The Salsa Foundation (Migration)

[2020] AATA 2529

The Salsa Foundation (Migration) [2020] AATA 2529 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  The Salsa Foundation Pty Ltd

VISA APPLICANT:  Ms Eglantine De Oliveira

CASE NUMBER:  1730139

DIBP REFERENCE(S):  BCC2017/827981

MEMBER:Amanda Mendes Da Costa

DATE:20 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Distinguished Talent (Migrant) (Class AL) visa for reconsideration, with the direction that the visa applicant meets the criteria in cl.124.211 of Schedule 2 to the Regulations.

Statement made on 20 March 2020 at 9:40am

CATCHWORDS
MIGRATION – Distinguished Talent (Migrant) (Class AL) – Subclass 124 – substantial record of achievements – prominent in the area of Brazilian Zouk – evidence provided – nominator is one of the most highly respected Latin dance school in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 338, 347,
Migration Regulations 1994, Schedule 2, cl 124.211

CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 22 September 2017, to refuse to grant a Distinguished Talent (Migrant) (Class AL) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(5) of the Act.

2. The visa applicant applied for the visa on 2 March 2017. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.124.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because she was not satisfied that the visa applicant had an internationally recognised record of exceptional and outstanding achievement in the area of the arts, namely Brazilian Zouk dance.

3. The review application was lodged with the Tribunal on 30 November 2017. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b).  In the present case, the review application was made by Mr Walter Villagonzalo, on behalf of the nominator, The Salsa Foundation Pty Ltd.

4. Mr Walter Villagonzalo, the sole director of the The Salsa Foundation Pty Ltd (the nominator) and the visa applicant appeared before the Tribunal at the hearing on 22 January 2020 to give evidence and present arguments.

5. At the hearing, the Tribunal raised with Mr Villegonzalo the issue that the person who is entitled to apply for review of the delegate’s decision is the nominator i.e. The Salsa Foundation Pty Ltd.  Mr Villegonzalo explained that he did not have the advice of a migration agent when he filled out the review application form and mistakenly listed himself as the review applicant instead of the nominating company.  He always intended to make the application on behalf of the nominator.  The Tribunal accepts this evidence.

6. Given that Mr Villegonzalo is the sole director of the nominator, was not represented by a registered migration agent when he completed the application for review, and intended to make the review application on behalf of the nominator, the Tribunal is satisfied that the application for review has been properly made under s.347 of the Act and the review applicant is the nominator, The Salsa Foundation Pty Ltd.  Accordingly it follows that the Tribunal does have jurisdiction in this matter.

7. The documents provided to the Tribunal for the purpose of the review include the following:

   ·explanation of Brazilian Zouk;

   ·curriculum vitae and profile of the visa applicant;

   ·explanation of Brazilian Zouk;

   ·list of international events at which the visa applicant has taught or performed;

   ·flyers for international events at which the visa applicant has performed;

   ·information regarding the history and role of the nominator;

   ·reference, Karen Rutherford, dated 15 November 2016 and 25 October 2018;

   ·reference, Jai Villagonzalo, undated;

   ·reference, SuTieng Cubis, undated;

   ·reference, James Quinn-Hawtin, dated 31 October 2017;

   ·reference, Jane Streeter, dated 8 November 2017;

   ·reference, Jean-Luc Lambs, dated 25 October 2017;

   ·reference, Hayley Lively and Miguel Brillant, undated;

   ·reference, Sarl Aventure Studio Latino, undated;

   ·reference, Anoprieva Elena, undated;

   ·reference, Jaxen Tan, dated 8 November 2017; and

   ·reference, Krisztina Balazs, undated.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Distinguished Talent (Migrant) (Class AL) visa is a permanent visa for a person who has 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.  There is nothing before the Tribunal to suggest that the applicants have provided specialised assistance to the Australian Government on matters of security.

10. The criteria for a Subclass 124 visa are set out in Part 124 of Schedule 2 to the Regulations. Relevantly, cl.124.211(2) requires the applicant to demonstrate that at the time of application, he or she:

    (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 an approved form 1000; and

    (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.

11. In this case, the Tribunal is satisfied that the applicant (who was born on 9 May 1985) was over 18 and under 55 years at the time the visa application was lodged on 2 March 2017.  Accordingly, the requirement of cl.124.211(2)(f) is not applicable.

12. The Tribunal notes that the completed approved form 1000 dated 11 November 2016 and signed by the nominator was lodged with the application.  The Tribunal is satisfied that the nominator is an Australian organisation which has a national reputation in relation to the area and therefore cl.124.211(2)(e) is met.

