VARGAS RODRIGUEZ (Migration)

[2019] AATA 3074

VARGAS RODRIGUEZ (Migration) [2019] AATA 3074 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Oscar Javier VARGAS RODRIGUEZ
Mrs LUISA FERNANDA ESTUPINAN CARDENAS

CASE NUMBER:  1727717

DIBP REFERENCE(S):  BCC2017/1601068 BCC2017/1666799

MEMBER:Amanda Mendes Da Costa

DATE:23 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Distinguished Talent (Residence) (Class BX) visas, with the direction that the first named applicant meets the following criteria for a Subclass 858 visa:

cl.858.212 of Schedule 2 to the Regulations.

Statement made on 23 May 2019 at 9:52am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – the arts – musician – music producer – internationally recognised record of exceptional and outstanding achievement – work recognised with several nominations and awards – music scholarship recipient – recognised as prominent in field – asset to Australian community – decision under review remitted

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

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 October 2017 to refuse to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 3 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet the requirements of cl.858.212 to Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicants appeared before the Tribunal on 17 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Martin Walter Brown – music producer, who is the applicant’s nominator.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the first named applicant (the applicant) meets the criteria in 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 approval form 1000.

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

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

8. 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.

9. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a musician and music producer.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(iii) as belonging to the arts as a musician and music producer for the purposes of cl.858.212(2)(a).

10. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations).

11. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

12. According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined to mean: “1. forming an exception or unusual instance; unusual; extraordinary. 2. extraordinarily good, as of a performance or product. 3. extraordinarily skilled, talented, or clever.”  It also defines the word ‘outstanding’ to mean: “1. prominent; conspicuous; striking. 2. that continues in existence; that remains unsettled, unpaid, etc. 3. standing out; projecting; detached. 4. that resists or opposes.”

13. 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. Notably 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”. The Tribunal also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity.  The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.”  Therefore Gaffar’s case, has limited application in the current context.  The Tribunal acknowledges, however, 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.

14. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, which is apposite. The Tribunal notes the comments of Kieffel J at [49]-[50]:

    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.

15. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

16. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”.  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.

17. 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.

18. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

19. The applicant is a National of Colombia who holds qualifications in the field of music from UNAD Open and Outreach National University, Colombia and the Berklee College of Music, Boston USA.  In 2010 the applicant was awarded a scholarship in Audio Technology to study at UNAD and his studies at Berklee were undertaken after he was awarded the Phil Ramone Online Scholarship for Outstanding Music production in 2016.  The applicant told the Tribunal that he was one of 30,000 students in 140 countries competing for the Phil Ramone Scholarship.

20. In addition to being an awarded a scholarship to study music production, the applicant is the recipient of the following music awards in Colombia:

    2012:   Best New Rock Artist Nominee, Shock Awards.

    2013:   Best Alternative-Indie Artist, Winner Subterranica Awards.

    2013:   Best Reggae Song Winner, Shock Awards.

    2015:  Best Reggae Band, Medellin and Antioquia Music Awards.

21. The applicant was also nominated in 2014 and 2016 for the Best Reggae or Ska Band in the Subterranica Awards.  The applicant explained to the Tribunal that the Subterranica Awards were one of the most important music awards in South America and were equivalent to the Grammys in the USA or the Aria Awards in Australia.

22. The applicant has been singing since the age of three years and currently performs as a drummer, singer and song writer.  He regularly performs with a Colombian/Australian band and also works as a music producer.  He continues to work as a mixing engineer for bands in Colombia and recently performed on the debut album of the Australian artist Harrison Brown.  This record was produced by the applicant’s nominator, Martin Brown.

23. In July 2017 the applicant was the winner of the mixing competition ‘Aussie Mix’ on social media.

24. The applicant told the Tribunal that if granted the visa, he plans to open a private recording studio of his own and to further his career in Australia as a music producer.  He provided the Tribunal with details of his joint bank account with his wife which indicates he has the financial ability to invest in his own recording studio.

