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

1. 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).

2. 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).

3. Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments.

4. 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.

5. 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.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The applicants were not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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; 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.

    (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.     

11. 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.

12. 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.

13. 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

14. 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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. Save for the computer graphics competitions, the above awards were given in respect of online art competitions, conducted by art galleries overseas and primarily in the United States of America.

    Nominator

21. In the form 1000 (dated 5 December 2019) Ms Lee attests to the applicant meeting the requirements of cl 858.212(2) of Schedule 2 to the Regulations.

22. The statement and curriculum vitae provided for Ms Lee indicates that she is a porcelain artist engaged in an art form where overglazed China paint is used to colour and draw on ceramics. The techniques used are similar to those used by visual artists and involve the mixing of paint colours which are applied to a porcelain surface.  After the application of paint, the ceramic item is subjected to kiln firing to set the colour.

23. Ms Lee has been the NSW President of the Australasian Porcelain Art Teachers Association (APATA) since 2021.  This organization promotes porcelain art in Australia and contributes to the development of porcelain artists through exhibitions, conventions and seminars and organizes cultural exchanges between regions.  In addition to NSW, the Association is active in Queensland, Victoria, South Australia, and Western Australia.  The members of APATA in each state hold exhibitions and conventions every two years on a rotating basis.  Although the Covid-19 pandemic has led to the previous cancellation of international events, the Association is currently planning to host an international convention in Sydney in the near future.

24. Ms Lee’s works have been published in porcelain magazines in countries including the Unites States of America, Canada, Hong Kong and Japan and she has consistently exhibited at the Sydney Royal Easter Show where she had been awarded numerous prizes for her porcelain painting.

25. In addition to the classes, she conducts at her studio in NSW, Ms Lee is involved in presenting online lectures to students in other Australian states and to student overseas in Hong Kong and Japan.

    Applicant’s evidence at hearing

26. The Tribunal discussed the above information with the applicant, and he confirmed the above details regarding his education, employment history and achievements as an artist.

27. He told the Tribunal that he had been interested in drawing from early childhood and completed a large portfolio of drawings in order to gain entry to Arts course after completing his secondary education.  He chose to also study graphic arts because it was useful in gaining employment in Korea.  His history of drawing had been very helpful in his employment in the area of graphic arts over a 30-year career.

28. The applicant told the Tribunal that whilst he had a long career as a graphic artist in Korea, he had also forged a successful career in Australia as a visual artist because of his continued interest in drawing.

29. The Tribunal questioned the applicant about his reasons for coming to Australia in 2008.  In response, he said that when his daughter (the third named applicant) was in Year 3 of primary school the stress of the education system in Korea and the pressure to succeed placed on her caused his daughter to emotional difficulties and a lack of enjoyment in her schooling.  The applicant explained that in Korea, children from as young as five years are required to study hard and that studies in English, maths, science, and the Korean language finish between 6pm and 7pm.  His said his daughter found it difficult to cope with this study and cried very night after school.

30. The applicant told the Tribunal that he and his wife (the second named applicant) decided to leave Korea and relocate to Australia because they believed this country offered a more suitable educational system for their daughter who would be able to cope with the studies here.

31. The Tribunal discussed with the applicant his reasons for undertaking studies in printing and graphic arts after arriving in Australia.  He explained that he completed these courses because he was advised that these qualifications would assist him in obtaining permanent residency.

32. The Tribunal also questioned the applicant about his employment in Australia.  In response, the applicant explained that he had been employed by a company providing graphic art services to customers until 2019 when he ceased this employment.  Since then, he has been assisting his wife in operating an art school in Sydney.

33. The Tribunal discussed with the applicant, his art awards.  He explained that since arriving in Australia, he had been entering online art competition which are organized by galleries overseas, primarily in the United States of America.  These competitions are open to contestants world-wide, and the competition is intense.  The applicant said that be believed that his achievements in these competitions show that he has an internationally recognised record of exceptional and outstanding achievement as a visual artist.

