1407434 (Migration)

[2016] AATA 3613

1407434 (Migration) [2016] AATA 3613 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julian David Clavijo Soto

CASE NUMBER:  1407434

DIBP REFERENCE(S):  CLF2013/216790 CLF2013/216795 CLF2013/216797 CLF2014/66036

MEMBER:Alison Mercer

DATE:24 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 24 March 2016 at 5:06pm

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 7 April 2014 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 10 September 2013. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.858.212(2)(e) and therefore did not satisfy cl.858.212 as a whole.  The delegate noted that cl.858.212(1) required either subclause (2) or (4) to be satisfied.  As subclause (4) was not relevant in the applicant’s case, subclause (2) had to be met.  The delegate found that subclause (2)(e) was not met as the applicant had been nominated by an Australian organisation, the Knox City Council, but that organisation did not have a national reputation in relation to the applicant’s area of talent (being the arts, in particular painting and sculpting).  The delegate noted that although the Knox City Council was actively involved in regular community events and festivals, it had not provided evidence that it had a national reputation in the field of the arts, particularly painting and sculpting.  The delegate further noted that it was not legally possible to substitute a new nominating organisation, as the requirement to lodge a form 1000 nomination by an organisation or individual with a national reputation was a time of application criterion.

3. The Tribunal received a review application from the applicant on 22 April 2014.  It was accompanied by a copy of the delegate’s decision and a statement made on the same date by the applicant.  In summary, the applicant indicated that he had provided alternative nominators, being Australian individuals with national reputations in his fields of the arts, but these were not accepted by the Department, as the form 1000 was completed by Knox City Council and not by the other individuals who were therefore categorised as referees only.  The applicant noted that Vipoo Srivilasa was a prominent national and international ceramic artist, while Daniel Dalla Riva was a director of Uno Australia and a Councillor for the Design Institute of Australia.  The applicant stated that both had national reputations in painting, sculpture and public art and were strongly supportive of his visa application.  The applicant further indicated that his former agent had been provided with 3 possible candidates to act as the applicant’s nominator, but had wrongly selected the Knox City Council, to the detriment of the applicant.  In retrospect, the applicant thought that she may have done this because he was at that time formally employed by the Council on a number of projects as an Art Director.  He also noted that she was out of contact with both him and the Department at the time that his application was being processed.  The applicant requested that the Tribunal treat either Vipoo Srivilasa or Daniel Dalla Riva as his nominator for the purposes of the review.

4. On 15 July 2014, the Tribunal received additional material from the applicant consisting of:

   (a)letter dated 30 June 2014 from Filitsa Giannopoulos of Nino & Pequito, an independent visual arts agency.  She confirmed that the applicant had been working closely with the agency for the last 6 months on 2 major art projects.  She stated that the applicant was one of 4 artists shortlisted for the Project ‘V’ Commission for Crown Casino – Metropol Hotel in May 2014.  His sculpture and installation was the runner up for this project.  Currently, the applicant was working on another concept design with Nino & Pequito for the Metropol Hotel, being a 4 metre art installation for the ceiling and a 5 metre digital artwork that would be included in a foyer refurbishment proposal for the Hotel in August 2014. Ms Giannopoulos stated that she had found the applicant’s art practices to be cutting edge and his ability to work easily in all different art mediums allowed him to produce artwork that always complimented a space and satisfied the client’s requirements.  He was definitely an artist who would be working collaboratively with Nino & Pequito on future art projects;

   (b)letter dated 12 July 2014 from Jacinta Cavalot, Gallery Manager, Metro Gallery.  Ms Cavalot stated that the applicant was one of the most talented artists in the Metro Gallery stable.  The Metro Gallery had been established in 2001 and was one of Australia’s pre-eminent commercial contemporary art galleries.  It was committed to exhibiting collectable indigenous art, contemporary Australian art and work from promising emerging artists.  Since its inception, it had built a reputation on promoting and presenting contemporary Australian art through established artists (such as John Olsen and Kathleen Petyarre) as well as young Australian artists such as Adnate, the applicant, Luke Cornish and Michael Peck.  Ms Cavalot further stated that the Gallery was dedicated to bringing some of the finest international artists to Australia, including world renowned street artists.  She noted that it took a lot of talent, dedication and hard work to achieve a position with Metro Gallery’s stable of artists and the applicant had proven his artistic abilities, as well as displaying personal and professional values and a drive to achieve.  Metro Gallery supported his residency application on the basis that he would be a valuable asset to Australia;

