Yoo (Migration)

[2019] AATA 1294

Yoo (Migration) [2019] AATA 1294 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yebin Yoo

CASE NUMBER:  1801686

DIBP REFERENCE(S):  BCC2017/1558539

MEMBER:Amanda Mendes Da Costa

DATE:14 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for 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

Statement made on 14 January 2019 at 3:43pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – the arts – musician – violin soloist – young talent – internationally recognised record of exceptional and outstanding achievement – exceptional benefit to Australian community – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cls 805.212, 858.212

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [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 2 January 2018 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 28 April 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.858.212(1) in that she did not satisfy the criteria in either subclauses (2) or (4) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal on 8 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence by Dr Robin Wilson and Professor Nick Deutsch (by telephone).

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

   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. 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 she has an internationally recognised record of exceptional and outstanding achievement in the area of music as a violin soloist.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(iii) as belonging to the arts 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(2)(a) is not defined in 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 her 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 did not provide the Tribunal with any further documentation for the purpose of this review.  However, the Tribunal has considered the following documents, which were provided to the delegate for the purpose of her decision:

    ·Newspaper articles.

    ·Reference, Dr Robin Wilson, Head of Violin, Australian National Academy of Music (ANAM) dated 6.2.17.

    ·Reference, Chris Howlett, Melbourne Piano Trio, undated.

    ·Richard Gill AO, dated 15.3.17.

    ·John Curro, String Department of Queensland Conservatorium of Music.

    ·Nomination form and reference, Nick Deutsch, Artistic Director, ANAM, dated 4 March 2017.

    ·Various music performance programs.

20. The applicant is a National of South Korea who arrived in Australia in 2010, aged 10 years of age.  She commenced playing the violin aged eight years and has been studying that instrument through private lessons and attending music academies since that age.  Ms Yoo is the winner of the following competitions as a soloist:

    ·Preston Youth Concerto Competition, including the Conductor’s Choice and Audience Choice Awards, 2014.

    ·Hephzibah Menuhin Memorial Award, 2015.

    ·Gisborne International Music Competition, 2016.

    ·Pultron Composites Award for best performance of a New Zealand Work, 2016.

    ·3MBS Classical Radio ‘the Talent Competition’ 2016.

    ·Inaugural ‘Young Performer of the Year’ in ‘Music in the Round’ concert series at Abbotsford Convent, Melbourne, 2016.

    ·National Youth Concerto Competition, 2017, with a unanimous decision by the judges – the first in over 10 years of competition.

    ·John Chandler Memorial Award, sponsored by the Music Society of Victoria, 2017.

    ·Open Section of Australian Concerto and Vocal Competition, also receiving the John Hopkins fellowship and Audience Prize and Barrier Reef Orchestra Partnership Award, 2018.

21. In addition to the above awards, the applicant’s achievements include the following:

    ·Guest soloist with the Queensland Youth Symphony Orchestra, 2014, 2015 and 2016.

    ·Guest soloist with the Art of Sound and Preston Symphony Orchestras 2015.

    ·Guest soloist with the Melbourne Youth Orchestra, 2016.

    ·Casual employment with the Adelaide Symphony Orchestra.

    ·Master classes with internationally renowned violinist, Pinchas Zukerman.

    ·Selected as one of few participants for Professor Miriam Fried’s Kronberg Academy Masterclasses in Germany out of a pool of 200 applicants internationally.

    ·Sold-out debut concert at Kew Court House, Melbourne which was broadcast on MBS FM, 2017.

    Evidence of Dr Robin Wilson

22. Dr Wilson is the Head of Violin at ANAM and has been Ms Yoo’s violin teacher for the past six years.  He is one of the preeminent violin teachers in Australia and also teaches students in several overseas countries.  Dr Wilson described Ms Yoo as one of the most talented students that he has ever taught.  He told the Tribunal that as a secondary school student Ms Yoo studied and played with the students at ANAM on a regular basis.  This was extremely unusual as ANAM students are generally post tertiary music students. Whilst at ANAM Ms Yoo participated in master classes and played as a soloist, including performances with overseas conductors of international repute, such as Simone Young, a conductor with major opera companies and orchestras in Australia and internationally, particularly the Hamburg State opera and Music Director of the Hamburg Philharmonic Orchestra in Germany.  Dr Wilson said that only one other musician had been offered the same opportunity to play with ANAM as a secondary school student.  He not only praised the applicant’s technical ability as a violinist, but said that she was a mature performer with a unique ability to covey an emotional message to audiences.  He told the Tribunal that at the time of her visa application and since, Ms Yoo has been easily employable as a soloist or member of chamber and orchestral groups.