    Evidence of Martin Brown

25. Mr Brown is a drummer and music producer who has been involved in the Australian music industry for over 20 years.  In 2003 he established a recording studio – Stand Alone Studios and later a management company.  He manages and produces music for the singer Clare Bowditch, whose albums have all been nominated for Aria Awards in Australia and has achieved top 10 positions.  He plays in her band and with her has toured very major music festival in Australia.  Mr Brown has played with and produced music for artists such as Darren Middleton and Bernard Fanning (Powderfinger, Guy Pearce, Emily Ulman, Harrison and Jess McAvoy.  Since 2013 Mr Brown has managed the band Flying Colours, who have been signed to various record labels overseas.

26. Mr Brown told the Tribunal that he considered the applicant to be an exceptional music producer whose work had been recognized with several nominations and awards in Columbia.  He noted that some of the applicant’s recent works involved the production (mixing and mastering) of singles by the Res y yo Band in 2016; and the Harrison band in 2017.

27. In Mr Brown’s opinion the applicant is an outstanding talent (both as a musician and music producer) and his unique artistic vision offers a new sound to the Australian Music Industry which is currently short of music producers with a Latin American background.

28. The applicant provided written submission to the Tribunal in which he addresses the delegate’s findings.  These submissions may be summarised as follows:

    ·He was a very experienced musician and song writer.

    ·Although still a very young music producer, his work had been recognized as excellent and superior to other artists.

    ·The Shock Awards in Colombia were as important as the ARIA Awards in Australia, the Grammy Awards in the USA and other national music awards in other countries.  The Shock Awards is a prestigious and premier event in the Hispanic music scene and the Subterranica Award e similarly one of the most important awards in the Colombian Rock Music scene.

    ·Being nominated for or receiving a Shock or Subterranica Award gives the artist national and international recognition that puts their work in an exceptional and outstanding part of the Hispanic music industry.

    ·The fact that the music awards given to the applicant were in Colombia does not make the awards less important than other awards.  The ceremonies, media coverage and selection criteria for these awards are similar to the Grammy awards in the USA and the Aria awards in in Australia.

    ·Berklee College of music is one of the top five music schools in the USA and his scholarship is an indication of the applicant’s superior academic performance.  Distinguished artists in the music industry such as Quincy Jones and Diana Krall are alumni of Berklee Music College.

    ·In comparing the applicant’s music career, awards and achievement with other prominent international artists in his field, his achievements make him an exceptional and outstanding music producer with a promising successful career ahead of him.

29. The applicant has demonstrated a record of achievements in Columbia as a song writer and performer, both individually and in collaboration with other performers.  These have included the Subterranica, Shock and Medellin and Antioquia music awards.  Although the Tribunal is not persuaded that such awards are comparable to  awards such as the ‘Grammy’ awards as suggested by the applicant, it is persuaded that the awards are internationally recognised and have received particular acclaim in the Latin American music industry.

30. The applicant has also completed an online music production course at Berklee College, USA, which was funded by a scholarship.  The Tribunal acknowledges that Berklee College has a reputation as a prestigious music college whose alumni include performers such as Quincy Jones and Dana Krall.  The Tribunal accepts that the applicant’s admission to a Berklee course and the award of a scholarship to fund such study demonstrates the applicant’s skills as a music producer.  This is supported by his work in Australia as a music producer and the professional respect and appreciation of producers such as Martin Brown, whose evince the Tribunal accepted.

31. The Tribunal also notes that the applicant won a mixing competition in Australia in 2017.  The Tribunal accepts that this award recognises the applicant’s outstanding talent in the production of music.  However, given this was achieved after the date of the visa application, the Tribunal is not able to consider it for the purpose of assessing the applicant’s claims against cl.858.212(2)(a).

32. The Tribunal is satisfied on the totality of the evidence that the applicant does have an internationally recognised record of exceptional and outstanding achievement in the arts, being the area of music.  Accordingly cl.858.212(2)(a) is met.

