Hwang (Migration) - [2023] AATA 3808

Hwang (Migration) [2023] AATA 3808 (3 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Hyun Ho Hwang
Mrs Kyung A Lim
Miss Youjeong Hwang
CASE NUMBER:  2109449
HOME AFFAIRS REFERENCE(S):          BCC2019/6576675

MEMBER:Amanda Mendes Da Costa
DATE:3 November 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Distinguished Talent (Class BX) visas for reconsideration with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Migration Regulations 1994.
The Tribunal considers the applications of the second named and third named applicants should be reconsidered on the basis they meet the secondary criteria for the grant of Distinguished Talent (Class BX) visas.

Statement made on 3 November 2023 at 9.17am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – porcelain artist – applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212
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 8 July 2021 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 10 December 2019. The delegate refused to grant the visa on the basis that there was no evidence to demonstrate that the nominator for the visa held a national reputation in the same area of the Arts as the applicant and the applicant therefore did not meet the requirements of cl 858.212(2)(c).
Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicants that it would seek submissions from them toward the end of the Tribunal hearing on any matter they considered relevant to the review.
The Tribunal hearing was conducted with the…

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 Hwang (Migration)

Details

AGLC: Hwang (Migration) [2023] AATA 3808
Case: [2023] AATA 3808
Decision Date: 3 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (class BX) visa, subclass 858, by a porcelain artist. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the arts. The case came before the Tribunal for review of a decision concerning the applicant's eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl. 858.212(2) of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant possessed an internationally recognised record of exceptional and outstanding achievement in the arts, was still prominent in that field, and would be an asset to the Australian community, among other criteria. The Tribunal also considered the requirements for the nomination of the applicant, including the nominator's standing and the form submitted.

The Tribunal's reasoning focused on assessing the applicant's extensive documentation, which included statements, photographs of artwork, awards, and a curriculum vitae. The applicant had presented evidence of achievements in both graphic and visual arts, including numerous international awards and a history of lecturing in art and design. The Tribunal found that the applicant met the criteria outlined in cl. 858.212 of the Regulations.

Consequently, the Tribunal remitted the applications for Distinguished Talent (Residence) (class BX) visas for reconsideration. The direction was that the applicant meets the criteria in cl. 858.212 of Schedule 2 to the Regulations, and the applications of the second and third named applicants were to be reconsidered on this basis.

Orders

Orders of the court

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Background

Background to the litigation

The documentation provided to the Tribunal includes the following:·Applicant’s statement dated 6 August 2023.·Statement of (Grace) Hye-won Lee, dated 6 August 2023.·Photographs of applicant’s artwork and awards.·Applicant’s list of achievements and curriculum vitae.Background The applicant was born in the Republic of Korea (Korea) and was born on 26 March 1970. After completing secondary school in Korea, he obtained a Diploma of and Graphic Design from the Kaywon School of Art and Design and a Bachelor of Arts from the Korea National Open University. After arriving in Australia in 2008 he completed a Certificate III in Printing and Graphic Arts and a Diploma in Graphic Arts (Multimedia) from the Victory Institute in Sydney, NSW. Before arriving in Australia, the applicant was employed in Korea as a Computer Graphic Designer, Design Team Manager and Art Director by several companies providing game and animation services. In December 2011 the applicant gained employment in Sydney, NSW, as a Computer Graphic Assistant Designer by a business providing electrical services. He was employed in that role until 2019. In addition to the above employment history, the applicant been involved in drawing, painting, sculpting, and designing for over 30 years. He was a lecturer in Interior Space Design at Kaywon School of Art and Design (Korea) from 2001 to 2004 and a lecturer in Motion Capture Technology and Application at Sejong Cyber University (Korea) from 2002 to 2005. From 2013 to date the applicant has been a lecturer in drawing, painting, sculpture, and design at the Ace Art and Design School in Sydney, NSW. This school is operated by the second named applicant who is also an art teacher. The applicant has been the recipient of a number of awards for his artwork, including the following:· 2023 Camelback Gallery’s “Faces 2023” International Painting Competition Bronze Award.· 2021 Camelback Gallery’s “Paint My Pet” International Painting Competition Silver Award.· 2020 Camelback Gallery’s “Landscapes and Waterscapes” International Painting Competition Merit Award.· 2020 Camelback Gallery’s Black and White International Juried All Visual Arts Competition Finalist Award.· 2019 Light Space & Time Art Gallery “Nature” International Visual Arts Competition Special Merit Award.· 2019 Art Room Gallery’s “Nature” international Art Competition Second Place.· 2019 Light Space & Time Art Gallery International Art Competition 4th Place in the Paint & Other Media category· 2019 Art Room Gallery “Animals” International Art Competition “Finalist Award”· 2019 Light Space & Time Art Gallery International Art Competition 6th Place in the Overall Category.· 2019 Art Room Gallery’s “Black & White” International Art Competition Merit Award.· 2004 Plaque of Appreciation from Information and Media Department from Jeonju, Korea 1998 Employee of the Year at Eolith (Game & Computer Graphics company).· 1997 3rd Place at Korean Computer Graphics Competition.· 1995 Runner up at Korean Computer Graphics Competition.· 1994 Runner up at Korean Computer Graphics Competition.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl. 858.212(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations). Clause 858.212(2) states: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;(d) would have no difficulty in obtaining employment or in becoming established independently, in Australia in the area; 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.(e) produces a completed approved from 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. For the purpose of this application the applicant has nominated that he is applying for a Distinguished Talent visa based on his achievements in the area of the arts. Although the Nominator has nominated the applicant in the area of the arts, specifically graphic arts[1], the applicant does not refer to a specific area of the arts in his application form in which he has included information about his achievements as both a graphic and visual artist.[1] The Macquarie Dictionary defines graphic arts as drawing, engraving, etching, and other arts involving the use of lines, colour etc. to express or convey ideas on flat surfaces, used especially in illustration and advertising. The applicant has been nominated by Australian permanent resident Hye Won Lee in a Form 1000 (dated 5 December 2019) with an attached statement regarding her opinion of the applicant’s talent as an artist and information regarding her own artistic endeavours as a porcelain artist and teacher. The Tribunal notes that whilst the nominator has nominated the applicant in the area of graphic art, she refers in her nomination statement to his talent as both a graphic and visual artist. In assessing the applicant’s record as an artist, the Tribunal has considered his achievements in both the area of graphic and visual arts.Supporting documentation The documentation provided to the Tribunal includes the following:·Applicant’s statement dated 6 August 2023.·Statement of (Grace) Hye-won Lee, dated 6 August 2023.·Photographs of applicant’s artwork and awards.·Applicant’s list of achievements and curriculum vitae.Background The applicant was born in the Republic of Korea (Korea) and was born on 26 March 1970. After completing secondary school in Korea, he obtained a Diploma of and Graphic Design from the Kaywon School of Art and Design and a Bachelor of Arts from the Korea National Open University. After arriving in Australia in 2008 he completed a Certificate III in Printing and Graphic Arts and a Diploma in Graphic Arts (Multimedia) from the Victory Institute in Sydney, NSW.

Decision

Reasons for decision

Given the above findings, the Tribunal is satisfied that the second named and third named applicants meet the secondary criteria for the grant of a Distinguished Talent (Residence) (Class BX) visa their visa applications should therefore be reconsidered.DECISION The Tribunal remits the applications for a Distinguished Talent (Residence) (class BX) visas for reconsideration with the direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations. The Tribunal considers the applications of the second named and third named applicants should be reconsidered on the basis they meet the secondary criteria for the grant of Distinguished Talent (Residence) (Class BX) visas.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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