Barone (Migration) - [2023] AATA 3649

Barone (Migration) [2023] AATA 3649 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Riccardo Barone
CASE NUMBER:  2013049
HOME AFFAIRS REFERENCE(S):          BCC2018/3152142

MEMBER:Antonio Dronjic
DATE:13 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl 858.212 of Schedule 2 to the Regulations.

Statement made on 13 October 2023 at 2:35pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the arts – pianist and composer – international composition competition winner – international festival performances and compositions for films – employment in Australia – relevant qualifications – still prominent – asset to the Australian community – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Gaffar v MIMA [2000] FCA 293
Prabhakaran v MICMA [2023] FedCFamC2G 357
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Springs v MICMSMA [2020] FCCA 371
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Zhang v MIMA [2007] FMCA 664
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2020 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 August 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant applied to the Tribunal on 20 August 2020, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
The Tribunal noted the Department’s uploaded unrelated electronic file and, on several occasions, requested the Department submit a copy of its file related to Mr Barone’s application for a Subclass 858 visa. As of the day of this decision, the Department has failed to do so.
On 21 August 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of cl 858.212 of the Regulations.
On 4 September 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A. On 18 September 2023, the applicant submitted a bundle of notes relating to his work in music.
According to the primary decision record, the applicant has been nominated for the visa by Australian citizen Mr Sankey Thomas Gene. He did not attend the hearing. The applicant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barone (Migration)

Details

AGLC: Barone (Migration) [2023] AATA 3649
Case: [2023] AATA 3649
Decision Date: 13 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Barone concerning his application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The primary dispute revolved around whether Mr. Barone met the criteria outlined in clause 858.212(1) of Schedule 2 to the Migration Regulations 1994, specifically subclause (2)(a), which requires an internationally recognised record of exceptional and outstanding achievement in the arts.

The Tribunal was required to determine if Mr. Barone possessed an internationally recognised record of exceptional and outstanding achievement in the arts, if he remained prominent in his field, and if he would be an asset to the Australian community. The Tribunal also considered the interpretation of the timing of these criteria, referencing the Federal Circuit and Family Court of Australia decision in *Prabhakaran v MICMA* which held that criteria under clause 858.212 were not exclusively time-of-application matters and allowed for consideration of circumstances arising between application and decision.

The Tribunal reasoned that the applicant's extensive evidence, including numerous letters of support from various artistic and community organisations, academic qualifications, competition wins, and performances for films, demonstrated an internationally recognised record of exceptional and outstanding achievement in the arts. The Tribunal concluded that Mr. Barone met all applicable requirements under clause 858.212(2).

Consequently, the Tribunal remitted the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with a direction that Mr. Barone meets the criteria in clause 858.212 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Distinguished Talent (Residence) (Class BX) visa is a permanent visa for persons 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 specialised assistance to the Australian Government in matters of security. The issue in the present case is whether the applicant meets the requirements of cl 858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl 858.212 of Schedule 2 to the Regulations. The application was refused on the basis that the applicant did not meet the requirements of cl 858.212(2)(a) and therefore cl 858.212. This clause relevantly provides: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; andNote 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.(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. The applicant has not made any claims in relation to cl 858.212(4). The applicant’s claim depends on whether he can satisfy cl 858.212(2)(a)(iii) of Schedule 2 to the Regulations. At the outset, the Tribunal notes that this is a time of application criteria. However, In Prabhakaran v MICMA,[1] the Court held that this did not connect grammatically to the terms of cl 858.212 and that the text of the clauses under the subheading did not support any general conclusion that the criteria in that part spoke exclusively to matters which must be satisfied at the time of application. Rather, cl 858.212 allows a decision‑maker to consider events and circumstances that arise between the date of the visa application and the date of the decision.[1] Prabhakaran v MICMA [2023] FedCFamC2G 357 at [56].Internationally recognised record of exceptional and outstanding achievement