13. The issue in the present case is whether the visa applicant meets the requirements in cl.124.211(2)(a). In determining this issue, the Tribunal has had regard to all of the relevant evidence before it, including the supporting documents and submissions on the Department’s and the Tribunal’s files, as well as the oral and written evidence provided at the hearing, which the Tribunal sets out as follows.

14. The visa applicant applied for the distinguished talent visa on the basis of her skills as a dancer, teacher, performer and choreographer renowned around the world for arranging Brazilian dance styles, particularly Brazilian Zouk.

15. The Tribunal notes that Brazilian Zouk is a partner dance originating from the Brazilian dance Lambada.  The dance is now combined with a variety of music, including Caribbean Zouk music, which is how the dance became to be known as Zouk.

    Written references

16. Karen Rutherford is the founder and director of the Kmotion Dance Studio in Canberra, ACT, which has been operating since 2006.  She attests to the popularity of the visa applicant’s style of Zouk with the studio’s students and her reputation worldwide as the choice of dance partner for some of best male dances in the area of Latin and Brazilian Zouk dance.  Ms Rutherford also attests to the demand for the visa applicant’s participation at festivals “everywhere”.

17. SuTieng Cubis is the owner of I Heart Zouk, an organiser of Brazilian and Latin dance classes and events in Sydney, NSW.  Ms Cubis describes the visa applicant as an internationally renowned dance artist who has travelled the world teaching and performing dance on a professional basis and is frequently requested by dance organisations for festivals and workshops globally. In Ms Cubis’ opinion, the visa applicant brings her skills and knowledge to dance in a unique, creative and positive way.

18. James Quinn-Hawtin is the owner of ‘Dance Culture’, a Latin dance school in Brisbane.  In his opinion, the visa applicant has established herself as an icon within the global Latin dancing community and a person who is considered by Latin dance professionals and enthusiasts to one of the key dance instructors spearheading the evolution of the Brazilian dance style known as Zouk-Lambada.  Mr Quinn-Hawtin further describes the visa applicant as “one of the few masters, worldwide, responsible for its growing popularity.”

19. Jane Streeter is a committee member of ‘Latin Madness’, a not-for-profit club which offers classes, workshops and parties in Latin dance.  These activities are organised by both local volunteers and visiting professional dancers.

20. In Ms Streeter’s opinion, the visa applicant is held in high esteem by the international Latin dancing community and is one of the world’s top professional dancers in the styles of Latin  Dancing, including Brazilian Zouk.  She considers the visa applicant would be a drawcard for local, interstate and international dancers to attend her classes and events given her excellence as a teacher.

21. Jean-Luc Lambs is an organiser of Latin dance events in Brisbane and other locations in Australia.  He attests to the visa applicant’s reputation as a world renowned artist in the field of Latin dance who has a considerable amount of knowledge to share with the Latin dance community.  In Mr Lambs’ opinion, the visa applicant’s knowledge and talent is in high demand in Australia.

22. Hayley Lively and Miguel Brillant are Brazilian Zouk, Urban Kiz and Bachata dance teachers and the organisers of the Canada ZouKizBachata Convention, which was held in Toronto in November 2017.  The Convention involved three days of classes, competitions, social activities and performances in dance styles including Brazilian Zouk, Kizomba, Urban Kiz and Bachata.  The visa applicant was featured as a Brazilian Zouk dancer at this Convention.

23. Ms Lively and Mr Brillant describe the applicant as a professional and dedicated teacher of Brazilian Zouk whose presence at their event in 2017 attracted a great number of Brazilian Zouk dancers from Canada and the United States who were interested in learning the visa applicant’s techniques.

24. In the opinion of Ms Lively and Mr Brillant, the visa applicant’s techniques and method of teaching are valuable in preventing injury to students who are likely to pay close attention to the techniques taught by a ‘master’ like the visa applicant.

25. Ecole Studio Latino Dance is a prominent dance studio located in Lattes, France.  The reference is provided by the director (unnamed) of the studio who attests to the visa applicant working with the studio as a ‘resident’.  The time-frame for this involvement by the visa applicant is not stated.  The director describes the visa applicant as one of the most talented teachers and choreographers of Latin dance in the world whose ‘worldwide fame’ is a serious economic bonus for any studio which engaged her to teach its students.

26. Elena Anoprieva is the owner of AmoRio Project; a Moscow-based dance company located in Russia which organises dances classes, productions, events and workshops in Moscow.  She describes each of these events in which the visa applicant participated as attracting large numbers of students.  This was due to the visa applicant’s reputation as an excellent performer, instructor and choreographer. 

