Smith (Migration)

[2018] AATA 3978

Smith (Migration) [2018] AATA 3978 (18 September 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rebecca Smith

VISA APPLICANTS:  Mr Mukunda Michael Dewil
Mrs Moira ThisLisle Rose
Master NA letter from the United Talenti Agency tai Rose-Dewil
Master Kishore Rose-Dewil

CASE NUMBER:  1606004

DIBP REFERENCE(S):  BCC2015/2705903

MEMBER:Mr S Norman

DATE:18 September 2018

DATE CORRIGENDUM SIGNED:             23 October 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are to be made to the names of the visa applicants:

VISA APPLICANTS:  Mukunda Michael Dewil

Moira Lisle Rose

Nitai Rose-Dewil

Kishore Rose-Dewil

Mr S Norman
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rebecca Smith

VISA APPLICANTS:  Mr Mukunda Michael Dewil
Mrs Moira ThisLisle Rose
Master NA letter from the United Talenti Agency tai Rose-Dewil
Master Kishore Rose-Dewil

CASE NUMBER:  1606004

DIBP REFERENCE(S):  BCC2015/2705903

MEMBER:Mr S Norman

DATE:18 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Distinguished Talent (Migrant) (Class AL) Subclass 124 visa for reconsideration, with the direction that the principal visa applicant meets the following criteria:

·cl.124.211(2) of Schedule 2 to the Regulations.

Statement made on 18 September 2018 at 9:45am

CATCHWORDS
MIGRATION – Distinguished Talent (Migration) (Class AL) – Subclass 124 (Distinguished Talent) –
internationally recognised record of exceptional and outstanding achievement in the arts – documentation supporting the applicant’s professional contributions provided to the Tribunal – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 124.211

CASES

Baker v The Queen (2004) 223 CLR 513

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 2 March 2016 to refuse to grant the principal visa applicant a Distinguished Talent (Migrant) (Class AL) Subclass 124 visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The principal visa applicant (Mr Mukunda Michael Dewil – hereafter the visa applicant) applied for the visa on 14 September 2015. The delegate refused to grant the visa on the basis that the visa applicant had not met cl.124.211(2) or (4). Based on the subsequent evidence lodged with the Tribunal, I have decided to make a decision on the papers without offering the review applicant (Ms Rebecca Smith) a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the visa applicant met cl.124.211(2) or (4).

5. The visa applicant applied for the Distinguished Talent (Migrant) (class AL) Distinguished Talent (subclass 124) visa on 14 September 2015 (the Distinguished Talent visa). Schedule 2 of the Migration Regulations set out the criteria met for the grant of the Distinguish Talent visa. Relevantly to this case, that included:

   124.21      Criteria to be satisfied at time of application

   [124.211] (1)      The applicant meets the requirements of subclause (2) or (4).

   [124.211] (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.

6. The principal visa applicant applied for the visa based on their achievements in the field of arts, in particular as a feature film director. The visa applicant had been nominated by Australian citizen Rebecca Smith. The policy intention of the distinguished talent program is to provide permanent residence to outstanding individuals, who may not qualify under other visa categories, and where they would make a substantial contribution to the Australian community, including because of their international achievements.

7. In the Department decision record, the delegate noted that an initial assessment of the visa application was completed on 14 December 2015. The visa applicant was then sent a request for additional information, again on 14 December 2015,[1] and provided 28 days to submit additional evidence to support the claims. At the date of the delegate’s decision (being 2 March 2016 – some 2 ½ months later), no response had been received.

   [1] Department – folio 72.

8. The delegate then stated that based on the evidence before them, the visa applicant had not met cl.124.211(a), (d) & (e). Further, in order to meet cl.124.211(2) all of the stated subclauses cl.124.211(2)(a)-(f) must be met. As the visa applicant had not satisfied cl.124.211(a), (d) & (e), the delegate did not consider the remaining subclauses, being cl.124.211(b), (c) & (f).

9. The Tribunal understands that in an assessment of whether an applicant satisfies cl.124.211(2), it must consider the reasoning of the Court in Gaffar v MIMA [2000] FCA 293, where the Court stated that an applicant need not be unique amongst his/her peers but should have a demonstrable record of achievement that is out of the ordinary. The Tribunal is therefore, to apply a 'liberal' test rather than determining whether an applicant is unique amongst his peers.

10. Further, in the decision of Brennan & Dawson JJ in Griffiths v The Queen[1989] HCA 39; (1989) 167 CLR 372; their Honors considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another provision only if it determined the circumstances justified that course. They said:

    10…Although no one of [the identified] factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.

