Villanueva Carrillo (Migration)

[2017] AATA 951

Villanueva Carrillo (Migration) [2017] AATA 951 (23 May 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Heldy Allen Villanueva Carrillo

CASE NUMBER:  1601775

DIBP REFERENCE(S):  BCC2015/1006514

MEMBER:Glen Cranwell

DATE OF DECISION:  23 May 2017

DATE CORRIGENDUM

SIGNED:27 June 2017

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.The date of decision on the decision record (23 March 2017) should be replaced with 23 May 2017.

Glen Cranwell
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Heldy Allen Villanueva Carrillo

CASE NUMBER:  1601775

DIBP REFERENCE(S):  BCC2015/1006514

MEMBER:Glen Cranwell

DATE:23 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 May 2017 at 1:15pm

CATCHWORDS

Migration – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – Internationally recognised record of exceptional and outstanding achievement – Achievement in Pop Corn Art – Target audience of children – No international recognition

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 1, Item 1113, Schedule 2, cl 858.212

CASES

Zhang v MIMA & Anor [2007] FMCA 664
Gaffar v MIMIA [2000] FCA 293

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 28 January 2016 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 1 April 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts.

3. The applicant appeared before the Tribunal on 23 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   RELEVANT LAW

6. The Distinguished Talent Class BX visas are permanent visas for persons 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 specialised assistance to the Australian Government in matters of security.

7. At the time the visa application was lodged, the Distinguished Talent (Residence) Class BX visa contained only one subclass: Subclass 858 (Distinguished Talent) visa: Item 1113 of Schedule 1 to the Regulations.

8. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. The issue in dispute in this review is whether the visa applicant meets the requirement of cl 858.212. This clause relevantly provides:

   858.212

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

   (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.

   [(3) omitted by SR 2003, 239 with effect from 1/11/2003]

   (4)    The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:

   (a)the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or

   (b)the Director-General of Security;

   the applicant has provided specialised assistance to the Australian Government in matters of security.

9. 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. A record is an aggregation or a list, not necessarily a large aggregation or a long list: Zhang v MIMA & Anor [2007] FMCA 664.

10. In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the Court in Gaffar v MIMIA [2000] FCA 293 held that a similar phrase “exceptional record of achievement” in an earlier category of skilled residence visa requires a demonstrated excellence in the relevant occupation which is out of the ordinary. The Tribunal is of the view that this is equally applicable to cl.858.212(2)(a).

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. On the Department file are the following relevant documents:

    ·Reference from Surf City Christian College dated 14 February 2012;

    ·Undated reference from Surf City Christian Church;

    ·Certificate of Appreciation from unknown organisation;

    ·Undated reference from Surf City International Training College;

    ·Reference from Ace Tennis Academy dated 9 March 2015;

    ·Reference from Surf City Church dated 18 March 2015;

    ·Certificate of Appreciation from Surf City Christian Church dated 15 December 2012;

    ·Student of the Year 2012 award from Surf City International Training College;

    ·Reference from Peru “Matisse” Dance and Aerobics Workshop dated 30 March 1991;

    ·Reference from Peru “Matisse” Dance and Aerobics Workshop dated 30 October 1995;

    ·Certificate in Hotel Management from Institute San Martin del Peru dated 4 March 2008;

    ·Personal Development Course in Boundaries from Surf City Christian College 2012;

    ·Personal Development Course in Extraordinary Living from Surf City Christian College 2011;

    ·Personal Development Course in Facilitator Training from Surf City Christian College 2013;

    ·Personal Development Course in Search for Significance from Surf City Christian College 2011;

    ·First aid certificate;

    ·Certificate III in Hospitality (Commercial Cookery);

    ·Advance Diploma of Christian Ministry and Theology from Surf City International Training College dated 19 December 2013;

    ·Certificate III in Children’s Services;

    ·Diploma of Sport (Development) from Ace Tennis Academy;

    ·Reference for position of Assistant of Food and beverage from Hotel Paracas dated 14 June 2006;

    ·Camp Australia Networking Meetings Certificate of Attendance 2015 term 1;

    ·Letter from Provincial Municipality of Pisco dated 1 September 2007 relating to earthquake damage;

    ·Various photographs;

    ·Camp Australia Five Smiles Systems Areas of Measure Assistant;

    ·Payslips from Camp Australia;

    ·Stall documentation from Culture Street Markets;

    ·Information on Pop Corn Art;

    ·Statement of the applicant;

    ·Reference from Surf City International Training College dated 1 October 2015;

12. The applicant provided the Tribunal with the following documents:

    ·Submissions from the representative;

    ·Reference from Surf City College dated 16 May 2017;

    ·Information on Pop Corn Art.

13. At the hearing, the applicant identified her field of art as Pop Corn Art.

14. The Tribunal asked the applicant to identify her “internationally recognised record of exceptional and outstanding achievement” in Pop Corn Art.

15. The applicant stated that before she came to Australia, she did not know about her skills and abilities.  It was only when she studied in Australia that she realised her artistic abilities.  She was awarded student of the year in 2012.  Her target is children, and she works with children.

16. The Tribunal put to the applicant that she had not identified any international recognition of her work.  For an artist, the Tribunal might expect her to have exhibited her works internationally or to have received critical acclaim internationally in respect of those works.

17. The applicant stated that, when she was awarded student of the year in 2012, she had to compete against international students not just Australian students. 

18. The Tribunal noted that this did not constitute international recognition.  The applicant stated that her college was affiliated with American schools.

19. The Tribunal again noted that this did not constitute international recognition, unless she had recognition from the American affiliates.  The applicant stated that she was connected with art when she was little, but the documentation was lost when her parents’ home was destroyed in an earth quake.

    Assessment

20. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in her nominated field of the arts of Pop Corn Art.

21. The Tribunal is not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts.  The applicant has provided no evidence that she has been internationally recognised in any sense.  The applicant has not provided details of any international exhibition of her works, nor has she provided details that her work has been the subject of critical acclaim in overseas circles.  While potential is not irrelevant, the statutory test clearly calls for an internationally recognised record.  It is not a visa designed to give those without a such a record an opportunity to establish one for the first time. 

22. The Tribunal considers that the applicant’s achievements at the time of application do not meet the exacting requirements of cl.858.212(2)(a) of Schedule 2 to the Regulations.

23. Since the applicant does not meet cl.858.212(2)(a), and no evidence has been provided indicating that the applicant meets cl.858.212(4), the Tribunal finds that the applicant does not meet cl.858.212. The Tribunal must therefore affirm the decision under review.

    CONCLUSIONS

24. As the Tribunal has found the applicant does not satisfy cl.858.212, the decision under review must be affirmed.

    DECISION

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

    Glen Cranwell
    Member