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

1. 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).

2. 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.

3. The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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

6. 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 reputation in relation to the area.

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

8. The Tribunal notes that in determining whether the visa applicant meets cl.858.212(2), all of the stated subclauses must be met.

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

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

11. 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

12. 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.

13. 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.

14. 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, Argentina

    g.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)

15. 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).

16. The applicant commenced her art studies and practice in Argentina, where she also worked as a primary school art teacher from 2005-2007, and a Lecturer’s assistant for the subject Contemporary Art 1 (2003) and a Lecturer’s assistant for the subject semiotics (2005) at the National University of Art, Argentina.  She and her husband moved to the UK and managed and co-owned the Nexus tattoo studio in Lincolnshire from 2009-2012. In oral evidence to the Tribunal at the hearing the applicant indicated that during this period she was not actively engaged in her art practice, except in selected group exhibitions focused on her interest in environmental sustainability.

17. Since coming to Australia in 2013, the applicant has worked as a part-time art teacher in various early learning centres throughout Melbourne, including the Nido Early School, Albert Park and Bambini Early Learning Centre in Brighton, while also undertaking further studies.  These early learning centres use the Reggio Emilia philosophy, which focuses on art having a central role in the learning of pre-school age children.  As part of this role she has taught art to children using a wide variety of materials and techniques, and coordinated a number of exhibitions of their works. She has also compiled a book on the philosophy of the Nido Early School, focused on art teaching to young children from a Reggio Emilia perspective.

18. The initial application was supported by the Nido Early School, on the basis of her work for the company “applying innovative teaching techniques, linking art techniques to historical subjects, report and documenting the process”. This initial application was signed by the then Executive Centre Manager of the Nido Early School in Albert Park, Ms Karen Ptaskenski. Since then various current and former Executive Centre Managers and others in leadership roles at the centres have provided additional letters of support, including:

    a.Anne Gordon, Executive Centre Manager, Nido Early School, Oakleigh East (29 May 2019), attesting to the applicant’s talents as an art educator

    b.Tracey Thornton – Executive Centre Manager Nido Early School, Albert Park (undated), attesting to her valuable contribution as an art educator

    c.Despoina Tsimitra, Curriculum Leader Nido Early School (undated), attesting to the applicant’s focus on sustainability and the environment when working with the children

    d.Andrea Paz Del Rio Figueroa – curriculum leader Nido Early School, attesting to her passion and commitment as an art teacher

    e.Mardi Luff – Campus director – Only about Children – former employer (13 November 2017), attesting to her passion and commitment to embedding art in the curriculum at Nido Early School

    f.Wendy Greblo – Music Teacher – Nido Early School (7 November 2017 & 23 May 2019), who attested to the visa applicant’s commitment to a creative environment for the children.

19. Letters of support have also been received from:

    a.Delia Cancela – Visual artist and co-collaborator (11 November 2017 & 7 July 2018) who attested to the applicant’s interest in pursuing an international career and her talents as an artist, noting the potential for future collaboration.

    b.Quin Chang – academic and friend (16 November 2017), who attests to her passion and commitment to her art

    c.Tantiana Pinedo Rivera – parent at Nido Early School (16 November 2017) who spoke of the applicant’s passion and commitment to teaching art to the children and the positive outcomes of her work

    d.Fernanda Fain – Binda – parent at Nido Early School (20 November 2017) who spoke of the love her children have for the applicant’s art classes and the benefits to her children.

20. In oral evidence before the Tribunal the applicant spoke about the breadth of media and materials she uses in both her own art and her teaching. The applicant provided detailed evidence about her interest in pursuing an art practice focused on sustainable and recycled materials such as coffee grounds and Australian wool, and about her work in 3D printing and multi-media, in which she is starting to build a reputation.  She also spoke of her aspirations to undertake further studies in Australia, including a Graduate Diploma in Art & Research at Monash University as a pathway to a Masters/PhD.  

21. In support of her claims to be an internationally recognised artist, the applicant spoke of her relationship with Delia Cancela, an Argentinian visual artist and designer based in Paris, with whom she has collaborated in the past, and has plans for future collaborations.  The applicant first befriended the artist when she was looking for a mentor to assist her to further her art career internationally, and chose the artist on the basis of her reputation in the world of art using fashion as a medium.  Following the success of her award winning student work in dress design at “Concour International des Jeunes Createurs de Mode” in 2007 which also featured on “Fashion TV”, an international fashion and lifestyle broadcasting television channel, and the scholarship she received to study haute couture techniques, the applicant was keen to pursue her artistic practice in this direction.  The applicant is currently in discussions with Delia Cancela about a future project incorporating textiles and fashion.

