1510051 (Migration)

[2016] AATA 4179

1510051 (Migration) [2016] AATA 4179 (27 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Timothy O'Neal Springs

CASE NUMBER:  1510051

DIBP REFERENCE(S):  BCC2015/141735

MEMBER:Miriam Holmes

DATE:27 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa

Statement made on 27 July 2016 at 8:48am

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 9 July 2015 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 14 January 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements in cl.858.212 as the delegate was not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts as required by cl.858.212(2) and that no claims were made or evidence provided in respect of the alternative requirement in cl.858.212(4).

3. The applicant appeared before the Tribunal on 15 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rachel Taylor, Executive Director at The Production Company.

4. The applicant was represented in relation to the review by his registered migration agent, however the representative did not attend the hearing. In the hearing response the representative indicated that the representative would not be attending the hearing and the applicant stated that he consented to the hearing proceeding without his representative being present.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements in cl.858.212(2), specifically whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.

7. The Act and the Regulations set out the qualification criteria that a person must establish at the time of the visa application and at the time of decision to be eligible to be granted a visa. A person who applies for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa must establish that they meet the requirements set out in Part 858 in Schedule 2 to the Regulations. The central issue in dispute in this case is whether the applicant meets the requirements in cl.858.212 as at the time of the visa application

8. The requirement in cl.858.212 is a time of application requirement. Cl.858.212 states as follows:

   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.

9. The Tribunal has regard to the policy in PAM3 as set out in the delegate’s decision record. However, the Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. The Tribunal notes there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

   [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

   [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168 and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55], He v MI…

10. The Tribunal also had regard to the relevant case law in assessing whether the applicant meets the relevant criterion.

11. In Zhang v MIMA [2007] FMCA 664 at [36 – 38], the Federal Magistrates Court held that 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. Once the record of achievement is identified, the question then is whether it amounts to one which is of exceptional and outstanding quality.

12. In Gaffar v MIMIA [2000] FCA 293 at [19] and [20] the Federal Court considered the phrase ‘exceptional record of achievement’ in relation to cl.805.212 (an earlier skilled residence visa class). In that case, the Court noted that in determining whether the visa applicant has a ‘record of exceptional and outstanding achievement’, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary. It is not required that the applicant be a ‘living treasure’. The circumstances that will meet this requirement will vary across different professions and activities as some will require far greater levels of knowledge and skill by a visa applicant to rise above the ordinary and the merely competent.

13. The applicant submits that he has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. The applicant states that he is internationally acclaimed. The Tribunal made the following findings regarding the applicant’s record in the arts based on the documentary evidence and the oral evidence of the applicant and the witness at the hearing.

14. The applicant was born in 1988 in the United States of America and is aged 27 years.

15. The applicant is an artist in the performing arts. The applicant has trained in the classical voice and performed as an artist in opera and he has also performed as an artist in musical theatre as he has acting, dancing and singing talents. He also has undertaken artistic roles as an actor. In addition, the applicant has undertaken modelling assignments.

16. In 2005 and 2006 the applicant won first place at the National Association of Teachers of Singing competition. In 2009 the applicant won third place for the Harlem Opera Theatre voice competition. In 2011 the applicant won first place for the Leontyne Price classical voice competition. The applicant has not received any internationally recognised awards, such as awards on Broadway (e.g. Tony awards), or off Broadway awards or any Australian performing arts awards. The applicant states that awards do not indicate that a person is in the upper echelon of their profession, for example Leo Dicaprio only won an Oscar in 2015 despite years as a well-regarded actor.

17. Between 2006 and 2010 the applicant attended the Manhattan School of Music in New York City for his Bachelor of Music on full scholarship in classical voice. His teacher Maitland Peters writes in support of the application for the distinguished talent visa. He notes that the applicant has always been the top of this Class and performed all over America as well as in Europe. The applicant stated that he studied and was awarded a Bachelor of Music in the Classical voice in 2010 at the Manhattan School of Music in New York City. Whilst a student the applicant also performed in a number of productions, discussed further below.

18. In 2008 during workshops of the Parable of the Sower for the New York City Opera, in New York the applicant performed various roles. The workshops were to assist in scripting and choreographing the anticipated production. The production was due to open in 2008 but the New York City Opera closed and the production did not open.