   (c)email from Ms Cavalot containing photographs of Metro Gallery’s Winter Group 2014 show,  including work by the applicant;

   (d)agreements between the applicant and Abu Dhabi Art Hub dated 2 April 2014 and 9 June 2014;

   (e)newspaper coverage from April 2014 of public art work (‘Cubby Pear’) by the applicant used in promotion of public health by the Greater Dandenong Council; and

   (f)brochure for Group Art Exhibition, featuring the applicant, by the Aura Associazione Culturale, April 2014.

5. On 1 October 2014, the applicant advised the Tribunal that he would shortly act as one of the coordinators of the Eden Bochalema Project International Creative Gathering 2014, which would take place in the town of Bochalema in Colombia in November 2014.  He stated that he would be abroad until January 2015 as he would be helping his mother move from Colombia to Costa Rica after the Bochalema festival.

6. On 20 October 2014, the applicant provided additional material in support of his visa application, being:

   (a)flyer for the Eden Bochalema 2014 International Creative Gathering;

   (b)reference letter dated 19 October 2014 from Adam Elliot, animator, supporting the applicant’s permanent residency application; and

   (c)Art Project Agreement between the applicant and Knox City Council for the Stringybark Festival 2014.

7. On 3 December 2014, the matter was constituted to a Tribunal Member.  On 8 December 2014, the Tribunal wrote to the applicant to invite him to attend a hearing on 20 February 2015.  On 29 January 2015, the Tribunal wrote again to the applicant to reschedule the hearing to 6 March 2015 as the Presiding Member was unable to conduct the hearing on the originally scheduled date.  On 11 February 2015, the applicant indicated that he would attend the hearing and nominated several witnesses from whom he wished the Tribunal to take evidence regarding his reputation.

8. On 18 February 2015, the applicant provided a copy of a book by him, featuring his artwork, entitled ‘Present and Somewhere in Between’ and a letter of support from John Olsen dated 26 January 2015.

9. On 2 March 2015, the Tribunal wrote to the applicant advising that the hearing scheduled for 6 March 2015 had been cancelled due to circumstances beyond the Member’s control.  He was advised that he would be notified of a new hearing date in due course.

10. On 1 April 2015, the applicant’s matter was constituted to a new Tribunal Member as the original Member was unable to finalise the matter.  On 17 July 2015, the applicant provided additional material to the Tribunal being:

    (a)updated reference letter dated 10 July 2015 from Jacinta Cavalot of Metro Gallery confirming that the applicant continues to be represented by Metro Gallery and was featured in the ‘Hot to Watch’ exhibition earlier in 2015 and would shortly be exhibiting with another of the Gallery’s leading artists, Carlos Barrios. She stated that the applicant’s art works had received significant interest and he continued to achieve ongoing sales and inquiries about his work; and

    (b)letter dated 4 May 2015 from the Rotary Club of Bayswater confirming that the applicant was awarded a Highly Commended Award for a painting exhibited at the Annual Knox Art Show.

11. On 7 December 2015, the applicant provided the following:

    (a)promotional material for exhibition of the applicant and Carlos Barrios in October-November 2015 at Metro Gallery;

    (b)Clifton’s Art Prize 2015 People’s Choice Winner award (out of 760 artworks) issued to the applicant;

    (c)applicant’s travel itinerary for overseas trip December 2015 to January 2016, including attendance at an Art Festival and Workshop in Thailand to which he was invited by the organisers;

    (d)updated letter of support dated 23 November 2015 from Adam Elliot;

    (e)reference letter dated 10 November 2015 from Anastasia Gladushchenko, Senior Designer/Creative Director of The Artistry, an arts events and interior design company, confirming the applicant’s recent work with the for a Mexican Day of the Dead arts festival in Melbourne;

    (f)copy of listing in the Age property magazine Domain on 7 August 2015 referring to the fact that the applicant is the artist in residence in a new property development in St Kilda; and

    (g)copy of Art Almanac for October 2015, featuring listing for Metro Gallery’s exhibition of the work of the applicant and Carlos Barrios.

