VASCONCELLOS DA SILVA (Migration)

[2018] AATA 4742

VASCONCELLOS DA SILVA (Migration) [2018] AATA 4742 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Daniela Vasconcellos Da Silva

CASE NUMBER:  1700912

DIBP REFERENCE(S):  BCC2016/1782651

MEMBER:Jennifer Cripps Watts

DATE:6 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the applicant meets the following criteria:

·     cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 06 December 2018 at 4:11pm

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the arts – tattoo artist specialising in tattooing for women with breast cancer – participation in professional and charitable events – established business in Australia – national and international profile as tattoo artist – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 858.212

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 16 January 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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 January 2017 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

3. The visa applicant applied for the visa on 19 May 2016. The delegate refused to grant the visa on the basis that they did not meet the subclauses 858.212(2).

4. The applicant appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Syane Macedo.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Sub-clause 858.212(1) requires that the applicant meet the criteria in either cl.858.212(2) or cl.858.212(4).  The issue in the present case is whether the applicant meets the requirements of cl.858.212(2), as set out below.  No claim has been made or evidence provided that suggests the applicant would meet the cl.858.212(4) criteria, essentially, that the applicant has provided specialised assistance to the Australian Government in matters of security. 

8. Clause 858.212 requires that the applicant:

   (a)has an internationally recognized 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

   (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.

9. The Distinguished Talent visa is a permanent visa for people who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided assistance to the Australian Government in matters of security.

10. The applicant in this matter applied for the Subclass 858 visa that is the subject of this review on the basis of her achievements in the arts.  The applicant is a tattoo artist who specialises in providing tattooing to women who have had breast cancer and also to other people who wish to have cover-up work done, mainly to cover scarring.  This part of her business is experiencing growth through increased awareness facilitated by the applicant’s participation in both professional and charitable events. 

11. The applicant provided a large amount of evidence, both at the time of application and also at the hearing.  The Tribunal has had regard to all the evidence, including the oral evidence given by the applicant and the witness, Ms Macedo. 

12. The Tribunal has had regard to the evidence provided and has also made its own independent inquiries in reaching a decision and has considered relevant facts and matters individually and cumulatively.

13. The applicant presented as a credible person who gave spontaneous and cogent oral evidence as did her witness who appeared at the hearing.  The applicant gave her history which, for the most part, is corroborated by documentary evidence she has provided.  Some matters, the Tribunal has accepted on the face of it.

14. The applicant is a citizen of Brazil who started tattooing at the age of 13 in Brazil and has been a tattoo artist for 22 years.  She has lived in Australia since 2013 working as a tattoo artist and, in March 2018, opened her own business.  She has a studio above a beauty salon at 87 Bondi Road, Bondi. 

15. The witness who attended the hearing, Ms Mercado, is a client and friend of the applicant.  She runs a yearly event called ‘Let’s Pink Together’, the most recent one was held in October 2018.  The event is supported by Net Brasil, an organisation that connects Brazilians in Australia.  It is held to raise awareness and money for breast cancer and the Cancer Council.  The applicant participates in the event in her capacity as an artist to support women with breast cancer.  She has also participated in campaigns by ACON and the Colouring Breast Cancer campaign in 2017, for example, and is active in fundraising activities in her capacity as a tattoo artist.

16. The applicant provided both the Tribunal and Department with a significant amount of evidence, including her oral evidence and that of Ms Mercado at the hearing, which has been corroborated by written references, photographs of the applicant’s work - including photographs in the public domain - and independent searches conducted by the Tribunal.  The applicant invited the Tribunal to Google certain matters she raised at the hearing and the results of these searches corroborated her evidence, mostly relating to her being widely known and acclaimed internationally for her work as an eminent tattoo artist.  A search of the internet for the applicant brings up many results, from multiple credible sources, and confirms that the applicant has both a national and international profile and that she has progressed to the top of her field over the 22 years she has been practising her art through tattoo.  The applicant has a significant presence on social media, including Facebook and Instagram.  She has appeared in magazines and on radio programmes, both in Australia and South America.  The producers of a pilot television show out of America, that is to be filmed in Australia in 2019 – Celebrity Ink Young Gunz, featuring Ami James of Miami Ink fame – have approached the applicant and she has agreed to be one of the judges.