22. The applicant has also provided the Tribunal with details about a book she co-authored with her philosophy teacher, Mirta Gaido, which is on sale in book-stores in Buenos Aires and in an Argentinian on-line book store: Librero Online. At the date of this decision the applicant has not been able to establish how many copies of the book has been sold.  The applicant also presented at the hearing a selection of her works, including a piece exhibited as part of the ‘Scarf Festival’ group exhibition at the National Wool Museum in Geelong in 2018, found objects and textile pieces using the technique ‘assemblage’ and a series of digital photographs.  The applicant has also provided the Tribunal with information about her collaboration on a game created by a studio in England in 2014, Kitatus Studios.

    ASSESSMENT AGAINST THE CRITERIA

23. There are various elements within cl.858.212(2) which need to be satisfied.  The first is whether the applicant has an internationally recognised record of exceptional and outstanding achievement in one of the areas set out in cl.858.212(2)(a).  The applicant’s nominated area is in the arts, specifically in ‘Visual Arts’.  The Tribunal has also considered the applicants claims in the area of ‘a profession’, specifically as an art teacher.

    Internationally recognised record of exceptional and outstanding achievement

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

25. However, the Tribunal notes that the concept of ‘record of exceptional and outstanding achievement’ has been the subject of judicial consideration.

26. In particular the Courts have held that the ordinary meaning of ‘record’ does not require the record to 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]

27. The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. In Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’.

28. The Tribunal also notes that since Gaffar’s case was decided the relevant provision now requires the applicant to demonstrate an internationally recognised record of outstanding as well as exceptional achievement. Accordingly, the Tribunal acknowledges that while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

29. In the case of Hatcher v Cohn,[2] when considering the meaning of the word ‘exceptional’, Justice Keiffel opined that:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary.  But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

    [2] Hatcher v Cohn [2004] 139 FCR 425 Keiffel J at [49]-[50]

30. The Tribunal further notes that the Departmental guidelines (Procedures Advice Manual 3, or PAM 3) state, inter alia, the following:

    applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

    …

    Claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.

    A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

    An achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

    …

    an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field.  An applicant should be at the very top of their field.

31. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.  Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the regulations, the Tribunal is required to depart from it.  The Tribunal has taken into account the individual circumstances of the applicant.

32. As noted above, in order to meet the relevant criterion, the applicant must have had an internationally recognised record of exceptional and outstanding achievement in her field at the time of application.  It is expected that these achievements would be recognised internationally, not just nationally.

33. It is apparent from the material before the Tribunal, including oral evidence given at the hearing and further material provided to the Tribunal subsequently, that the applicant is a talented artist whose work has been recognised through a number of awards and scholarships. The Tribunal also notes that since coming to Australia, the applicant has built a career as an early learning art educator and teacher, while pursuing her own art practice in her spare time.

34. The Tribunal also recognises the applicant’s breadth of art practice across a range of genres that has achieved some acclaim, most recently in 3D printing and animation.  The Tribunal further recognises that the time spent in England working with her husband in the tattoo studio and the subsequent breakdown of her marriage and move to Australia impacted on her capacity to pursue her art practice.

35. The Tribunal finds that the applicant is an artist and art teacher with a broad range of skills and talents and accepts her evidence and that of her nominators and supporters in relation to the applicant’s skills and endeavours. The Tribunal acknowledges that the applicant is well respected by many people who have supported her application and that her talents as an artist and art educator are recognised by those she has worked with.

36. However, based on the evidence before the Tribunal the applicant’s achievements were largely attained during her early career in Argentina, and there is little evidence before the Tribunal of international recognition of her work, or that her work is at the top echelons of her field, exceptional or outstanding.  While more recently her work has been featured in some group exhibitions in England and Australia, they were not in internationally recognised exhibitions, locations or galleries, and she has not held a solo exhibition during her career.  Further, while her more recent 3D work has achieved some acclaim in publications, and she is recognised as an emerging talent, she is not yet internationally recognised in this area.

1. The Tribunal has also considered whether the applicant has an internationally recognised record of exceptional and outstanding achievement in her profession as a pre-school art educator.  The Tribunal has considered the documentary evidence before it as well as oral evidence at the hearing about the applicant’s contributions to educating young people at the Nido Early School in Albert Park and Oakleigh East in the Reggio Amelia philosophy where visual arts are at the centre of the curriculum.   The Tribunal notes that the applicant has worked part-time as a pre-school art educator since coming to Melbourne in 2013, and is a well-respected member of the Nido Early School community, with many personal and professional references attesting to her contributions.  However, the Tribunal notes that the applicant has not presented supporting material of the kind that would be expected to meet the requirements of this category, and there is little evidence before the Tribunal of international recognition of her work in this category, or that her work in this category is at the top echelons of her field, exceptional or outstanding.  Further, the Tribunal notes that there is little evidence before the Tribunal of professional achievements in this category beyond the personal and professional references.

2. Accordingly, the Tribunal is not satisfied that at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in either the arts or a profession.  Accordingly the applicant does not meet the requirements of cl.858.212(2)(a).

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

   DECISION

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

   Phoebe Dunn
   Member