27. In Ms Anoprieva’s opinion, the visa applicant has inspired many dancers around the world with her brilliant technique and innovative ability to develop “wellness through dance”.

28. Jaxen Tan is the principal and Chief Instructor of the Rhythm Identity Dance Academy located in Kuala Lumpur, Malaysia.  He employed the visa applicant to teach and perform at a Brazilian Zouk-Lambada dance event in Malaysia, which he organised in 2014. 

29. In Mr Tan’s opinion, the visa applicant’s workshops are sought after by many participants and her classes were meticulously planned and detailed, and the visa applicant is very strong in the fundamentals of dance.  Mr Tan considered that as a dancer, the visa applicant demonstrates a strong grasp of technique and she is a versatile and professional dancer.

30. Krisztina Balazs is the owner of the KriZouk dance school in Zurich, Switzerland.  She attests to the visa applicant being a ‘headliner’ at events organised by the dance school from 2014 to 2017.  In Ms Balazs’ opinion, the visa applicant is a professional, dedicated and talented artist who is one of the best artists in her field.

    Evidence of the visa applicant

31. The visa applicant is a national of Brazil who has more than eight years of experience as a teacher in various fields of Latin dance and who specialises in Brazilian Zouk.  She commenced training as a dancer at the age of 12 years with Capoeira and at the age of 14 years started jazz and belly dancing classes and at age 15 commenced entering dance competitions.

32. When the visa applicant was 23 years of age, she joined the Jaime Aroxa dance school in Brazil, one of the foremost dance academies in Brazil.  The visa applicant was trained there in Zouk and eight other styles of Latin dance.[1]  The visa applicant subsequently became involved in performing for dance companies, including Jaime Aproxa and Stiletto, where she developed her knowledge of stage craft and choreography.  She also commenced practising ballet which gave her knowledge in body structure and development.

    [1] Argentine, Tango, Samba de Gafiera, Samba Rock, Forro, Bolero, Rock Soltinho, Salsa and Dertanejo.

33. At the age of 26 years, the visa applicant became a Latin dance teacher.  Prior to her work as a dance teacher, she was a Yoga and Pilates instructor and fitness/dance teacher.  She has also studied Human Resource Management (2005 to 2007) and Human Sciences (2009 to 2013).

34. During the course of her work as a dance instructor, the visa applicant has conducted classes and participated in workshops in Brazil and worldwide.  She has also participated with other professional Zouk dancers in creating a new form of Zouk, introducing new movements and inserting movements from other dance styles and widening the range of music styles used to accompany Zouk.  These changes have made Zouk a more sensual dance and have influenced the development of the Zouk dance scene internationally.

35. Some of the dance elements contributed by the visa application include the increased number of movements by women; increased creativity; enhanced musicality; a more playful and creative style; focus on aesthetics and the quality of movement; sharp moves; more sensual movements and the incorporation in to Zouk of other dance styles such as waacking, vogue, hip hop and Argentine Tango.

36. As noted by the delegate in her decision, social media sites (including YouTube) demonstrate the visa applicant’s promotional work overseas including her instruction at various dance schools.  The visa applicant has further supplied the Tribunal with numerous advertisements for and photographs of competitions, demonstrations and other dance events at which the visa applicant has participated, competed or taught.  These events have taken place in Europe, South America, Asia and Australia.

37. These events include:

    ·World Zouk Congress – Sao Paulo, Brazil.

    ·Corpo Carioca Congress – St Petersburg.

    ·Bachata Si – Prague, Czech Republic.

    ·Zurich Zouk Congress – Switzerland.

    ·International Casa de Ritmo Zouk Festival – Kiev, Ukraine.

    ·Zouk Austria Congress.

    ·Beautiful Zouk – Sao Paolo Brazil.

    ·Zouk SEA – Kuala Lumpur, Malaysia.

    ·Bachaturo – Warsaw, Poland.

    ·Dubai Latin Festival.

    ·Singapore Latin Festival.

    ·Zouk Mexico (Tijuana).

    ·Chicago Souk Festival – United States of America.

    ·Brisbane Zouk and Latin Dance Festival.

    ·Zouk Day Sao Paulo – Brazil.

38. The visa applicant has further developed a style of safely dancing Zouk which ensures the health and minimisation of injury to dancers. Given that Zouk is a dance style which is demanding and its movements, if badly executed, can cause serious injury, the visa applicant’s teaching methods are of great advantage to recreational and professional dancers alike.

