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071836780 [2008] MRTA  824  (16 September 2008)

Last Updated: 16 October 2008

071836780  [2008] MRTA 824  (16 September 2008)

DECISION RECORD

APPLICANT: Ms Naomi Kathleen Price

MRT CASE NUMBER: 071836780

DIAC REFERENCE(S): CLF2007/111718

TRIBUNAL MEMBER: Hugh Wyndham

DATE DECISION SIGNED: 16 September 2008

PLACE OF DECISION: Sydney

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 for a Subclass 858 (Distinguished Talent) visa:

• cl.858.211 of Schedule 2 to the Regulations; and
• cl.858.212 of Schedule 2 to the Regulations.

.

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 and Citizenship to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied to the Department of Immigration and Citizenship for a Distinguished Talent (Residence) (Class BX) visa on 10 August 2007. The delegate decided to refuse to grant the visa on 2 October 2007 and notified the applicant of the decision and her review rights by letter dated 2 October 2007.
3. The delegate refused the visa application as the applicant did not satisfy cl.858.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not satisfy cl. 858.212(2)(a) because she was not satisfied that the applicant had demonstrated that she had an internationally recognised record of exceptional and outstanding achievement in the arts.
4. The applicant applied to the Tribunal on 1 November 2007 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2)of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. The time of application criteria are:

858.21 Criteria to be satisfied at time of application

858.211

(1) The applicant is not the holder of:

(a) a visa of one of the following classes:

(i) Electronic Travel Authority (Class UD);

(ii) Long Stay (Visitor) (Class TN);

(iia) Maritime Crew (Temporary) (Class ZM);

(iii) Short Stay Sponsored (Visitor) (Class UL) (also known as a Sponsored (Visitor) (Class UL));

(iv) Short Stay (Visitor) (Class TR);

[(v) omitted by SR 2001, 142 - LEGEND note]

(vi) Tourist (Class TR); or

(b) a special purpose visa; or

(c) a Subclass 456 (Business (Short Stay)) visa.

(2) If the applicant is not the holder of a substantive visa:

(a) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004; and

(b) the last substantive visa held by the applicant was not:

(i) a visa of one of the following classes:

(A) Electronic Travel Authority (Class UD);

(B) Long Stay (Visitor) (Class TN);

(BA) Maritime Crew (Temporary) (Class ZM);

(C) Short Stay Sponsored (Visitor) (Class UL) (also known as a Sponsored (Visitor) (Class UL));

(D) Short Stay (Visitor) (Class TR);

(F) Tourist (Class TR); or

(ii) a special purpose visa; or

(iii) a Subclass 456 (Business (Short Stay)) visa.

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

(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.

(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.

CLAIMS AND EVIDENCE

7. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
8. The applicant was represented in relation to the review by her registered migration agent.

Primary claims and evidence

9. The applicant is a single citizen of the United Kingdom, born on 20 September 1983, who came to Australia for the first time in 1990. She remained for 2 months. She returned in 2002 for 1 month. In 2003, she visited for 2 months, before returning to the United Kingdom, where she applied successfully for a student visa and returned on 29 April 2003. She started a course related to her profession at the Queensland University of Technology, which she has since completed.
10. Meanwhile, she continued a career as an actor, singer, teacher, theatrical manager and director of her own company (which she runs with a colleague).
11. The principal matter to be decided is whether or not the applicant has “an internationally recognised record of exceptional and outstanding achievement in” the arts. Evidence submitted with her application included letters of support from Queensland Government bodies, reviews of some of her performances, including on CD, a press article on the establishment of the applicant’s company and its first production, and two pages of snippets from comments and reviews on her work.
12. A Form 1000 was subsequently submitted, signed by the General Manager of the Harvest Rain Theatre Company, Queensland's largest independent theatre company.

Further evidence

13. As the extensive evidence submitted with the primary application did not contain much information regarding the applicant’s international reputation, the Tribunal wrote to her a letter seeking additional information on this and on some other points. The applicant’s response included also a review of her current production, where she is a member of a seven person cast described by the Courier-Mail critic as “a dream team”.
14. The response also confirmed that the applicant had received a Del Arte Award in 2005 as “Leading female Performer” and two Del Arte Awards in 2007 as “Favourite Leading Female Performance”.
15. On the international side, the applicant submitted a copy of a recent invitation to travel to England to perform as the female lead in a recording of a musical by Darren Vallier Musicals, a company which writes and produces musicals, whose work has been performed throughout the United Kingdom and in Canada and Australia. The invitation letter, from Darren Vallier himself, states, among other things: “I have spoken with several directors with whom you have worked with (sic) here in the UK and all agree you are a fantastic performing talent...”
16. There is also a letter of appreciation from the President and Chief Executive of the Legadi Group of Companies of Kuala Lumpur, which refers to her performance in a charity event sponsored by the company. It refers to the performance as “exceptionally awesome, outstanding and extraordinary”.
17. The applicant has supplied no other material on her career prior to coming to Australia. The Darren Vallier letter quoted above reveals that she certainly had one. I conducted an internet search which seems to have been more revealing than the search conducted by the Delegate – it turned up her Del Arte awards, for example. It also turned up a biographical program note in relation to one of her performances in Australia which included the following:

“Naomi first appeared onstage at the age of five and since then has performed lead roles in many productions back in her native England, including GREASE, GODSPELL, ANNIE, THE WIZARD OF OZ, BUGSY MALONE, GUYS & DOLLS, UNDER MILK WOOD, JOSEPH, PYGMALION, A MIDSUMMER NIGHT'S DREAM and WAITING FOR GODOT. She was a principal with Starlite Theatre Group for three years and is also a trained singer, having been involved with nine recording projects as a session vocalist..” (http://home.kooee.com.au/amhornery/achoo/cast.htm)

FINDINGS AND REASONS

18. At the time of application, the applicant held a student visa and did not hold any of the visas mentioned in cl 858211(1). She therefore satisfies the requirements of cl.858211.
19. The applicant has established a very high reputation in Queensland since her arrival and is making plans to extend her work to a wider field. She is clearly not merely a very fine singer, but a fine actor, director and a budding theatrical entrepreneur. She also teaches drama to school students. The evidence cited above clearly establishes that she “has an internationally recognised record of exceptional and outstanding achievement”. The work she did in England before coming to Australia to study is clearly recognised here and her work here has attracted the attention of entrepreneurs in the United Kingdom and Malaysia, at least. She therefore satisfies the requirements of cl.858.212(2)(a)(iii).
20. She has demonstrated that she is still involved in the area of her chosen profession, is still prominent in the area (indeed, has a growing reputation) and appears to have had no difficulty at all securing work. The supporting statements received with her application clearly and strongly indicate that she has been, is and will be an asset to the Australian community. The applicant has turned 18 and has not reached 55 years of age. She is supported by a Form 1000 attested by an Australian citizen with a national reputation in the area. She therefore satisfies the requirements of cl.858.212(2)(b), (c), (d), (e) and (f).
21. Since the applicant therefore satisfies the requirements of cl.858.212(2), I find that the applicant meets the requirements of cl.858.212(1).

CONCLUSIONS

22. For the reasons given above, the Tribunal finds that the applicant meets cl.858.211 and cl.858.212, being prescribed criteria for the grant of a Subclass 858 visa. The matter will now be remitted to the Department for reconsideration.

DECISION

23. The Tribunal remits the application for Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 858 (Distinguished Talent) visa:
    • cl.858.211 of Schedule 2 to the Regulations; and
    • cl.858.212 of Schedule 2 to the Regulations.

Hugh Wyndham
Member Date: 16 September 2008