1416738 (Migration)

[2016] AATA 4000

1416738 (Migration) [2016] AATA 4000 (2 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Pakistan Association of Australia Inc

VISA APPLICANTS:  Mr Syed Nadeem Raza
Ms Shazieh Nadeem
Mr Syed Ali Jee Hassan Raza
Miss Syeda Sukaina Nadeem Raza
Mr Syed Muhammad Ali Shanawar Raza

CASE NUMBER:  1416738

DIBP REFERENCE(S):  CLF2013/302715

MEMBER:Rania Skaros

DATE:2 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Distinguished Talent (Migrant) (Class AL) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria:

·cl.124.211(2)(c) of Schedule 2 to the Regulations.

Statement made on 02 May 2016 at 11:03am

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 17 September 2014 to refuse to grant the applicants Distinguished Talent (Migrant) (Class AL) Subclass 124 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 5 December 2013. The delegate refused to grant the visas on the basis that the first named visa applicant (the visa applicant) did not met cl.124.211(2)(c) of Schedule 2 to the Regulations as the delegate was not satisfied that the visa applicant would be an asset to the Australian community.

3. The visa applicant’s nominator, the Pakistan Association of Australia, applied for review of the delegate’s decision. The review applicant was represented in relation to the review by its registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the visa applicant meets the requirements in cl.124.212(2)(c).

6. The visa applicant applied for the Distinguished Talent visa on the basis of his achievements in the arts, namely as a Noha reciter and writer.  Noha, as described in the supporting material provided, is a form of Shia religious poetry.

7. The delegate in this case, in considering the supporting evidence provided and in relying on departmental policy, considered that the visa applicant’s settlement would provide betterment to the Australian Shia Muslim community but indicated there was insufficient evidence that the visa applicant would be considered an asset to Australia as a whole. The delegate noted that the references provided were all from the Shia community and considered the absence of references and statements from outside of the Australian Shia community further indicated that the visa applicant’s settlement in Australia would potentially be limited to the followers of the Shia faith and its community groups.

8. On review, the Tribunal received further supporting evidence and detailed submissions to which it has had regard. In the submissions, the representative argued, in reference to the Court’s reasoning in the case of Wolseley v Minister for Immigration & Anor [2006] FMCA 1149, that the departmental policy, by imposing the further requirement that benefit be to the Australian community “as a whole” is a misinterpretation of the provision and that introducing the concept of the Australian community “as a whole” could constitute and error of law. It was further submitted that in a diverse society such as Australia many may not have an interest in music, or as relevant to this case, in recitation poetry, and as such these members of the community may not see a benefit in having people with artistic talents in their midst. It was submitted that the Court in Wolseley, in referring to the four areas of the regulations in which a person can have record of exceptional and outstanding achievement, noted that it would follow that a benefit to one group within a category is capable of having a flow on effect to the Australian community at a broader or more societal level. The submissions also referred to a number of Tribunal decisions in which persons with highly specialised talents, including a cricket player and Buddhist spiritual leader, were found to be an asset to the Australian community.

9. It was further submitted that the visa applicant’s art of recitation of religious poetry is focused on spreading love, harmony and peace, and is not limited to Shia followers or Islam, rather this art is open to anyone who is interested in it and would like to achieve peace of mind and courage to go through hard times in attending the recitation. It was also submitted that if it is acknowledged that the visa applicant’s settlement would provide betterment to the Australian Shia Muslim community, then consequently he will be an asset to the Australian community as a whole.

10. It was submitted that fierce conflicts within different Muslim factions and groups happen around the word from time to time, including in Australia, and that the visa applicant will deliver a message of love and harmony and bring peace through his unique art of recitation and skills, not only among the Shia community but among other communities as well, because the Muslim community in Australia is not an island unto itself, but has numerous links and relationships with other Australian communities. It is submitted that having a distinguished religious reciter reside in Australia will be of great benefit to the Australian community and will promote ethical conduct, peace, harmony and cooperation between people in a multicultural society.

11. It was noted that the visa applicant can speak in Urdu, Arabic, Farsi, Panjabi, Sindhi, French, English and other languages, which makes him a reciter in almost every major language spoken in Australia. It was noted that the visa applicant has regularly visited Australia for years and has been an inspiration for the youth from various multicultural backgrounds belonging to the Islamic faith and that the visa applicant’s exceptional talent makes him a good role model for youth.