    Evidence of Walter ‘Jai’ Villagonzalo

39. The nominator is one of the most highly respected and largest Latin dance schools in Australia and has over 400 m square in the Melbourne CBD.  It employs several paid staff and numerous volunteers and offers teaching in the Latin and Brazilian styles of dance.  The school also offers dance tours of Europe in 2020 and 2021 which include attendance at Latin dance festivals.

40. Brazilian dance styles are in high demand in Australia and many students are keen to learn Brazilian dance styles including Samba de Gafieira, Forro, Bolero and Zouk.  Although the dance school is popular with students, most of its clients are interested in recreational dancing, a small proportion is interested in competition dancing, and the school offers instruction for them.

41. In the nomination form, the review applicant describes the visa applicant’s achievements as follows:

    Eglantine is one of the top talents in the world, in her field of expertise, Brazilian Zouk and other Brazilian and Latin dance styles.  She is one of the most in-demand artists and instructors, internationally, and locally.  Eglantine has an impressive resume of work at international dance events and festivals, performing and teaching workshops.  Her Youtube videos have combined for millions of views and shares, and she’s an inspiration to thousands of dancers around Australia.

    I have many students who are very excited about the opportunity to work with Eglantine … Currently, Australia has only five Brazilian dance artists who could be considered world class, who came here on the distinguished talent visa and they are based in WA, SA and QLD, all have world class talent and that NSW/VIC are currently lacking in this talent, so Eglantine would be a huge asset, to Sydney and Melbourne.

42. The review applicant further explains the visa applicant’s exceptional benefit to the Australian community as follows:

    Eglantine’s presence in Australia would help boost the dance and arts profile of Australia in relation to the rest of the world, in addition to helping improve the quality of dancers and students we produce, through her expert training and teaching skills.

43. In his oral evidence, the review applicant described the visa applicant as an internationally renowned choreographer, performer and instructor in the area of Latin dance, particularly Brazilian Zouk, who has inspired dancers worldwide.  This is supported by his written reference where he notes that she is a “highly accomplished artist who would make a significant contribution to Australia socially, economically and artistically”.

    Does the visa applicant have an internationally recognised record of achievement in the area of Brazilian Zouk dancing?

44. 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.

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

1. 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.

2. 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] [2000] FCA 293 at [20].

3. 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.

4. 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.

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

6. The Tribunal notes that the visa applicant’s achievements internationally have been in the areas of teaching and dance performances, rather than for participation in dance competitions.  However, it is not implicit in the concept of an ‘internationally recognised record of achievement’ that such achievement is necessarily demonstrated by competitive success.  The Tribunal is satisfied that in her field of endeavour, she is recognised as one of the leading exponents of Brazilian Zouk and has attained pre-eminence as both a dancer and instructor of the art.

7. Accordingly, the Tribunal is satisfied that the visa applicant meets the requirements of cl.124.211(2)(a).

   Is the applicant still prominent in the area?

8. The Tribunal has considered the evidence of the visa applicant’s referees and has taken into account the numerous YouTube videos depicting the visa applicant’s performances and other social media references to the applicant, which indicate that at the time of application, the applicant was still prominent in the area of Brazilian Zouk.

9. Accordingly, the Tribunal is satisfied that the visa applicant meets the requirements of cl.124.211(2)(b)

   Would the visa applicant be an asset to the Australian community?

10. The Tribunal considers that the visa applicant’s talents as an instructor in the area of Zouk and Latin dancing and her interest in promoting Latin dance to a wide range of participants, not merely those interested in competing, would be an asset to the Australian community.  The Tribunal considers that involvement in dance as an art and as a form of exercise is of benefit to a wide range of age groups and fitness levels in its participants.

11. Accordingly, the Tribunal finds that the visa applicant meets the requirements of cl.124.211(2)(c).

    Would the applicant have no difficulty in obtaining employment or in becoming established independently in Australia in the area?

12. The Tribunal is satisfied that at the time of application the visa applicant has been engaged for several years as a teacher of Zouk and other styles of Latin dance.  Accordingly it finds that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia in the area.

13. Accordingly, the Tribunal finds that the visa applicants meets the requirements of cl.124.211(2)(d).

    FINDINGS

14. As the visa applicant meets all of the requirements in cl.124.211(2) the Tribunal finds that the applicant meets the requirement in cl.124.211(1) and accordingly meets cl.124.211 as a whole.

    DECISION

15. The Tribunal remits the application for a Distinguished Talent (Migrant) (Class AL) visa for reconsideration, with the direction that the visa applicant meets the criteria in cl.124.211 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member