12. On 8 December 2015, the Tribunal wrote to the applicant inviting him to a hearing on 10 February 2016.

13. On 15 December 2015, the applicant indicated that he would attend the hearing, and also that he wished the Tribunal to take evidence from Jacinta Chapman (former director of Metro Gallery), Adam Elliot, Jeremy Angerson of Knox City Council and Daniel Dalla Riva.

14. On 28 January 2016, the applicant provided additional material to the Tribunal, being:

    (a)letter of support from Tyson Hunter of Apparition Media dated 20 January 2016, an out of home advertising company that specialises in photo-realistic hand painted advertising murals (and whose clients have included Coca-Cola, Nike, Vans, Bank of Melbourne, Asahi Beverages, Paramount Pictures, XBOX, CUB and Lion).  He states that the company only uses the very best artists with the skill set to achieve a high standard of work, and for this reason, approached the applicant to work with them after seeing his work at Metro Gallery;

    (b)letter of support from Marcia Salmond, Head Designer, Valmont, dated 26 January 2016.  Ms Salmond states that she has worked with the applicant for 2 key projects for Valmont, which is a national design company.  The first project was for Crestone Wealth, in relation to which the applicant applied an art finish to several key meeting rooms, with the result that the CEO of that company engaged the applicant to do more fit out work.  The second project was for Gravity/Valmont, a fit out that involved Valmont’s new Melbourne office, for which the applicant designed a 17 metre feature wall.  She states that they look forward to having an ongoing professional relationship with the applicant;

    (c)letter of support from Roland Fraval of Jeraff, dated 21 January 2016.  He states that he has known the applicant for around 2 years and has worked with him on multiple projects where the applicant has been artist, facilitator and designer.  He states that the applicant is a skilled painter and sculptor but a patient and inspiring mentor to students though Knox Festival’s High School art making project; and

    (d)lease agreement between Caydon St Kilda Development and the applicant for artist studio/gallery for ground floor of ‘STK’ development on St Kilda Road, undated 2015.

15. The applicant appeared before the Tribunal on 10 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jeremy Angerson, Mr Daniel Dalla Riva, Ms Jacinta Chapman and Mr Adam Elliot. The applicant provided additional documents at the Tribunal hearing, including:

    (a)An index of invitations, reference and support letters from nationally and internationally regarded individuals and organisations submitted to the Department with the original application;

    (b)CVs of Daniel Dalla Riva and Adam Elliot and form 1000s completed by them on 10 and 6 February 2016 respectively;

    (c)Letter dated 9 February 2016 from Rebecca Sheahan, Gallery Manager of Metro Gallery, authorising former Gallery Manager Jacinta Chapman to represent the Gallery before the Tribunal in relation to the applicant’s review application; and

    (d)Statement dated 8 February 2016 from the applicant.

16. In this statement, the applicant indicated as follows:

    I am writing with excitement and profound gratitude for being given the opportunity to be before [the Tribunal] today, in order to express the reasons and burning desire from me to wanting to stay in Australia, acknowledging the enormous support and effort of all those who have been in this process since the very beginning.

    I want to continue offering to Australia my passion to achieve greater things to better the wellbeing of others, those who have been less privileged than us.  This is the purpose and direction that fuel my work and life. 

    During future national and international art events, achievements and recognitions, I want to wear the green and gold, I want to carry the name of Australia with honour, pride and gratitude representing the country that has welcomed and nourished the purpose and successful direction of my career and my life.  I want to continue working for a country that has always believed in me, as a person and as an artist, with a sense of belonging since my arrival almost 8 years ago.

    It is mostly thanks to the support, trust and professional assurance from many, many people in this country that my career and my work is highly respected and regarded in a national and global level in various areas of the art industry.  This is why my soul and my heart is in debt to this country, with every single person throughout my career and time being here, with every one of the exceptional Australians who are amongst the greatest in the country and the world in their fields of the arts, who have expressed their support and recognition to my work.  Also, to each of my four witnesses standing next to me today in this hearing in support of my application, offering themselves as my nominators of my process, because they believe in the capacity, potential and purpose of my art and in me as a person, as somebody with strong values who deserves to be here to continue this journey as an ongoing benefit and asset to the Australian society.