11. Callinan J in Baker v The Queen (2004) 223 CLR 513, [2004] HCA 45, also referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208:

    173…We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual, or special or common. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

12. The Tribunal may also consider the finding of the Full bench of Fair Work Australia in Berry v Zintel Communications Pty Ltd [2011] FWA 3198 (30 May 2011):

    13. In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together is seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the pleural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

13. Accordingly, the Tribunal should have regard to all of the circumstances of the applicant's experience and career as a feature film director. The evidence lodged with the Tribunal included:

    ·     an article from the Australian newspaper dated 26 March 2016 indicating that the review applicant was the editor of Inside Film[2]

    [2] Tribunal – from folio 12.

    ·     a letter from Arclight Films dated 7 March 2016, indicating that the review applicant was the executive producer of Animal Kingdom, being the winner of the Sundance Film Festival’s Dramatic World Cinema Jury Prize; and prior to that she was the Australasian bureau chief of the Hollywood Reporter and the editor of Inside Film Magazine in Australia [3]

    [3] Tribunal – folio 13 (reverse side).

    ·     a letter dated 21 April 2016 from the review applicant (Rebecca Smith) advising inter alia that due to an Internet server issue the visa applicant did not receive a request from the Department to provide further information or evidence, and then providing evidence of the applicant’s international reputation [4]

    [4] Tribunal – from folio 9.

    ·     a statement dated 21 April 2016 from the visa applicant[5]

    [5] Tribunal – folio 10.

    ·     a letter dated 5 April 2016 from Screen Producers Australia, stating the visa applicant had an ‘extensive track record as a director’[6]

    [6] Tribunal – folio 13.

    ·     an undated letter from the United Talent Agency, indicating the visa applicant “was identified by the agency some years ago as a filmmaker of growing international influence and exceptional talent and [they had] developed a strong working relationship together, actively developing his film projects around the world”[7]

    ·     an undated letter from the South African Film and Television Awards (SAFTAs) stating the visa applicant’s debut feature film ‘Retribution’, was nominated for five SAFTA awards[8] 

    ·     a letter dated 4 April 2016 from the Vancouver South African Film Festival stating the film Retribution held its North American premiere at the Vancouver South African Film Festival in 2012[9]

    ·     a letter dated 6 March 2016 from Occupant Entertainment, California, indicating they were producing the visa applicant’s new film entitled Drop[10]

    ·     an official invitation for the visa applicant’s film Retribution, to be shown at the Brussels International Festival of Fantasy, Thriller and Science Fiction Films in April 2011[11]

    ·     a letter from the K5 International company stating the visa applicant’s film Vehicle 19 was presented to the finished film market at the Cannes Film Festival in 2012[12]

    ·     an undated letter from United Talent Agency, California, indicating the visa applicant had the following films set for production - Drop, Kalahari, Shadow of the Sun, Collide[13]

    ·     an undated letter from the Mutual Film Company indicating the H2 L Media Group, together with Mutual Films, were in development to produce the film Kalahari with the visa applicant as director, and that they were looking at a “late 2016 shoot date with a budget of approximately $10 million”[14]

    ·     a letter from Zero Gravity Management dated 23 March 2016 indicating they had entered into an agreement with the visa applicant to produce his film Collide[15]

    ·     a letter dated 11 March 2016, from Mar-Key Pictures/Olympus Pictures advising they had commissioned the visa applicant to write Shadow of the Sun[16]

    [7] Tribunal – folio 14.

    [8] Tribunal – folio 15 (reverse side).

    [9] Tribunal – folio 15.

    [10] Tribunal – folio 16 (reverse side).

    [11] Tribunal – folio 16.

    [12] Tribunal – folio 17 (reverse side).

    [13] Tribunal – folio 18 (reverse side).

    [14] Tribunal – folio 19 (reverse side).

    [15] Tribunal – folio 19.

    [16] Tribunal – folio 20 (reverse side).

14. Based on the above evidence (lodged with the Department and the Tribunal), I am satisfied the 47 year old visa applicant has an internationally recognised record of exceptional and outstanding achievement in the arts; that he was prominent in the area at the time of the visa application; that he would be an asset to the Australian community; that he would have no difficulty in obtaining employment, or in becoming established independently in Australia in the area; and that a completed approved form 1000[17] had been lodged.  

    [17] Department – from folio 27.

15. Accordingly, the Tribunal is satisfied the applicant has satisfied the time of application criteria in cl.124.211(2).

    decision

16. The Tribunal remits the application for a Distinguished Talent (Migrant) (Class AL) Subclass 124 visa for reconsideration, with the direction that the principal visa applicant meets the following criteria:

    ·cl.124.211(2) of Schedule 2 to the Regulations.

    Mr S Norman
    Member