23. In his written reference dated 6 February 2017, Dr Wilson described the applicant as follows:

    Yebin already possesses a fluent virtuosi technique that far surpasses most professional musicians. However, it is the sincerity, maturity and expressive dimension of her playing that truly stands her apart. It is rare to find someone so young who is capable of communicating sophisticated and profound compositions to an audience in such a masterfully convincing manner. Not only does she have a deeply innate sense of the emotionally qualities of music but her fierce intellect allows her to understand the structure and architectural composition at a much deeper level.

    Yebin is already a highly accomplished performer both locally regionally nationally and internationally her recent success is the youngest ever winner of the prestigious Gisborne International music competition in New Zealand, the most significant composition in the southern hemisphere across all young musicians on all instruments, is testimony to her international standing and incredible promise.

    Evidence of Professor Nick Deutsch

24. Professor Deutsch is the artistic director of ANAM and Professor of Oboe at the Hochschule fur Musik – Felix Mendolsohnn Bartholdy Leipzip, Germany.  He formerly held the position of Solo Oboe with the Frankfurt Opera Orchestra and was a member of the Budapest Festival Orchestra.  He has performed regularly with the Israel Philharmonic Orchestra and has also played as Principal oboist with the Bayreuth Festpiel Orchestra and the Australian World Orchestra.  He has been a guest professor as a number of music academies overseas, including  the Conservatoire National Superier du Musique (Paris); Royal College of Music (London); Royal Academy of Music (London); Gnessin School of Music (Moscow); Hong Kong Academy of Music; Bern Academy of Music; Buchman Mehta School of Music (Tel Aviv); and Sydney Conservatorium.

25. In addition to his own career as an oboe player, Professor Deutsch has been involved as a music educator (including the tertiary sector) for approximately 15 years.  He confirmed the evidence of Dr Wilson and described Ms Yoo as an exceptional musician.  He highlighted the applicant’s achievement in being the youngest winner (at age 16 years) of the  international Gisborne Music Competition, held in New Zealand.

26. In his written reference for Ms Yoo, Professor Deutsch opines:

    Yebin’s regular performances provide an exciting and significant opportunity for the concert going public throughout Australia to hear playing the highest international level. Yebin brings extraordinary technique, flair and artistry to her performances that I have personally witnessed as being captivating and deeply moving. It is very rare for a performer, especially at such a young age, to communicate to an audience with such a mature and compelling presence.

27. Professor Deutsch told the Tribunal that although the applicant was young, she already had an international reputation for exceptional and outstanding talent, based on her winning of a prestigious international music competition, her playing with ANAM and work with several conductors with international reputations of their own.

28. The Tribunal notes that in their written references, Messrs Howlett, Gill and Curro attest to the applicant’s skills as a violinist and value to the Australian community.  In his reference, Mr Curro opines:

    Yebin’s playing is characterised by immense power and accuracy, a highly developed technique for one so young and a beautiful sound.

29. The applicant is currently studying for a Bachelor of Music degree at the New England Conservatory of Music in the United States of America.  She told the Tribunal on completion of her studies she intends to return to Australia to live and play.  During 2019 Ms Yoo will perform on two occasions in Australia.

30. Whilst in America, the applicant has played in several public performances in Boston and New York including the premier of an Australian composition by Jonathon Mui.

31. The Tribunal notes that whilst the delegate acknowledged the applicant’s achievements as a musician, particularly at such a young age, she considered the applicant’s abilities and achievements to be that of an emerging talent, rather than one of an established distinguished talent.