    With all on the table and with my heart wide open, I kindly request you to please acknowledge and accept any of the three alternative nominators that I am presenting before you today.  I believe in your capacity to make a decision at your own discretion considering that the 858 Distinguished Talent (Residence) (Class BX) regulations do not confine the possibility of such a request.

    …

17. At the hearing, the applicant confirmed the contents of his written statement of 8 February 2016.  He indicated that he believed that his former migration agent had selected Knox City Council to nominate him in August 2013 because she believed that it would have a good chance of success as it was a government authority and because the applicant was at that time engaged by the Council as an Art Director.  The applicant noted, however, that her advice had seriously affected his visa application due to the delegate finding that the Council was not an organisation with a national reputation.  He pointed out that, as now, he could have asked several different Australian organisations or individuals who clearly did have national reputations in his field to have nominated him, but was not advised that he should do so.

18. The Tribunal noted that the applicant had provided form 1000 nominations from Vipoo Srivilasa, an Australian ceramicist, and Mr Dalla Riva, a fellow of the National Design Institute of Australia, in March 2014 but indicated that its preliminary view was that as cl.858.212 was a time of application criterion, nominations submitted after the visa application was lodged on 10 September 2013 could not substitute for the original form 1000 nomination lodged on behalf of Knox City Council with the visa application.  The Tribunal further indicated that its preliminary view was that, although Knox City Council had an acknowledged reputation in the field of community art, it appeared to be a local reputation, rather than a national one.

19. The applicant queried whether the relevant part of Schedule 1 to the Regulations confined the applicant to relying upon one nominator only.  The Tribunal indicated that its view of the law was that Schedule 1 required that a form 1000 nomination was lodged at the time of the visa application, otherwise the visa application would not be regarded as valid.  When it came to assessing whether the applicant met the requirements for the visa for which he had validly applied, then he was required to meet certain requirements at the time he made the application (‘time of application criteria) and certain requirements at the time of the Department’s (or Tribunal’s) decision (‘time of decision criteria’).  The need to have an approved form 1000 nomination by an Australian individual or organisation with a national reputation in the same field as the applicant was a time of application criterion.  The Tribunal’s view, therefore, was that the structure of Part 858 of Schedule 2 to the Regulations meant that form 1000 nominations lodged after the time of the visa application would not satisfy cl.858.212. Therefore, unless it was satisfied that the original nominator, Knox City Council, had a national reputation in the applicant’s field of the arts, then cl.858.212 would not be met.

20. The Tribunal then took evidence from Mr Jeremy Angerson, Festival and Events Officer of Knox City Council.  He told the Tribunal that he and the Council had a long and continuing association with the applicant, whom he had invited to work with the Council after seeing and admiring his work for the Dandenong Council. He and the Knox City Council were extremely happy with the applicant’s work and when approached to nominate the applicant on behalf of the Council, he was happy to do so.  He did not appreciate that the fact that Knox City Council was a local government organisation would cause problems for the applicant.  Mr Angerson said that the applicant’s then migration agent indicated that there should be no problems.  It had been frustrating for all concerned to realise that this was incorrect, especially since there were other Australian individuals and organisations with clearly national reputations who could have nominated the applicant in September 2013.

21. In response to the Tribunal’s query, Mr Angerson said that in his view, it could be argued that Knox City Council’s reputation exceeded its local community catchment area.  He noted that the Stringybark Sustainability Festival run by the Council is the longest-standing event of its kind in Australia, and that the Knox Candles by Candlelight is second only to the Myer Music Bowl one.  The Council undertakes many state-funded initiatives in the areas of sustainability and public health, and the applicant had worked with the Council on several of these.  Moreover, the Council’s Art program had made significant acquisitions of international works of art.  Mr Angerson said that the fact that the Council had collaborated with the applicant, who had a national and international reputation as an artist, could be said to confer a national reputation on the Council.  The Tribunal indicated that its view was that the Council, as a nominating Australian organisation, was required to have a national reputation in the same field as the applicant, independently of the applicant’s association with it.