19. In 2008 the applicant performed the USA national anthem for the New York City Knicks at an NBA basketball game played at Madison Square Gardens in New York City. The applicant obtained this opportunity by reference through a friend.

20. In 2008 the applicant was a cast member in the 75^th Anniversary European tour production of Porgy and Bess performed in various venues across Eastern Europe. During that tour he primarily played the role of Jim (a supporting role) in most venues including, the Polish National Opera in Warsaw Poland, the International House of Music in Moscow Russia, the Mikhailovski Theatre in St Petersburg Russia, the Thessaloniki Open Air Theatre in Thessaloniki Greece, the Badminton Theatre in Athens Greece, the Latvian National Opera in Riga Latvia, and the Kuressaare Castle Opera house in Kuressaare Estonia. The applicant also played the role of Mingo in Porgy and Bess in Szeged, Hungary for the 25^th Anniversary Open Air Festival and he also played this role when the lead actor was unwell in Estonia. The applicant was the understudy for the role of Jake and went on a few times in this role when the main actor was sick. This tour was over 6 – 7 months, with a 1 month break. The applicant stated that he got this role through a referral. The applicant states that the tour through Europe has been the highlight of his career in Europe.

21. During the 2008 European tour he worked with Phillip Boykin, a professional bass baritone singer and award winner including Tony award, Drama Desk award and 2012 Theatre World award for outstanding Broadway Debut amongst others.  Mr Boykin played the role of Crown in the production of Porgy and Bess. Mr Boykin notes that the applicant was an outstanding student at the school and he acquired the skills and ability to be a professional performer. He notes that he honestly believes that the applicant would be a tremendous asset to the Australian arts community and he believes that the applicant would be the person to add to a list of top performers attending amazing schools.

22. In the summers of 2007 and 2008 the applicant performed at an annual opera festival, Centro Studi Lirica Festival in Nova Feltri Italy.  The applicant stated that he attended the festival two years in a row. These performances were organised through the Manhattan school who selected those students who were on full scholarship or in the upper echelon of the school. He was paid for these performances.   

23. In January 2009 the applicant was a singer at Carnegie Hall as part of a choir of approximately 30 vocalists for Mozart’s Coronation Mass.

24. In 2009 the applicant also undertook a modelling assignment with Nylon magazine.

25. In 2010 the applicant was part of the ensemble in La Boheme for Dicapo Opera for the New York City Opera.

26. The applicant was accepted into the prestigious Juilliard School for a Masters in Classical Voice course, however he only attended for three months and then left to tour Europe in the production of Porgy and Bess.

27. The Tribunal has listed a number of productions below. The applicant gave oral evidence that most of the productions had a short run of a few months, although later in evidence he stated that when he gave the Tribunal the approximate run of these productions he may also have included the rehearsal period as part of the run period.

28. In 2011 the applicant performed a range of roles off Broadway and in various cities in the USA. The applicant was a dancer (and singer) in the ensemble in the production of “Mama I Want to Sing!” which was an off Broadway musical in New York. He also performed in the production of Show Boat as a stevedore (supporting role) and was the understudy for the principal role of Joe for the Opera Naples in Florida. That show had a run of approximately 2 months. In 2011 he played the role of Bongo in an off Broadway musical Benny the Baboon in New York at the Manhattan Rep.Theatre. That show had a very short run of 2 months. He performed the role of Mereb (principal role) in the musical Aida  for the Shenandoah Music Theater production company, in Shenandoah Virginia.

29. In 2012 the applicant played the role of Duane (supporting role) in the musical Hairspray at the Show Palace Theatre Hudson in Florida. That show ran for 3 -4 months.  In 2012 the applicant played the role of Zachariah (lead role) in Riptide at the Free Fall Theatre in St Petersburg Florida. That show was not a musical but involved acting and had a three month run.

30. In 2013, the applicant toured through the USA for about 10 weeks as a singer with Grammy award-winning jazz musician Wynton Marsalis. The tour was called “Abyssinian A Gospel Celebration”. During this tour he performed at ten concert locations throughout the USA including the UNC Chapel Hill Memorial Hall in North Carolina, Chrysler Hall in Virginia, the Kennedy Centre in Washington, the Saenger Theatre in New Orleans, the Long Centre in Austin, Texas, the Kaufmann Centre for the performing arts Helzberg Hall in Kansas City Missouri, and the Rose Hall at Jazz at the Lincoln Centre in New York. The applicant was a member of the 74 member choir, although he had featured solos on a number of occasions. He was one of 3 bass singers who had a featured solo role.