12. It was submitted that the visa applicant has a commitment to charity work, including a family run shelter house for homeless children and street kids overseas, for which he has received international recognition, and that he plans to establish a shelter in suburb of Campbelltown in outer Sydney for children and women victims of domestic violence.

13. The Tribunal has considered the representative’s legal submissions and although the case of Wolseley was concerned with a different provision concerning the phrase ‘exceptional benefit to the Australian community’, the Tribunal acknowledges the argument being made and accepts that in requiring the visa applicant to be an asset to the Australian community “as a whole” is effectively introducing an additional criterion.

14. In assessing the whether the visa applicant would be an asset to the Australian community, the Tribunal has had regard to the totality of the evidence before it, including the further supporting information  provided to the Tribunal, such as the large number of letters of support, media reports and news articles regarding the visa applicant’s profile and community work, covers for albums produced by the visa applicant, international recognition and awards received by the visa applicant, photographs of the visa applicant’s attendance and performances at community events, links to video clips available online, invitations for the visa applicant to perform at various events and numerous flyers for his performances.

15. The Tribunal has considered the representative’s submissions regarding the visa applicant being an asset to the Australian community and is satisfied that the submissions made are largely supported by the evidence before the Tribunal.

16. The numerous letters of support from various non-profit organisations in Australia and overseas attest to the applicant’s international reputation as an exceptional and highly respected Noha reciter. A common theme in most of these letters of support is that the visa applicant’s recitations promote peace, harmony and unity, and that his recitations are enjoyed by communities from different backgrounds and cultures.

17. The visa applicant was in receipt of a lifetime achievement award in the British Parliament and it was indicated in many of the supporting references that he was the first ever Noha reciter invited to perform in the British Parliament. The supporting letters indicate that the visa applicant, because of his international standing as a world renown reciter, is influential and plays a positive role in the community by speaking out against terrorism, and promoting peace and harmony among various religious groups. The supporting letters also indicate that the visa applicant would inspire young people to achieve their potential in the arts.

18. The Tribunal also gives weight to the letters of support from Australian Members of Parliament and from the Hon John Dowd AO QC.

19. The Hon John Dowd AO QC was a State Member of Parliament for 16 years, three of which he was the Attorney General of New South Wales. He is also a former Justice of the Supreme Court of New South Wales and was the Chancellor of the Southern Cross University. He has also held a number of appointments in Australian and internationally. In his letter, John Dowd indicated that in his time as a State member and Attorney General he spent a large part of his time dealing with members of ethnic communities, particularly the Islamic community. He is aware of the significance of Noha poetry as part of the minority Shia community from Pakistan and considers the visa applicant to be a distinguished intellectual who has developed the form and presentation of Noha poetry and distributed it in numerous languages. He states that the visa applicant’s philosophy has greater practical use in our society, other than just Islam or particularly Shia Islam. He states that the visa applicant’s message is one of peace and harmony, which has greater consequence than just those who are members of the Islamic faith and that there is a greater awareness, because of the problems of the world, of non-Muslims in aspect of Islam and the various facets of the Islamic faith.  He states that the philosophy that the visa applicant espouses is of considerable intellectual and academic consequence well beyond Islam and he supports the visa applicant’s application on the basis that the visa applicant’s specific discipline has wider application to the Australian community.

20. The Tribunal also gives weight to the letter from the federal member for Werriwa, Mr Laurie Ferguson MP. Mr Ferguson, who has a large number of residents from the subcontinent in his electorate, supports the visa applicant and says that he has a message of peace and harmony that is of great practical use in Australian society. Mr Ferguson indicates that the applicant’s proficiency would not be limited to Pakistani Shias but that his broad message of tolerance is of value to a wider spectrum of Australians.

21. The Tribunal has also had regard to the photographs of various events at which the visa applicant has performed, including the fundraising initiatives he has been involved in and notes the invitations for him to participate in interfaith gatherings in Australia.

22. The evidence before the Tribunal strongly indicates that the applicant will contribute to the betterment of the Australian community socially and culturally.

23. The Tribunal is satisfied on the totality of the evidence that the applicant would be an asset to the Australian community.  The Tribunal accordingly finds that the first named visa applicant satisfies cl.124.211(2)(c).

24. Given the above, the appropriate course is to remit the application to the Department for consideration of the remaining criteria for the grant of the visa, including the criteria in respect of the secondary visa applicants.

    DECISION

25. The Tribunal remits the application for Distinguished Talent (Migrant) (Class AL) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria:

    ·cl.124.211(2)(c) of Schedule 2 to the Regulations.

    Rania Skaros
    Member