1. Mr Angerson said that local councils such as Knox were part of a national dialogue and were conduits for transmitting national policies.  He gave an example the awareness raised of domestic violence by Rosie Batty and its communication through Council iniatives and programs that conveyed national public and social policy.  He also noted that artists with national reputations had performed at Knox City Council events, giving as an example the fact that Katie Noonan and the Australian Royal Naval Band appearing at Knox Carols by Candlelight.

2. The Tribunal then took evidence from Mr Daniel Dalla Riva. Mr Dalla Riva confirmed that (amongst other things) he had been a director of Uno Australia, a multidisciplinary creative agency, when he became involved with the applicant and Mr Angerson of the Knox City Council in 2013/14 to work on a project for the Council’s Stringybark Sustainability Festival (the Herbivore Veggie Bar).  Mr Dalla Riva said that he and Uno Australia were invited to take part, and although the project had a relatively small budget, he and Uno were keen to participate as the Stringybark Sustainability Festival was the largest festival of its kind in Australia and they regarded it (and the Council) as having a national reputation in this field.  Mr Dalla Riva said that he and Uno Australia had a national reputation in the field of design, and were selective about what projects they became involved in, but they considered it to be worthwhile and significant to be involved in the Council’s Stringybark Sustainability Festival.  He noted that the pop-up Herbivore Veggie Bar that he and the applicant worked on was still in use by the Council.  In the meantime, it had been nominated as a finalist in the International Restaurant and Bar Design Awards in the UK (pop-up category).

3. Mr Dalla Riva told the Tribunal that, depending on who one asked, it could easily be argued that the Knox City Council had a national reputation in the field of public art and continued to do so through its initiatives in this area.  Mr Dalla Riva said that Uno Australia had a national reputation in the field of design (including public art) and that he himself did as he was a Fellow of the National Design Institute of Australia.  He said that the applicant was the most talented multi-disciplinary artist that he had ever met and was a unique talent.

4. The Tribunal then took evidence from Ms Jacinta Chapman, formerly of Metro Gallery.  She explained that although she now had a new position as Public Affairs Coordinator with South Eastern Water, she had previously been involved in Metro Gallery for 14 years and was its former Director. She indicated that the current Director had authorised her to give evidence on behalf of the Gallery in relation to the applicant, who was still represented by the Gallery, due to her long standing association with the applicant and the Gallery.

5. Ms Chapman stated that Metro Gallery is a leading Australian gallery with a national reputation.  She said that she met the applicant at a Gallery opening for one of its other artists, Luke Cornish, and after seeing his work, the Gallery invited him to join its stable of artists.  Ms Chapman said that the depth and breadth of the applicant’s work was highly unusual in one of his young age. 

6. Ms Chapman further stated that she disputed that Knox City Council did not have a national reputation, as she believed that its program of public art was recognised nationally. She noted that Victorian local council authorities were collectively regarded as being progressive in the field of public art and gave as examples in addition to Knox City Council, the Dandenong Council and the Galleries in Benalla and Mornington Peninsula.  She further noted that South Eastern Water recognised Knox City Council’s sustainability festival and arts programs as significant channels to raise issues with the public and to act as ‘draw cards’ to raise awareness of issues such as sustainability and public health.  Ms Chapman said that the interlinked fields of sustainability and the arts (particularly through the medium of public art) was an evolving field in Australia.  It was about looking for different ways to engage the public, and public events and arts programs were some of the best ways to achieve this.  In this way, ‘local’ events were part of national programs and policies.

7. Ms Chapman said that it was an honour for Metro Gallery to represent the applicant, and that it would continue to do so whatever the outcome of his visa application.  She described his artwork as ‘show-stopping’ as it had a great capacity to engage with viewers.  She noted that the applicant’s works had been shown alongside those of John Olsen at the Gallery.  She also stated that the applicant had a demonstrated commitment to community and social justice and generally donated one artwork per show to be auctioned for charity.

8. The Tribunal then took evidence from Mr Adam Elliot.  He confirmed the contents of his resume, noting that he had an international reputation in the field of stop-motion animation, writing and sculpture. Mr Elliot told the Tribunal that after he finished his stop-motion animated feature ‘Mary and Max’ in 2009, he was inundated with requests from local artists and animators who wanted to work with him.  The applicant was one of the people who contacted him and when he reviewed the applicant’s work, he assumed that the applicant was an experienced sculptor/animator from somewhere like the Aardman Studio in the UK.  He was surprised to learn that the applicant was only in his 20s as his work was that of someone with considerable experience and feel for the medium.