31. Mr Wynton Marsalis, the managing artistic director of jazz at Lincoln Centre and the Director of jazz studies at the Juilliard School, also provided positive comments in relation to the applicant. He confirms that he worked with the applicant during the 2013 National tour of the Abyssinian mass. He notes that the work performed included a 74 voice choir that was commissioned to celebrate the 200^th anniversary of the Abyssinian Baptist Church. He knows that he found the applicant to be both a joy to work with and a unique talent. He comments that the applicant has developed great relationships with directors and fellow artists and is well-liked and respected.

32. In 2013 the applicant played the role of a Doo- Wop Singer, along with three other cast members, in the musical production of the Book of Love. The four singers performed as a quartet, although each had solo performances. The applicant states that the roles of Doo Wop singers were principal roles. This production was performed at the Show Palace Dinner Theatre, Hudson in Florida. In the review in the Tampa Bay Times provided to the Tribunal, the critic notes that the Doo Wop boys, along with a lead, do a smash rendition “On Broadway” and speaks glowingly of the singing of various songs by the quartet (Doo Wop boys) throughout the show. 

33. In 2013 the applicant played the role of a prisoner in the opera production of Aida at the Metropolitan Opera New York, NYC opera. The performances were spread over a period of 10 weeks, on and off. It was not a full time role. The applicant states that this was the highlight of his career in the USA to date.

34. In late 2013 and early 2014, over three to four months, the applicant played the role of Fred (principal role) in Smokey Joe’s Cafe at the Ocean City Theatre company in New Jersey. This was the applicant’s last role in the USA before travelling to Australia.

35. Between 2013 and 2014 the applicant was an actor/ model for an internet and print commercial advertisement campaign for GAP for its international Back to Blue campaign.

36. On 19 January 2014 the applicant was granted a working and holiday subclass 462 visa. The applicant arrived in Australia on 22 January 2014.

37. In 2014 the applicant performed his own show, a tribute to Sammy Davis Jr titled “I’ve Gotta Be Me” at the Sydney Cabaret Festival. The show covered the life of Sammy Davis Jnr. This performance was at a very small cabaret venue seating 50 -70 people. He organised to perform this show in his previous visitor visits to Australia, when he was asked to put the show together. The show ran over a month.

38. In 2014 the applicant performed the role of stevedore (supporting role) in The Production Company’s production of the musical Show Boat at the State Theatre in Melbourne. This show ran for 4 – 5 months. He stated that his agent submitted an audition and after he did the audition he was given the role.

39. There were reviews of this production in the Herald Sun and by Simon Paris theatre critic. In the Herald Sun review there is no specific mention of the applicant although there is reference to “The stevedores’ accompanying harmonies are sublime.” In the Simon Paris review there is no specific mention of the applicant although the critic makes positive reference to the capella harmony section of “Ol’ Man River” and otherwise the performance of the applicant was not mentioned in either review. Under s359AA the Tribunal invited the applicant to comment on the omission from him being named in the reviews and the only reference to his singing. In response the applicant stated that it was just 2 reviews and not all productions are reviewed and they did mention the stevedore’s voice – so he was mentioned. He noted that the international artist Sia has written many songs for other performers but she is not mentioned. Similarly, he performed at the Boxing Day test and there were no reviews of that performance. He said not being mentioned in a review did not equate to not being distinguished or in the upper echelons. The critic did mention the quality of his singing.