32. 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.

33. 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. The Tribunal is satisfied that at the time the application was made, the applicant had received significant recognition and acceptance in Australia as well as achieving an international standing in the field of music as a violinist.  She had played as a soloist with conductors of international repute and had won two prestigious international music competitions (Gisborne and Pultron Composites) with the added distinction of being the youngest competitor to ever to do so.  The Tribunal finds that the applicant’s record of achievement in the field of music is and was at the time of application, unusual, prominent and out of the ordinary.  

34. The Tribunal finds that the applicant met the requirements of cl.858.212(2)(a).  The Tribunal is satisfied from the evidence provided that the applicant does have an internationally recognised record of exceptional and outstanding achievement in music as a violinist and did so at the time of application.  The Tribunal acknowledges that given the applicant’s age and the period of time she has been engaged in playing, her record of achievement has not been attained over a lengthy period.  However, the Tribunal finds that cl.858.212(2)(a) does not require that an applicant’s record of achievement be attained over a particular period of time.  Nor does the fact that Ms Yoo’s international reputation may be enhanced by further experience and success as a musician detract from the reputation and record of achievement that she has already achieved. 

1. The Tribunal is satisfied that that the applicant’s career at the time of the visa application indicates that she was still prominent in the area of music.  This includes her work with ANAM; as a guest soloist with the Queensland and Melbourne Youth Orchestras; her casual work with the Adelaide Symphony Orchestra and the numerous awards for music competitions, particularly the Gisborne Music Competition.  Accordingly the Tribunal finds that cl.858.212(2)(b) is met.

2. Clause 858.212(2)(c) requires that the applicant would be an asset to the community.

3. The Tribunal is satisfied that apart from her technical skills as a violinist, the applicant is a mature performer with a unique ability to convey an emotional message to her audiences.  The Tribunal notes that she has already been awarded a number of audience prizes, indicating that her playing has wide appeal to audiences.  The Tribunal also notes that the applicant’s performances have included radio and at community venues such as churches and local venues.  The Tribunal accepts that the applicant has demonstrated a desire to involve the community in appreciating music of the highest calibre and those performances are likely to enrich the cultural life of the Australian community.  The Tribunal is further satisfied that the applicant is likely to inspire other (and particularly younger) musicians to pursue a career in music.  Accordingly the Tribunal finds that cl.858.212(2)(c) is met.

4. Clause 858.212(2)(d) requires that the applicant would have no difficulty in obtaining employment or in becoming established independently in Australia in the area.

5. Although at the time of the visa application, the application was still a student, the Tribunal is satisfied that her extraordinary talent; work with ANAM and the Adelaide Symphony Orchestra and numerous awards for music competitions, demonstrate that the applicant would have had no difficulty in obtaining employment, or in becoming established independently in Australia in the area.

6. Clause 858.212(2)(e) requires the prescribed form to be completed and signed by an eligible nominator that attests to the applicant’s record of achievement.  A completed approval form 1000 signed by Professor Nick Deutsch, an Australian citizen, dated 4 March 2017 accompanied the application.  Professor Deutsch attested in this form to the applicant’s record of achievement as a violin soloist.  The Tribunal finds that Professor Deutsch’s positions as Artistic Director of ANAM and Professor of Oboe in Leipzig, Germany, together with his international career as an oboe player and music teacher show he has a national reputation in relation to the area of music.  As such, cl.858.212(2)(e) is met.

7. The Tribunal notes that the applicant was aged 17 years at the date the visa application was made.  She is therefore required to meet the requirements of cl.858.212(2)(f), which provides that if the applicant has not turned 18, or is at least 55 years old, at the time of application, he or she would be of exceptional benefit to the Australian community.  The Tribunal is satisfied that the applicant’s extraordinary talent as a violin player; her capacity to contribute to the cultural life of the community; her ability to inspire other musicians and promote an appreciation of music in Australia show that the applicant would be of exceptional benefit to the Australian community.  Accordingly, cl.858.212(2)(f) is met.

   DECISION

8. 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.

   Amanda Mendes Da Costa
   Member