Silva (Migration)

[2018] AATA 3588

Silva (Migration) [2018] AATA 3588 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jessica Maria Da Conceicao Silva
Mr Francesco Capra

CASE NUMBER:  1702289

DIBP REFERENCE(S):  BCC2016/2251863 BCC2016/2772974 BCC2016/3633612 BCC2017/1200202

MEMBER:Sheridan Lee

DATE:20 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Distinguished Talent (Residence) (class BX) visas for reconsideration, with the direction that the primary applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations

Statement made on 20 August 2018 at 4:07pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Whether the applicant has an internationally recognised record of exceptional and outstanding achievement – Samba dancer – Various high level achievements in the relevant field – Whether the applicant is still prominent – Applicant prominent within their field while in Australia – Applicant would continue to be an asset to the Australian community – Decision remitted with direction

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

CASES
Gaffar v MIMA [2000] FCA 293
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 1 February 2017 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).

2. Mrs Jessica Maria Da Conceicao Silva and her husband, Mr Francesco Capra, applied for the visa on 1 July 2016. The delegate refused to grant the visa on the basis that the primary applicant (the applicant) did not satisfy cl. 858.212(2)(b) of Schedule 2 of the Migration Regulations 1994 as he was not satisfied that the applicant was still prominent in her area of talent.

3. Mrs Silva appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s nominator, Ms Li-Anne Carroll, Director of Latin Productions and Ms Sandra Paula Correia Barbosa, from SanDance Samba Academy and Bamboo Productions.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   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)(b) 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:

   a profession;

   a sport;

   the arts;

   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.

7. The applicant has not asserted that she provided specialised assistance to the Australian Government in matters of security at the time of application on 1 July 2016. Accordingly, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.

8. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(b) of the Regulations; that is, whether the applicant is still prominent in the arts, specifically as a samba dancer.

   Internationally recognised record exceptional and outstanding achievement

9. 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.

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

11. 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].

12. 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].

13. 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.

14. The applicant has applied for the distinguished talent visa on the basis of her achievements as a samba dancer, a style of dance with Afro-Brazilian origin. In her nomination of the applicant for the distinguished talent visa, Ms Carroll provided some background to the applicant’s career as a samba dancer. The applicant trained in Samba no Pe at Imperio de Casa Verde School of Samba, an internationally recognised Samba school and winner of the 2016 Sao Paulo Carnival parade. She went on to train and perform with a range of other groups in Sao Paulo, Rio De Janeiro and New York.

15. The applicant has submitted evidence demonstrating that she performed as a samba dancer in the Carnival of Brazil from 2003 to 2010, including undertaking the coveted role of Drum Queen for three consecutive years (2005 – 2007) and winning Best Samba Dancer (2006) and Carnival Queen (2008). The Sao Paulo Carnival parade takes place in a specially built arena with a capacity of 30,000 spectators and is broadcast on Brazilian national television.

16. A letter of support from Ms Erica Cole, Director of Sambrazil (un-dated), outlines that in Brazilian culture, the Drum Queen, Best Samba Dancer and Carnival Queen are honoured roles, contested by the most qualified dancers. The titles are highly respected within the Samba community.

17. The applicant submitted a professional portfolio to the Department in support of her visa application. The portfolio outlines that following her time performing in the Carnival of Brazil, the applicant commenced work as a professional samba dancer in 2008, when she joined the ‘Brazilian Show Company – an internationally recognised dance company who did success (sic) tour in Saudi Arabia, Cancun, Turkey and other Asian countries’.

18. The applicant has danced as a passista with the Imperatriz Leopoldinese Samba School, in Rio de Janeiro, Brazil, and dance groups in Australia. The applicant supplied evidence of the special role of the passista; an outstanding dancer that performs special steps as a member of a samba school. At the hearing, Mrs Silva gave evidence that being passista involves leading the dance team, organising training and often choreography.

19. On the evidence before it, the Tribunal is satisfied that at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts as a samba dancer. As such, the Tribunal is satisfied that cl.858.212(2)(a)(ii) is met.