40. During the hearing the Tribunal spoke with Ms Taylor, Executive Director at The Production Company. She stated that she came to meet the applicant a few years ago when he auditioned for a role in the Show Boat production. She stated that they needed an African American cast. She said that Tim was new to the production company and he gave an excellent audition and he was new to Australia and they were not familiar with him or his work. They were impressed with his talent at the audition and cast him in a featured ensemble role and they are happy to work with him again and again. He has not worked for The Production Company since Show Boat. She stated the role of stevedore was a featured ensemble role, which sang in the opening of the show and was crucial to the story. The applicant sang as part of a quartet, including the principal lead Joe and two other cast members. When asked if the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts, she said yes, and then stated that in Australia we have very few African American artists of his calibre and would absolutely welcome to be able to support his application to stay and work in the arts in Australia. The Tribunal observed that the applicant did not appear to have had a lead role in a major production with a major production company or in a major venue in Australia or the USA and she replied that he had performed off Broadway and some of the venues in the USA were very large in Florida and New York, not everybody performs as a leading artist at that stage of their career but she would still say that he is an exceptional talent. She stated that on behalf of the Production Company, herself, Mrs Jeanne Pratt and Mr MacKenzie Forbes, they look forward to working with him again. When they first met him they discussed how wonderful it was to have the applicant with his calibre to work and stay in Australia. She stated that there was a great deal of excitement and anticipation about the applicant starting to work. The Production Company have not cast him since Show Boat and she noted they only do three productions a year and at auditions they have 800 – 900 persons audition and only 20 persons will get cast – they are spoilt with choice. 

1. In the production of Show Boat the applicant worked with Mr Mackenzie- Forbes, Artistic Director of The Production Company. He states that the applicant is a remarkably talented artist who possesses a fine voice and was a terrific success in Show Boat. He notes that the show was difficult to cast and the applicant was an outstanding African-American and an ideal for the company to cast in the show and they were delighted with his talent and his performances in the musical. He notes that the applicant is a fine performer and makes a real contribution to the Australian theatre, television and film industry.

2. In 2014 the applicant played the roles of Jim Conely and Newt Lee in The Collective production of Parade at Forty Five Downstairs Melbourne. This production was by a new Australian performing arts group called The Collective. This show had a run of two months and the venue seated approximately 150. The applicant states he had a principal role.

3. This production of Parade was also the subject of a number of reviews. In the review of Parade in Standing (Inn)ovation the reviewer states that the applicant amongst others gives a standout performance leading this cast and it is clear that there are some big leading roles in these talented actors’ futures. In the review prepared by Corel Drouyn in Stage Whispers in September 2014 she notes that “Timothy Springs, a new name to me, possesses “a sit up and take notice” voice of rich quality and is perfect as the black janitor who lies his way through the trial.” In the review by Simon Paris music theatre critic on 21 September 2014 there is a picture of Mr Springs, along with five other photos of the production and he comments as follows “Timothy Springs uses a sly smile to add to the intrigue of likely murderer Jim Conley”, no other mention is made of Mr Springs in the review. In the review of the production of Parade by Reuben Liversedge there is a photo of Mr Springs as the Jim Conley although there is no mention of the applicant in the review, but there are references to other cast members in the lead roles and reference to standout performances by others. In the Arts Review of Parade the reviewer notes that “Timothy Springs, of Rumblin’ and Rollin’ floored the audience and prompted the greatest applause of the night.” The Tribunal asked the applicant about the comment from one reviewer that the applicant was a new name to her, which indicated that he did not have a reputation in the industry. The applicant responded that it was only one critic and maybe she did not have knowledge about him and indicated this may reflect on her as a critic. The Tribunal indicated that after reading the reviews and the description of his role as a janitor it did not appear he had a principal role in the production and he replied there were a lot of lead roles and he had 5 songs to perform. He agreed Leo and Lucielle were the lead roles but he was also a lead role as the subject of the trial.

4. In February and June 2014 the applicant also undertook modelling assignments with DNA magazine and MINC Magazine respectively.

5. In 2015 the applicant played the role of Brooks (the butler) a supporting role in the musical production of Grey Gardens at the Seymour Centre in Sydney from 20 November to 12 December 2015, plus a rehearsal period. In the Australian Arts review to the opening of the new production in November 2015 the applicant is listed as a cast member but no other reference is made to his performance in the production. He stated that he was the confidante of the two leading ladies. In the be BWW review dated 21 November 2015 by Jade Kops, she refers to the role of the applicant as butler and there is a photo of the applicant with the main character in the production. There is no other reference to the applicant’s performance in the production.

6. In December 2015 the applicant performed the national anthem of the West Indies at the commencement of the Boxing Day test at the MCG. This was performed to a large crowd and to a large television audience. The applicant states this is the highlight of his career in Australia to date.