9. Mr Elliot said that he had employed hundreds of artists (sculptors, painters and animators) over a 20 year career and noted that stop-motion animation is a very specialised field.  People who display significant talent in this area usually relocate overseas to work.  However, he was keen to continue to pursue this line of work in Australia and therefore saw  someone like the applicant as highly valuable.  He indicated that he intended to use the applicant as a lead sculptor on his next feature film. 

10. On the issue of whether Knox City Council could be said to have a national reputation, Mr Elliot gave as an example the St Kilda Film Festival, which he stated had a national, and international, reputation as a pre-eminent film festival for short films.  In his experience, many Councils (such as Port Phillip, which ran the St Kilda Film Festival) ran arts events, festivals and programs whose reputation went beyond their local areas and had national or international reputations. He also noted that he often undertook corporate speaking engagements in Australia and overseas, and had spoken at a function for Yarra Valley Water, after which he understood that their agenda was far broader than water but incorporated sustainability and public art iniatives. 

11. The applicant asked the Tribunal to take into account that Mr Elliot, Mr Dalla Riva and Metro Gallery had now provided 3 new form 1000 nominations for him.  He stated that public art was a broader area than ‘traditional’ art and that it acted as a channel between ideas and policies and people.  He said that this was what he was passionate about and what motivated him to work with public art and public spaces as it was a means of communicating with a wide range of people and affecting them or causing them to think or respond to social and community issues.  He asked that the Tribunal consider recommending that the Minister intervene in his case in the event that it considered that he could not meet the legal requirements for a subclass 858 visa.

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

13. RELEVANT LAW

14. Cl.858.212 provides as follows:

    Time of application criteria

    …

    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 01/11/2003 - LEGEND note]

    (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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant did not claim to have provided specialised assistance to the Australian government in matters of security, and thus the Tribunal finds that cl.858.212(4) is not relevant to him.  The issue is whether he satisfies cl.858.212(2).  As  noted above, the delegate was not satisfied that the applicant met cl.858.212(2)(e) as the delegate found that the Australian organisation providing the approved form 1000 on behalf of the applicant, Knox City Council, did not have a national reputation in the applicant’s area of the arts.

16. The Tribunal has considered the applicant’s argument that nomination forms  completed by Daniel Dalla Riva on 10 February 2016 or Adam Elliot on 6 February 2016, both of whom the Tribunal accepts have national reputations in design/public art and animation and sculpture, could be substituted for the Knox City Council form 1000 to satisfy cl.858.212(2)(e).  However, for the reasons discussed with the applicant at the hearing, the Tribunal considers that the requirement to provide a form 1000 by an Australian person or organisation with a national reputation is required for the visa application to be validly lodged (as required by the relevant part of Schedule 1 to the Regulations) and is a mandatory ‘time of application criteria’ which must be met in order to be granted a visa (as set out in Part 858 of Schedule 2 to the Regulations, specifically under the heading ‘time of application criterion’). In the Tribunal’s view, this legislative scheme requires that an Australian organisation or person with a national reputation in the same field as the applicant has to have provided a form 1000 nomination at the time of the visa application, and one provided to the Department subsequently (as were the forms completed by Mr Dalla Riva and Mr Elliot) would not satisfy cl.858.212(2)(e).  The position would be different if the criterion were a ‘time of decision’ criterion, but it is not.

17. Accordingly, the Tribunal turns to consider whether the form 1000 completed by the Knox City Council meets the requirements of cl.858.212(2)(e); specifically, whether that organisation can be said to have a national reputation in the applicant’s area of achievement.

18. The Tribunal notes that the Department’s Procedures Advice Manual (PAM3) provides the following guidance in relation to assessing nominations for subclass 858 visas:

    …

    Status of nominator

    To meet the Schedule 2 criteria, the form 1000 must be completed by an Australian citizen, Australian permanent resident, an eligible New Zealand citizen, or an Australian organisation having national reputation relevant to the area of the applicant’s achievement and testifying to the applicant’s record of achievement. For Schedule 1 requirements, refer to If applying in the “internationally recognised achievement” category.