33. Clause 858.212(2)(b) requires that the applicant is still prominent in the area.

34. The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used.  The Macquarie Dictionary defines the word as meaning ‘important’; ‘leading’; ‘well-known’.

35. In the case of Henry Dolphin [2004] MRTA 7537 the visa applicant was playing cricket at a district level and achieving strong results. Whilst the Tribunal accepted that the applicant was not playing at the highest level in cricket in Victoria, it found that he was playing in a well-regarded competition and was an important and well-known player in that competition.  On that basis the Tribunal found the applicant to.be still prominent in that field.

36. In the recent decision of Vandort (Migration) [2018] AATA 1538 (9 April 2018) (Vandort’s case) in which the applicant was also a Sri Lankan cricket player, the delegate refused the application on the grounds that the applicant was not still prominent in the field.  The member in Vandort’s case made the following observation:

    19. During the hearing the representative posited that the test to determine prominence is not the ‘Shane Warne test’; being that even individuals not familiar with cricket must know the name and identify and associate the individual with the sport, as they would with the mention of Shane Warne’s name for instance. But rather, the test is that the applicant is recognised as prominent by those within the field and for cricket would be; officials, other players, peak bodies/associations, media, fans and so forth.  The Tribunal agrees that the ‘Shane Warne test’ is not the correct method to measure prominence.

    20. In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ‘stands out’ in his field and is ‘important’ and ‘well known’ by others within his sport.

37. The Tribunal is satisfied that although these observations were made in relation to cricket players, in so far as they relate to the question of prominence, are apposite to the applicant’s case.

38. The Tribunal finds that the applicant is a talented and versatile performer and notes that he has been actively involved in the music industry in Melbourne for over six years.   He is performing as a singer and musician in a number of bands and has produced a recent album by the up and coming artist, Harrison Brown.  The Tribunal further accepts his evidence that if granted the visa he proposes to establish a recording studio in Melbourne to further his career as a music producer and promote the popularity of Latin American Music in Australia.

39. The Tribunal finds that the applicant is an exceptionally talented musician, singer and music producer and is satisfied that although the applicant was not regarded at the time of application as the “Shane Warne’ of music, nevertheless he was well recognised as prominent in the field of music production and as a performer by other musicians, producers and those involved in the music industry.

40. Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.858.212(b).

41. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. Since his arrival in Australia the applicant has been involved in playing and producing music. The Tribunal accepts the evidence of Martin Brown that the applicant talents in the area of Latin American music are likely to provide new ideas and musical styles to the Australian music industry which is currently short of music producers with a background is such music.   Accordingly the Tribunal is satisfied that cl.858.212(2)(c) was met at the time of application.

1. The Tribunal is satisfied that the evidence shows that at the time of application, the applicant had gained employment as a musician and producer and is therefore is satisfied the applicant would have had no difficulty in obtaining employment or becoming established independently in Australia in the area of music. Accordingly the Tribunal is satisfied that cl.858.212(2)(d) is met.

2. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed Form 1000 signed by Martin Brown and dated 23 April 2017 was submitted with the visa application. The Tribunal is satisfied from the evidence before it that Mr Brown is an Australian citizen who has a national reputation in relation to the area of music.  Mr Brown attests to the applicant’s exceptional and outstanding record of international achievement as a musician and music producer, particularly in the field of Latin American music. Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.

3. The Tribunal is satisfied that given the applicant’s age (30 years) at the time of application the provisions of cl.858.212(2)(f) do not apply to him.

4. As the applicant meets all of the 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.

5. In relation to the second named applicant, the Tribunal finds that as the applicant meets the criteria for grant of a Distinguished Talent (Residence) (Class BX) visa, the second named applicant meets the criteria for a Subclass BX visa as a member of the family unit of a person who satisfies the primary criteria.

6. Given the above findings, the appropriate course is to remit the applications for visas to the Department to consider the remaining criteria for a Subclass 858 visa.

   DECISION

7. The Tribunal remits the applications for  Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:

   ·cl.858.212 of Schedule 2 to the Regulations.

   Amanda Mendes Da Costa
   Member