7. On 1 April 2016 the applicant was formally offered a role in the ensemble of the Australian production of the Book of Mormon to be performed at the Princess Theatre during the Melbourne run of the play with an opening in January 2017. The applicant states that he has been offered a role in the ensemble but he will have a supporting role and this will be confirmed once rehearsals commence.  The Tribunal noted that the memorandum of understanding refers only to the applicant being in the ensemble, but the applicant states that he will be offered a supporting role once rehearsals commence.  Whilst production is envisaged to be in Australia for approximately 3 years the Tribunal notes that the memorandum of understanding offered to the applicant is only for the period of the run of the play in Melbourne and he will be credited as a member of the ensemble.

8. In early 2016 the applicant commenced working as a teacher at the Centre Stage School in East Brunswick Victoria. The applicant teaches voice and musical theatre and one of his students has been offered a role in the upcoming musical Kinky Boots. The owner of the school Mr White states that he has seen the applicant’s work in Australia and can vouch that he is in the upper echelon of the art circle in Australia. Mr White states that he sought out the applicant after seeing him perform in the Parade. He states that the applicant received raving reviews and was a star of the production. Mr White refers to the applicant’s international connections by his training in New York and his work in Europe and to his American credits. He considers this gives the applicant international recognition. Mr White refers to lack of African-Americans in the arts circle in Australia with his unique skill set, being the triple threat. He noted that it was important to have actors with his arts background and cultural background to demonstrate Australia as a progressive country and that the applicant would make a valuable would be a valuable contribution to Australia and would be an asset to the Australian arts circle and community.

9. In 2016 the applicant was offered the role of Jake in the production of Side Show to be performed between 23 September and 16 October 2016 at the Hayes Theatre in Potts Point. The applicant states that Jake is a lead role in the production. The venue has a seating capacity of 111 seats.

10. Whilst the applicant has been in Australia he has also undertaken other work, including as a bartender and he worked at Crown Towers as a concierge on and off.

11. Due to the applicant’s current visa status and having no right of re-entry to Australia, the applicant declined an offer to perform the West Indies national anthem in New Zealand at a New Zealand vs. West Indies cricket match, during the last summer season. He also declined an offer to return to the USA to perform in a Chorus Line production in the role of Ritchie at a venue he had previously performed at.

12. The Tribunal also received a positive reference from Su-Elise Nash, a member of a UK group known as Mis – Teq. Mis -teq has had three top 10 double platinum albums and seven consecutive top 10 singles with chart topping success on the UK singles chart and in Europe. Ms Nash states that she has known the applicant for several years and is aware of his performances in Europe and the Americas and witnessed his performance in Grey Gardens in Australia and refers to his rendition of the West Indian national anthem at the MCG in December 2015. She states that she can attest to the applicant’s distinguished talent and that he is a “triple threat” their which is a very rare thing in the industry. She refers to his training at two of the most highly regarded musical schools in the world and that these special institutions have given the applicant skills and abilities to not only perform around the world, but also influence and teach performers around Australia the ropes to be an international artist. She states that Australia would gain a true artist and that he is the perfect role model for the performing arts industry in Australia, the UK, America and Europe.

13. The Tribunal also received a positive reference from Simon Burke, a well –known Australian actor and former President of the Actors Equity in Australia and Vice President of the International Federation of Actors. He states that he has worked with the applicant and seen him perform many times and considers the applicant would be an invaluable addition to Australia’s diverse performing community. He also referred to a performance by Mr Springs of the USA national anthem at a function in in Perth in 2014 in front of a number of dignitaries and described it as breath-taking.  He refers to the applicant’s unquestionable talent and experience and that he is tenacious, hard-working, and ambitious and fun to work with and that in a relatively short- time the applicant has impressed many in the Australian industry with each of these qualities.

14. Mr R Hogdman, a well –known artistic director, both in Australia and internationally, states that he had the pleasure of directing the applicant in Show Boat. He states that the applicant is extremely talented and a versatile performer with a fine singing voice and a natural, connected ability as an actor. He states when they were auditioning for the show they were more than delighted when the applicant “turned up”. He noted that the applicant was the only African –American they could find with sufficient talents for the piece. He refers to the difficulty in casting African –Americans in Australia and as Australia becomes more multicultural, Australian drama increasingly calls for performers of different ethnic backgrounds. He notes that there are only a handful of African American stage performances in Australia and none can sing as well as the applicant and only one or two are close in acting ability. He states that the theatre, television and film industry desperately need good African- American performers and the applicant would be an enormous asset.  He states that the applicant is supremely talented and would make a mark on our culture.