    National reputation

    Under policy, ‘national reputation’ means highly regarded throughout Australia. A reputation confined to one state or region would not be considered national. Note: The reputation must be in the same field as the applicant’s. It is also expected that the nominator’s testimony be representative and recognised as such, of all Australian participants in the relevant field.

    In assessing the status or standing of the nominator, consideration should be given to factors similar to those used in determining the standing of the applicant. Regardless of whether the nominator is an individual or an Australian organisation, consultation with the relevant peak body is recommended, particularly if there is any doubt as to the standing of the nominator. Care should be taken in such circumstances to ensure the privacy of the parties involved. In the absence of an Australian peak body, an appropriate international body may be consulted.

    Meaning of ‘Australian organisation’

    In the absence of policy guidelines, the term ‘Australian organisation’ may be given a broad interpretation.

19. In Re Drake No 2[1] the Administrative Appeals Tribunal (AAT) was exercising a discretionary power (deportation). Justice Brennan, sitting as the President of that Tribunal, stated:

    In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.[2] 

    [1] (1979) 2 ALD 634.

    [2] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.

20. While the Tribunal cannot deprive itself of the freedom to give policy no weight when exercising a discretionary power in a particular case, there are substantial reasons which favour cautious and sparing departure from Ministerial policy, particularly if Parliament had scrutinised and approved the policy.[3] As Brennan J stated in Re Drake No 2:

    Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.[4]

    [3] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 644.

    [4] (1979) 2 ALD 634 at 639. In Hneidi v MIAC [2010] FCAFC (Spender, Emmett and Jacobson JJ, 5 March 2010), the Court stated at [49] that these remarks were confined to a discussion of the place of Ministerial policy in the review of administrative action.

21. However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[5] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[6]  But where the policy is more narrow or restrictive than the legislation, it will not be a lawful policy and reliance on it is likely to result in a jurisdictional error.[7]  In this case, the Tribunal has had regard to the above policy but only to the extent that it is consistent with the terms of cl.858.212(2)(e) in determining whether as a matter of fact, Knox City Council has a national reputation in the same field as the applicant.

    [5] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.

    [6] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.

    [7] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64].

22. The Tribunal considers that a threshold issue is defining the field in which the applicant claims to demonstrate distinguished talent. The Tribunal is satisfied that the field is ‘the arts’ in general terms, but notes that the applicant described himself in his visa application as a painter and sculptor in a broad range of materials with a focus on fine arts practice and public art applications in civic and community spaces. At the hearing, the applicant and his witnesses confirmed this and spoke in more detail about his commitment to, and achievements within, the emerging field of public art. The Tribunal considers it appropriate to focus on this aspect of the applicant’s record, although noting that his reputation is not confined only to this aspect of the arts and that he was described by Mr Dalla Riva as a multi-disciplinary artist.

23. In relation to whether the Knox City Council could be said to have a national reputation in public art, the Tribunal has had regard to the delegate’s finding that, as per the Department’s PAM3 guidelines extracted above, that a body with a state or regional reputation could not be said to have a national reputation. On the face of it, the Knox City Council is clearly a local organisation.  However, this does not automatically mean that its reputation in relation to public art is confined to the Knox City Council area.  As suggested by several of the applicant’s witnesses, it is possible for a regional or local body to have a national reputation, such as the St Kilda Film Festival, which the Tribunal accepts has a national (if not international) reputation as a short film festival, despite being run under the auspices of the Port Phillip Council, an ostensibly local organisation.

24. The Tribunal notes that the PAM3 guidelines refer to seeking the advice of the peak body in the same field if there is doubt as to the national reputation of the nominating organisation. This would clearly be possible and appropriate in a field such as sport, where there is generally a peak Australian association for a specific sport that could be consulted.  However, such a peak body is far less readily identifiable in the field of the arts. To the Tribunal’s knowledge, there is no peak body in Australia for public art. The Tribunal considers that this reflects the fact that most public art is commissioned by local councils. 