17. It is apparent to the Tribunal, on the evidence, including from friends, colleagues and other well known professionals in the field of tattooing, that the applicant is considered to be at the top of her field as an exceptional and outstanding talent and that she is well known in the tattooing community in Australia and overseas, particularly in America and Brazil and that she is an asset to the Australian community.  The applicant is a member of the Australian Tattoo Association. 

18. The applicant provides tattoos for free to women with breast cancer.  Her other tattoo work is done in a commercial capacity through her business in Bondi for which she receives payment.  It is through this self-supporting venture that the applicant derives her income.  Most recently, the applicant has had significant interest expressed by representatives of the oncology unit at Royal North Shore Hospital and the Cancer Council who are recommending her to breast cancer patients interested in having tattoos done.

19. Witnesses, and the applicant herself, provided evidence that there is no-one else in Australia who does the tattoo work for women with breast cancer that the applicant does.  They said that there are other tattoo artists who tattoo nipples onto women who have had surgery, but there is no-one else in Australia who does the creative artistic tattoos that the applicant does.  A search of the internet by the Tribunal seems to confirm this.  Some of the applicant’s clients have provided evidence attesting to the quality of her work and the emotional and psychological benefits they have experienced through having the work done and what an asset she is to the Australian community.

20. The Tribunal’s view is that the applicant is considered to be at the top of her field as a tattoo artist, but also as a pioneer in the area of providing creative and enhancing tattoos to women who want to cover scars from breast cancer surgery.  Effectively, given her exceptional skill and outstanding talent, she is in the top echelons of what is, in the Tribunal’s view, an emerging area of tattooing for people who need cover up work done due to scarring.  There are few, if any other, people who produce this kind of body art in the form of tattoos for women with breast cancer of the exceptional quality that the applicant does.

21. Some of the applicant’s patients have travelled great distances to have her do their tattoos.  One lady, who provided video evidence, travelled from Tasmania to a tattoo conference in Perth that the applicant was attending as a special guest.  Other patients are women who have come to Sydney, had tattoos done by the applicant and then have returned to Brazil.

22. The applicant, on the evidence, including searches the Tribunal has done, is very well known and highly regarded in Brazil and Australia.  She has appeared in many magazine articles and on radio shows, she has been a guest attendee at many tattoo conventions and other events where she demonstrates her talent.  On the basis that the applicant has been approached by Ami James, an internationally known tattoo artist and television personality from America known through the show ‘Miami Ink’, to take part in a television show in her capacity as a tattoo artist judging emerging talent, the Tribunal’s view is that she is well known and considered to be an important talent in the tattooing arts by people in the field in America.

23. A completed form 1000 signed by an Australian citizen accompanied the visa application.  The applicant is nominated by Christopher Cashmore who attests to his personal knowledge of the applicant’s exceptional and outstanding achievements in the area of tattooing and the standing she has in her field, including internationally.  He has provided his own resume including that he is an award winning professional tattooist and professional tattoo machine manufacturer who has been in the industry for over 35 years and is based in Canberra, although he arranges and attends tattoo conventions around Australia.  Mr Cashmore has a significant presence online.  He is well known nationally.  Searches reveal results for Facebook, newspaper reports, various conventions he has arranged and attended and YouTube videos.  The Tribunal is satisfied that the nominator, Mr Christopher Cashmore, is an individual with a national reputation in the same field as the applicant’s and that he is regarded to be one of the top people in the field.

    Conclusion

24. On the evidence, the Tribunal is satisfied that the applicant has provided a Form 1000 from an appropriate person who is an Australian citizen with a national reputation in the same field as the applicant, that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts as a tattoo artist, that she is still prominent in the area, that she would have no difficulty finding employment and that she would be of exceptional benefit to the Australian community.  The Tribunal is therefore satisfied that the applicant meets cl.858.212(2)(a)-(e).  The applicant was not younger than 18 or older than 55 when she lodged her visa application and sub-clause 858.212(2)(f) is not applicable.

25. Accordingly, the Tribunal is satisfied that the applicant meets cl.858.212.

26. Given these findings, the appropriate course is to remit the application for the visa to the Department for assessment against the remaining criteria for a Subclass 858 visa.

    DECISION

27. The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the applicant meets the following criteria:

    ·cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

    Jennifer Cripps Watts
    Member