15. Ms J Ambrose, the applicant’s agent states that in a short period of time the applicant has established himself in the Australian musical theatre scene and is a popular young man with excellent employment opportunities and the applicant is a “triple threat” who demonstrates a high level of professionalism. She also states that the applicant fills a void and he is a true African/American talent with extremely high skill level of singing and dancing and also an actor.

16. The Tribunal also received a reference form Councillor Forster and she notes amongst other things that he is a supremely talented singer and also notes that given the scarcity of African American performers in Australia he offers a unique skill set and brings authenticity of roles and has a beautiful singing voice and can sing in several languages.

17. During the hearing, the Tribunal raised its concern that it may not be satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. The applicant replied that he does have international recognition and he is in the upper echelon of his field. To say he is not would be incorrect because of his references, including Mr Marsalis. He referred to the references from international artists Mr Burke, Ms Forster and Ms Nash from Mis-teq. These people recognised that he is very talented and recognised in his field. Ms Nash, a friend saw him in Grey Gardens and the Sammy Davis Jnr show.  The Tribunal notes that it accepts that persons internationally recognised, who are well-known, have written references for him, however this may not mean that he himself is internationally recognised as having a record of exceptional and outstanding achievement. The applicant referred to his migration agent’s written submissions and noted that each case should be assessed artist by artist and he is in the upper echelon of his field by having these references by people who have seen him perform and this is recognised by those who have performed with him. He states that his referees have the knowledge and ability to say if he is in the upper echelon of his field and they have stated that he is.  He also stated that he had performed in large venues in the USA and had played lead roles in the USA. He also referred to performing at the Metropolitan Opera and performed in the biggest theatres in Europe and referred to performing the national anthems in front of large crowds. 

18. The Tribunal has carefully considered the various aspects of the applicant’s careers and comments from others in the industry, including the critics; however, on balance the Tribunal is not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. The applicant has performed in primarily supporting roles in Australia, Europe and the USA and has had few roles as a principal or lead in a musical, opera or play. Similarly, he had a supporting role in the USA national tour with Mr Marsalis in a choir of approximately 74 persons, where he was a featured vocalist. The applicant has performed in front of large sporting crowds on two occasions in the USA and Australia, although these crowds were primarily in attendance to watch a large sporting event and the applicant’s performance was part of the pregame ceremony. The Tribunal accepts that the applicant has performed with well-known artists, including Mr Marsalis, Mr Burke, Mr Fordham and Mr Boykin and the Metropolitan Opera, however these performances have been in a supporting capacity not as a central artist in the relevant production. Similarly, the applicant has performed in some famous venues, but again these were primarily in supporting roles not as the lead in the relevant production. The applicant has had some lead roles, e.g. Side Show, the Sammy Davis Jnr Show and Parade in Australia and Fred and Bongo, however these have been relatively few and in smaller venues for relatively short runs.  The applicant has also had other significant roles. For example as a Doo-Wop singer and a stevedore but these have been performances as part of a quartet, rather than as a soloist only. Further, the Tribunal took into account that the applicant obtained such roles in Show Boat at an audition with others, not due to any previous reputation or knowledge by the producers or directors of the applicant.

19. The Tribunal accepts that the applicant is highly talented in singing especially, but also dancing and acting and that he is a “triple threat”. However, the Tribunal does not consider that being highly talented and having references from other well-known international artists is sufficient to establish that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. Further, the Tribunal had regard to the comments regarding the applicant’s capacity in Australia to perform the roles of African American characters and the shortage of persons with the requisite skill levels to play these parts in various areas of the arts, however, the Tribunal does not consider that the applicant’s attributes in this regard to meet this skills shortage demonstrates that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.   The Tribunal appreciates that the applicant would be an attribute to the Australian arts scene given his talents, however, after considering all the matters above, the Tribunal is not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.

20. Therefore the Tribunal is not satisfied that the applicant meets the requirement in cl.858.212(2)(a).

21. There were no claims made or evidence produced that the applicant meets the requirements in c.858.212(4).

22. For the reasons set out above, the Tribunal is not satisfied that he applicant meets the requirements in cl.858.212.

    DECISION

23. Therefore the Tribunal affirms the decision to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

    Miriam Holmes
    Senior Member