Tattoo Artist Considered to Have Been Qualified for a Distinguished Talent Visa
DVDS case revolves around a tattoo artist (‘applicant’) who made an application for the exclusive visa there is available in Australia i.e. the Distinguished Talent (Residence) visa.
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.
Most often, the Distinguished Talent visa gets refused based on a particular legal criterion which is difficult to establish. This legal criterion is contained in clause 858.212 of the Migration Regulations 1994 which requires:
l the applicant to have an internationally recognised record of exceptional and outstanding achievement in the areas involving either a profession, a sport, the arts or academic and research; and
l still be prominent in the area; and
l would be an asset to the Australian community; and
l would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area.
In DVDS, the delegate of the Department of Home Affairs (DHA) refused to grant the visa on the basis that the applicant did not meet the clause 858.212.
The Tribunal remitted the application for a Distinguished Talent (Residence) visa for reconsideration, with the direction that the applicant meets the following criteria
APPLICANT’S ‘DISTINGUISHED TALENT’
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 the Applicant’s business is experiencing growth through increased awareness facilitated by the applicant’s participation in both professional and charitable events.
BACKGROUND FACTS
l 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.
l The Applicant 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.
l The Applicant participates in an event called ‘Let’s Pink Together’ in her capacity as an artist to support women with breast cancer. 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.
TRIBUNAL’S DECISION
The Tribunal took the following into consideration in its decision:
Internationally recognised record of exceptional and outstanding achievement
l The results from the Google search indicated that the applicant is widely known and acclaimed internationally for her work as an eminent tattoo artist.
l 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.
l The applicant has a significant presence on social media, including Facebook and Instagram.
l She has also appeared in magazines and on radio programmes, both in Australia and South America.
l The applicant has also 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.
l The applicant is a member of the Australian Tattoo Association.
Still prominent in the area
l 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.
l 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.
Asset to the Australian community
l 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.
l 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.
l 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.
For all the above reasons, 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.
GETTING ASSISTANCE
If you require assistance or are unsure about your eligibility for the Distinguished Talent visa, please contact one of our highly trained lawyers who have dealt with similar exclusive visas and have had many successful outcomes for the client. If you would like to learn more, simply call one of our lawyers at Agape Henry Crux on 02-72002700 or email us to book in a time at info@ahclawyers.com.
We also speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Spanish and Malay. If these aren’t your language, we can also help you arrange an interpreter.
[1] [2018] AATA 4742 (6 December 2018)