    Is the applicant still prominent in the area?

20. Recourse to the departmental decision indicates that the delegate misinterpreted the requirement for the applicant to maintain prominence in her field as a requirement to remain in the top echelons of her field. The delegate noted that he was not satisfied that ‘the applicant’s achievements since moving to Australia are comparable to those which were acquired during her time as a salsa (sic) dancer in Brazil.’

21. The Tribunal considers that applying the ordinary meaning of the term ‘prominent’ does not require that the applicant maintain the level of achievement referred to in relation to 858.212(2)(a), but only that she continue to have a degree of importance or prominence in the area in which that record of achievement has been recognised.

22. Since 2013, the applicant has been the principal Samba dancer for a number of Brazilian cultural events, such as the Perth Brazilian Carnival Party. She has also performed at corporate and private events, including:

    ·the official festival launch of the 2015 G-Fest (Geraldton arts festival)

    ·appearing as Carmen Miranda during the 2013 Brazil Film Festival and dancing at the 10^th Latin American Film Festival in 2014

    ·various events across Perth during the 2014 FIFA World Cup

    ·in May 2016, the applicant was invited to perform for Channel 7 West Media’s “Launch of the 2016 Rio Olympics” Broadcast as the Samba Dance Leader of Esplendor Samba.

23. The applicant has supplied numerous newspaper and magazine articles about Brazilian culture in Western Australia, in which she is photographed or featured.

24. The evidence before the Tribunal demonstrates that the applicant is regularly called upon to perform or speak on behalf of the Brazilian community at cultural events in Perth and Western Australia. Her continued participation in the performance and teaching of samba is indicative of someone who is respected in her field.

25. The Tribunal is satisfied on the totality of the evidence that the applicant was a highly regarded samba dancer who was still prominent in her field at the time of application. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(b).

    Asset to the Australian Community

26. Clause 858.212(2)(c) requires that the applicant would be an asset to the community.

27. At the hearing, the applicant demonstrated an obvious passion for samba and the importance of dance to afro-Brazilian women and the empowerment of women more generally. She explained that she brings this history to her students when she teaches samba.

28. Both Ms Caroll and Ms Barbosa gave evidence of the applicant’s importance to the Western Australian samba community. Ms Caroll outlined that to have someone with the applicant’s background from Brazil is a privilege. She emphasised that there are no other dancers that have achieved all three titles from the Carnival of Brazil. Ms Barbosa gave evidence that the applicant’s authenticity as a samba dancer was essential to the success of her dance company.

29. Amongst a number of letters, the applicant supplied the Department with a letter of support from Mr Wilson Casado of the Brazilian Association of Western Australia, dated 24 July 2016, outlining that the applicant worked as a volunteer for the Brazilian June Festival 2016 and has made an ‘outstanding contribution to the Brazilian Association of Western Australia’.

30. Given the applicant’s active positive contribution over the last several years in Australia, and her commitment to continue if his visa were to be granted, the Tribunal is satisfied that the applicant is, and will continue to be, an asset to the community, therefore cl.858.212(2)(c) is met.

    Obtaining employment, or becoming established independently, in Australia

31. 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.

32. At the time of application, the applicant was employed with the SanDance Company. She also taught Samba no Pe at Juan Rando Dance Academy and was regularly booked to perform at events.

33. At the hearing, the applicant gave evidence that she derives her income entirely from dancing and teaching Samba.

34. The Tribunal is satisfied that the applicant would have no difficulty obtaining employment in Australia through her expertise in samba. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

    Completed approved form 1000

35. 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 Ms Carroll, an Australian citizen, accompanied the application. Ms Carroll attested to the applicant’s record of achievement in the field of the arts. As such cl.858.212(2)(e) is met.

36. 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.

37. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

38. The Tribunal remits the applications for Distinguished Talent (Residence) (class BX) visas for reconsideration, with the direction that the primary applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations.

    Sheridan Lee
    Member