Vasant (Migration)

[2019] AATA 3065

Vasant (Migration) [2019] AATA 3065 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prachi Vasant

CASE NUMBER:  1724923

DIBP REFERENCE(S):  BCC2017/1045786

MEMBER:Amanda Mendes Da Costa

DATE:2 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2019 at 3:40pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) Class BX visa – Subclass 858 – earlier prominence as a film producer with first film – does not demonstrate internationally recognised record of exceptional and outstanding achievement at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65,
Migration Regulations 1994, Schedule 2, cl 858.212(2)

CASES
Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Zhang v Minister for Immigration & Anor [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 25 September 2017 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 15 March 2017. The delegate refused to grant the visa on the basis that she did not have an internationally recognised record of exceptional and outstanding talent.

3. The applicant appeared before the Tribunal on 19 November and 10 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gus Howard and Mr Akshat Gupt (both by telephone).

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 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. Paragraph 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 film producer.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(iii) as belonging to a sport 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 documents provided to the Department and Tribunal include the following:

    ·List of awards for the short film ‘The Suburbs Go on Forever’.

    ·Reference and Curriculum vitae provided by Mr Gus Howard, the applicant’s nominator.

    ·Applicant’s statement of achievements dated 16 September 2017.

    ·Email, Creswick Creative to the applicant, dated 4 April 2017.

    ·Applicant’ curriculum vitae.

    ·Email, Excel Mumbai to applicant dated 7 June 2018.

    ·Reference for the applicant, Akshat Gupt, Supari Studios, Mumbai undated.

    ·Curriculum vitae for the applicant.

    ·Synopsis for applicant’s current documentary series, dated 20 January 2019.

20. The applicant is a National of India who was educated in Mumbai.  She initially arrived in Australia in 2001 and made a subsequent visit in 2011.  In 2012 she arrived in Australia for the purposes of study.  She holds a Bachelor degree in Media and Communication from North Eastern University, USA, graduating in 2012.  Before arriving in Australia she was employed in India as a dancer in several ‘Bollywood’ films. The applicant told the Tribunal that decided to travel to Australia to study as she considered there were better opportunities for graduates in the arts and film making in this country.  The applicant has graduated in Australia with a Master’s degree in production from the Victorian College of the Arts (VCA), Melbourne University in 2015 and a Master’s degree in Media and Communication from Monash University in 2016.

21. In 2012 the applicant was engaged to produce and edit promotional video content for the ‘Indian Film Festival of Melbourne’.  In the following year she was employed by Snag Films as a content producer and whilst in that role, created and edited a trailer for a documentary.

22. From 2015 to 2017 the applicant was employed as a communication and production operator for Michelin Tyres, Melbourne, where she created content for intranet videos; assisted with the company’s communications strategy; organised events and sponsorship for the Michelin brand to be represented at events; and authored a monthly intranet column regarding the roles of various employees.     

23. As part of her final year of study at the VCA in 2014, the applicant was the executive producer of  a short film titled ‘The Suburbs Go on Forever’, which she described as exploring the façade of the suburban family naivety towards sexual absolution through the protagonist’s affair with her professor.

24. The Tribunal notes that this film has received the following awards:

    ·Best student film, Los Angeles Cinema Festival of Hollywood, USA, 2015.

    ·Best student film, New York Los Angeles International Film Festival, USA, 2015.

    ·Best Cinematography in the student film section; screenplay and editing; and best cinematography, 5^th Dada Saheb Phalke Film Festival, India, 2015.

25. The film was in the official selection for the following film festivals:

    ·Berlin Independent Film Festival, Germany.

    ·Pineapple Underground Film festival, Hong Kong.

    ·The Portsmouth International Film Festival, United Kingdom.

    ·Chain NYC Film Festival, USA.

    ·John’s Hopkins Film Festival, Baltimore, USA.

    ·Little Rock Film Festival, Arkansas, USA.

    ·Miami Short Film Festival, USA.

    ·Social Creative and Innovative Film Festival, USA.

    ·San Francisco Global Movie Festival, USA.

    ·The Bayou Film Festival, USA.

26. The applicant has subsequently been the producer of two other short films, ‘Transaction’ (2014) and ‘Neon North’ (2017), the latter of which is being showed at films festivals overseas The applicant is planning another short film in a different genre, being a Sci Fi film.

27. The applicant explained that she was attracted to producing rather than roles in film making as it suited her desire for control and her organisation skills.  She also liked being involved in a project from inception to completion.

28. In 2017 the applicant was employed at a private Grammar school in Melbourne as a Production and Marketing Co-ordinator.  Her responsibilities included conceptualising, developing and managing video and photo shoots for the school; developing and producing radio advertisements, co-ordinating media opportunities and assisting with the development, implementation and evaluation of a marketing strategy for the school.

29. In 2018 the applicant returned to India for several month dues to family problems and her desire to be near her father. She returned to Australia in November 2018.  During her time in India she was employed by Supari Studios in Mumbai in the role if executive producer.  She had previously been engaged on a freelance basis as an associate producer by Supari Studios.  In that role she has been responsible for:

    ·Conceptualising and creating content strategies for brands such as Red Bull and Asian Paints.

    ·Acting as the creative producer for an award winning documentary ‘Doppelganger’

    ·Managing client such a Dolby, Red Bull and Twitter from content strategy, pitching and development, team management and productions.

