screening and textiles, scenery design, fashion and art in Australia, the UK and Argentina. The applicant has participated in a number of group exhibitions, largely in Argentina and the UK, including:a.‘Emitex (textile industry exhibition) for EAMode, Argentina (2007)b.Group Exhibition at Argentine Centre for Textile Art, Argentina (2009),c.Group Exhibtiion at 20-21 Art Gallery UK (2009)d.Public installation on the woods, North Lincolnshire, UK (2010)e.Lecturer’s assistant’s exhibition at the Open Gallery “Prilidiano Pueyrredon”, Argentina (2006)f.Group exhibition at the Gallery of the Nations, Argentinag.Group exhibition at the IV annual salon “End of Millenia”, Alfa Space, Argentina (2001)h.Group exhibition at the IUNA Theatre, (Stage Scenery), Argentina (1999)i.Group exhibition and Winning Artwork at the National School of Fine Arts “Rogelio Yrurtia” annual exhibition, (category: Sculpture), Argentina (1994) The applicant has also received the following awards and notable achievements:a.Co-author of a book ‘Signo-Discurso’, focused on semiotics, art, culture and philosophy (2007)b.Award winning design at “Concours International de Jeunes Creatures de Mode”, Argentina (a fashion exhibition funded by the French government) (2007)c.Awarded a one year scholarship for the course “Haute Couture techniques” at the Argentinian School of Fashion, Argentina (2008)d.Review of experimental video in 3Dprint.com (2015).

Decision

Reasons for decision

Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.Phoebe DunnMember

Ratio Decidendi

Legal Principle Established

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