25. The Tribunal notes the evidence given at hearing by Mr Angerson (of Knox City Council), Mr Dalla Riva, Mr Elliot and Ms Chapman that Knox City Council’s reputation in the field of public art and sustainability was not confined to its local area, and that it had a well-regarded public art program and a sustainability festival (the Stringybark Festival) that was the oldest in Australia. From a review of the Knox City Council’s website, the Tribunal is satisfied that the Council has a Public Art Policy that was endorsed in 2013, has made purchases for it in 2014/15 and has a dedicated Community Arts Officer (Mr Angerson). Mr Angerson gave evidence at the hearing that the Council had purchased some international works of art through its Public Art Program.  The Tribunal accepts this to be the case, and it further accepts that the Council’s Public Art Program appears to be innovative and progressive. However, there is no convincing evidence before the Tribunal to date that it has achieved a national reputation. To the best of the Tribunal’s knowledge, it is not as well known as (say) the Bendigo Art Gallery, which, although a regional gallery, has partnered with the Victoria & Albert Museum in the UK to mount exhibitions that are visited by people from interstate as well as Victorians and Bendigo residents. Similarly, the Tribunal is not satisfied that it has a reputation comparable to the St Kilda Film Festival, run by the Port Phillip Council, the reputation of which is national. The Tribunal is unable to be satisfied on the evidence before it that the Knox City Council has a national reputation in the field of public art (though the Tribunal accepts that potentially it may do in future).

1. The Tribunal acknowledges the Council’s reputation in the field of sustainability and accepts that in this field, the Council’s reputation is more than local and it considers that the Stringybark Sustainability Festival (established in 1985) could be said to have a Victorian, if not national, reputation, particularly giving weight to Mr Dalla Riva’s evidence that his firm chose to be involved in this Festival because of their perception of its reputation throughout Australia.  However, after careful consideration, the Tribunal is unable to satisfied that the field of sustainability is the same field as the applicant’s record of achievements, being predominantly public art.  While the Tribunal accepts that there is some cross over between these fields, and that this may in fact be increasing (noting that Ms Chapman’s evidence that the crossover between public art and sustainability was an evolving area), the Tribunal considers that sustainability is only one of the areas in relation to which public art may be utilised but it is not the only, or even the main, one. Accordingly the Tribunal is ultimately unable to be satisfied that the Knox City Council has a national reputation in the field of public art (as opposed to sustainability).

2. In light of this finding, the Tribunal finds that cl.858.212(2)(e) is not satisfied, and it is unnecessary for the Tribunal to go on to consider the remaining criteria for the visa: as a mandatory criterion for the visa is not met, the Tribunal must affirm the decision under review.

3. The Tribunal has had regard to the applicant’s request that the Tribunal consider referring the matter to the Minister for consideration under s.351 of the Act.  Section 351 confers on the Minister the discretionary power to intervene to grant a person a visa in the event that that person’s Tribunal review is unsuccessful.  The Minister has published guidelines, to be found on the Department’s website, setting out the kind of unique or exceptional circumstances which might warrant Ministerial intervention: >

   The Tribunal notes that these guidelines are not exhaustive.

4. The Tribunal is satisfied that the applicant’s case should be referred to the Minister for consideration pursuant to s.351. It considers that there is ample and compelling evidence that the applicant is of exceptional cultural and artistic benefit to Australia, that he has both a national and international reputation in his artistic field(s), is well established in them and that he has a high level of commitment to pursuing his art in Australia. The Tribunal notes also that he has lived and worked largely in Australia for approximately 8 years and is well-integrated into the artistic community here, and into the Australian community in general. In particular, he has demonstrated a significant commitment to participating in programs and events that foster community engagement and participation. 

5. Finally, the Tribunal considers that the application of cl.858.212(2)(e) has led to an unfair or unreasonable result in the applicant’s case, given that if not for the fact that consideration of cl.858.212(2)(e) is confined to the time of application, the applicant could have lodged nominations by either Mr Dalla Riva or Mr Elliot, both of whom the Tribunal accepts have national reputations in the same field of the arts as the applicant.  Had this been possible, it is likely that the applicant’s visa application would have been successful. The Tribunal further notes that both he and the Knox City Council appear to have been misguided by their former migration agent in this regard, in circumstances where a nomination by Mr Dalla Riva or Mr Elliot, or another Australian with a national reputation in the applicant’s field, could have been lodged with the visa application.

   DECISION

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

   Alison Mercer
   Member