    ·Acting as the Business development officer for the American and Asia Pacific regions.

30. Since returning to Australia the applicant has continued to work on script writing and post production projects for Supari Studios.  One of her current projects is a three part documentary series focusing on prominent Indians.  The applicant told the Tribunal that apart for showing it at international film festivals, Supari plan to distribute this series on platforms such as Netflix, Star and Amazon Prime.

    Evidence of Gus Howard

31. Mr Howard is a film and television producer with substantial experience in the production of Australian drama programs for television.  He was formerly Faculty Head and lecturer for the Master of Production course at the VCA.  He taught the applicant during her studies there in 2014.

32. Mr Howard told the Tribunal that in each year there are only 10 to 12 students chosen for the Masters of production course at the VCA each year and that in order to be selected for the curse they are required to demonstrate an existing skill in some aspect of film production.

33. Mr Howard described the applicant as a very good student with an interesting personality and good business sense.  Mr Howard said that the applicant’s artistic skills developed through the course and her projects were very well organised.  He described ‘The Suburbs Go On Forever’ as well made film with a professional look, good script and made at a commercial standard.  He explained that the applicant had managed a large crew and a complicated shoot for the film with great skill.  Mr Howards observed that the applicant’s strong organisational skills were important for a film or television producer and that she had the potential to succeed as a producer.

34. Mr Howard explained that the Masters of Production qualification gave graduates a 10 year advantage over other people of similar age in the film and television industry.  In his opinion, the applicant would be an asset to the film and television industry in Australia and she had the talent to ‘make a mark’ in the field of production.

    Evidence of Akshat Gupt

35. Mr Gupt is the co-founder and a director of Supari Studios in Mumbai.  Supari produces several types of digital content, including news, documentaries and cartoons for television and films.  One of its documentaries ‘Doppelganger’ won a Webby award which was the internet equivalent of the Oscars award.  Mr Gupt described the applicant as a very talented producer who had the experience and skills necessary to produce content which appealed to a variety of viewers.  He said that her studies and experience in Australia and India gave her a global view of production and that the applicant possessed the organisational ability to ensure that a production kept within budget and that the production ran smoothly.  He also said that the applicant had great creative talent which had been demonstrated in her involvement in the production of the series Doppelganger.

36. In Mr Gupt’s opinion that applicant had the potential to make a significant contribution to the Australian film industry, particularly in the area of animation.  This was because the applicant had strong links with the film and video industry in both India and Australia and could open up opportunities for Australian productions in India or with Indian content in Australia.

37. The Tribunal also notes that in his evidence, Mr Howard refers to the the applicant’s potential to succeed as a film producer.

38. In his written reference for the applicant, he attests to the applicant’s efforts to connect the video industry globally which has helped many international brands such as Michelin and WMG (on behalf of the warner Brothers label) connect with his company.  In his opinion the applicant understands of the film world and its collaborative process has meant that her efforts have “often exceeded above and beyond our expectation.  He viewed the applicant as a strong and confident producer whose work sets her apart from her peers.

39. The Tribunal notes that the applicant has also been supported in her studies and professional activities by Ms Mitu Bhowmick Lange, who is a film producer; a leading distributor of Bollywood films in Australia and New Zealand and the organiser of the Indian Film Festival of Melbourne.

40. In his decision the delegate found that the applicant’s body of work in film production was relatively recent and included three short films that the applicant had produced.  The delegated observed that the applicant’s most notable achievement was her graduating short film The Suburbs Go On Forever and that this film had been screened internationally at various film festivals and events and had drawn several awards and accolades following its screening.

41. The Tribunal acknowledges that the applicant is a talented producer with professional experience in both Australia and India.  It accepts that her short film The Suburbs Go On Forever has received critical acclaim through acceptance at a number of film festivals both here and overseas and awards from several film festivals.

42. The Tribunal finds that neither the terms of the regulation or the ordinary meaning of the word ‘record’ indicates that it should be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time.  The Tribunal is satisfied that a record is an aggregation or a list, not a large aggregation or a long list: see Zhang v Minister for Immigration & Anor [2007] FMCA 664.

1. The criteria for a distinguished talent visa require an internationally recognised record of exceptional and outstanding achievement at the time of making the visa application: cl.858.212 (2) (a).  This requires an assessment of the applicant’s past achievements and reputation at the time the application was made, not her potential to develop a record of exceptional and outstanding achievement looking to the future.

2. The Tribunal is satisfied that at the time the application was made, the applicant had received some recognition and acceptance in Australia and internationally for her The Suburbs Go On Forever.  However, following the release of this film in 2014 and until the lodging of the visa application in March 2017, the applicant’s work did not continue to receive the same level of recognition and acclaim.  The Tribunal notes that the applicant was employed for two years by the Michelin Company as a Production and Marketing Co-Ordinator and she produced a further film Transaction in 2014.  However, these achievements did not receive the recognition and acclaim of her first film.

3. The evidence before the Tribunal (both oral and documentary) does not demonstrate that at the time of application the applicant stood out in her field and was important and well-known by others in the field of film production.  Although she achieved some earlier prominence as a film producer with her first film The Suburbs Go On Forever, the Tribunal is not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement and therefore finds that the applicant does not meet the requirements of cl.858.212(2)(a).

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

   DECISION

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

   Amanda Mendes Da Costa
   Member