Decision

Reasons for decision

As the applicant meets all of the applicable requirements in cl 858.212(2), the Tribunal finds that the applicant meets the requirement in cl 858.212(1) and accordingly meets cl 858.212 as a whole.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the applicant meets the criteria in cl 858.212 of Schedule 2 to the Regulations.Antonio DronjicMemberAttachment A: Document List·Letter from The Garage International signed by Shakti dated 25 August 2023.·Letter from Newcastle Fringe signed by Philip Aughey dated 24 August 2023.·Letter of support from James Coleborne dated 25 August 2023.·Letter of support from Emma Luxardo dated 24 August 2023.·Letter from ClassicaViva record label signed by Stefano Ligoratti dated 27 August 2023.·Letter of support from Peter Maddern dated 25 August 2023.·Letter from Smokescreen Productions signed by Tim Marriott dated 24 August 2023.·Letter of support from Dr Stefano Bona dated 28 August 2023. ·Letter from The Anglican Parish of St John the Evangelist signed by Barbara Murray dated 30 August 2023.·Letter from the Consul of Italy in South Australia signed by Adriano Stendardo dated 24 August 2023.·Letter from Adelaide Nepalese Cricket Association signed by Bijaya Joshi and Santosh Adhikari undated.·Letter from Metro Bass Band INC (SA) signed by Robert Coombe undated.·Letter from Alla’s Music Studio signed by Alla Guberman dated 24 August 2023.·Letter from Young Regional Conservatorium signed by Wendy Brooks dated 30 August 2023.·Letter from Steph Cooke MP, Member for Cootamundra dated 28 August 2023.·Letter from The Office of the Mayor at Temora Shire Council signed by Cr R B Firman OAM dated 30 August 2023.·Letter from Murrumburrah Public School signed by Renee Ford undated.·Letter of support from Leisa Dunford from Young Regional Conservatory dated 30 August 2023.·Letter of support from Amanda Isbester from Young Regional Conservatory dated 30 August 2023.·Letter of support from Ingrid Owens from Young Regional Conservatory dated 30 August 2023.·Letter of support from Clan Muller from Young Regional Conservatory dated 30 August 2023.·Letter of support from Trevor Taylor dated 23 August 2023.·Letter of support from Eduardo Ruiz undated.·Translated and untranslated copies of certificate of attendance at Raimondo Sorrentino Civic School of Music dated 12 June 2014.·Letter of support from Ann Carr-Boyd dated 1 September 2023.·Translated and untranslated certificate of attendance from Associazione Musicale dated 10 January 2005, 6 June 2014.·Translated and untranslated concert programs dated 28 July 2007 and 29 July 2007.·Translated and untranslated certificate of attendance from Music Conservatorium San Pietro A Majella dated 6 June 2014.·Translated and untranslated certificate from Federico II University of Naples signed by Dr. Mauro R. Fario dated 21 July 2008.·Translated and untranslated certificates from City of Acerra Raimondo Sorrentino Civic School of Music dated 12 June 2014.·Translated and untranslated poster for Riccardo’s Silence dated 30 October.·Translated and untranslated poster for Music as a Therapeutic Tool dated 6 November 2020.·Letter of support from Giulia Pellini dated 28 August 2023.·Images of Mr Barone playing music undated.·Translated and untranslated poster for Piazza Bellini in Music concert dated 21 June 2002.·Translated and untranslated copies of concert program undated.·Translated and untranslated copies of article titled: ‘The soundtrack main theme overview of Ethan 2068 in Rome’ dated 19 June 2009.·Translated and untranslated concert program undated.·Translated and untranslated invitation from Neapolitan Association of Cultural and Environmental Heritage dated 10 January 2003.·Image of Mr Barone playing at 891 ABC Radio dated 31 March 2016.·Images of Amore E Morte show listing at Adelaide Fringe undated.·Flyer and program for ‘Tuesday on Flinders’ presented by Flinders Street Baptist Church dated 7 May 2019.·Letter of support from Rosemary Beal dated 1 September 2023.·Two letters from St Joseph’s school Grenfell signed by Katrina McGrath dated 24 and 31 August 2023.·Photo of award from Associazione Musica Antica e Contemporanea dated 29 September 2004.·List with links and images of Mr Barone’s work 4 September 2023.·Letter of support from Fabrizio Fiorentino undated.·Translated and untranslated certificate of attendance from City of Gesualdo Italian Institute of Jesualdian Studies dated 2-4 June 2012.·Translated and untranslated certificate of participation from Music Conservatorium ‘San Pietro a Majella’ of Naples dated 16-19 January 2006 and 28 May 2012.·Translated and untranslated certificate from Tivoliclassica International Classical Music Festival 10th Edition dated 29 July 2007.·Certificate of participation for Riverina Piano Pedagogy Conference dated 25 May 2021.·Letter of support from Marta Markowska, former manager of Radio Italia Uno 87.6FM manager undated.·Translated and untranslated letter from Agglutination Cultural Association signed by Cafaro Carmela Anna dated 24 August 2020.·Letter of support from Fringe Mount Gambier signed by Louise Adams, artistic director dated 29 August 2023.·Letter from Australian Guild of Screen Composers signed by Stephanie Li.Attachment B: Document List·Email and reply to the Canadian army dated 23 September 2013.·Confirmation of ongoing employment from Young Regional Conservatorium signed by Dr Wendy Brooks undated.·Letter of support from Louise Grant dated 21 September 2023.Attachment C: Document List·List of Mr Barone’s awards and achievements, concerts, letters from peers and international artistic bodies, academic qualifications, various articles and future plans undated.

Ratio Decidendi

Legal Principle Established

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