34. The applicant told the Tribunal that he had several students who were guided by him to achieve nominations in various well-known art awards in NSW.  In 2018 one of the applicant’s student’s body of work (visual arts) for his HSC studies was selected for ARTEXPRESS[2] and another of his Higher School certificate (HSC) students Design and Technology major project was nominated for SHAPE 2018[3].  He further stated that in 2019 one of his students was a finalist and two others received Honourable mentions in the Young Archie competition.  In 2023 in an international art award, one of the applicant’s students received a Merit Award and two others were finalists. A fourth student was nominated in 2023 in the ARTEXPRESS competition.

    [2] ARTEXPRESS is an art exhibition which showcases HSC Visual Arts Examination artworks from across New South wales (NSW).

    [3] SHAPE is an art exhibition presented by the Museum of Applied Arts and Sciences at the Powerhouse Museum in association with the NSW Education Standards Authority and featured art works drawn from three HSC subjects: Design and Technology, Industrial Technology, and Textiles and Designs.

35. The applicant said that he considered the excellent results achieved by his students in various art competitions demonstrated his outstanding abilities as a teacher of visual arts.

    Evidence of the second and third named applicants at the hearing

36. The second and third named applicants confirmed the evidence of the applicant.  They told the Tribunal that together with the applicant, they are involved in teaching at the art academy operated by the second named applicant.  Their students are aged from early primary school years to 18 years and the art forms taught include drawing, painting, printing, and ceramics.

37. They also said that the applicant devotes a considerable amount of time each day (after work) in drawing and painting in order to enter online art competitions.

38. The third named applicant explained to the Tribunal that she had completed her primary and secondary education in Australia and had subsequently successfully undertaken a degree in interior design for which she received a scholarship which had funded her studies.

    Findings re Clause 858.212(2)

39. Clause 858.212(2)(a) requires that applicant has an internationally recognised record of exceptional and outstanding achievement in the areas of graphic and visual arts.

40. The Tribunal notes that the concept of “internationally recognised record of exceptional and outstanding record of exceptional and outstanding achievement” on cl 858.212(2)(a) is not defined in the Regulations.

41. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to this subclause.

42. According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined as meaning: “1. forming an exception or unusual instance; unusual; extraordinary; 2. Extraordinarily skilled, talented, or clever”.  It also defines the word ‘outstanding’ to mean “1. Prominent; conspicuous; striking; 2. That continues in existence; that remains unsettled, unpaid etc.; 3. Standing out, projecting; detached; 4. That resists or opposes.”

43. The Tribunal notes that the Courts have held in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary.  Notably in Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J (as he then was) observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’. The Tribunal also observes, however, that in Gaffar’s case the Court was dealing with the wording of the then cl 805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession, or activity. The wording of cl 858.212(2)(a) requires the applicant in this case to have an ‘internationally recognised record of exceptional and outstanding achievement’. Therefore, Gaffar’s case has limited application in the current context.   The Tribunal acknowledges however, that while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

44. The Tribunal has also had regard to the consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425 as apposite. The Tribunal notes the comments of Kiefel J (as she then was), at [49]-[50]:

    Exceptional circumstances in general terms, are those circumstances which are unusual or out of the ordinary.  But the term is also one which may have a wide operation.  Factors affecting a person, and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted unless the limitation appears from the relevant statutory provision.

45. Regarding this application the Tribunal considers that the statutory context does operate limit or qualify the otherwise ‘wide operation’ of the word insofar as cl 858.212(2)(a) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

46. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phase ‘internationally recognised record of exceptional and outstanding achievement’.

47. Whether the applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in each individual case. 

1. The Tribunal has considered the personal circumstances of the applicant.   It accepts that his achievements as a graphic and visual artist in both South Korea and Australia are ‘unusual’ and ‘out of the ordinary’ and demonstrate that he has achieved excellence as an artist.  Accordingly, the Tribunal finds that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.

2. The Tribunal is therefore satisfied that cl 858.212(2)(a) is met.

3. Clause 858.212(2)(b) requires that the applicant is still prominent in the area. In the case of Henry Dolphin [2004] MRTA 757 the visa applicant was playing cricket at a district level and achieving strong results.  Whilst the Tribunal accepted that the applicant was not playing at the highest level in cricket in Victoria, it found that he was playing in a well-regarded competition and was an important and well-known player in that competition.  On that basis, the Tribunal found that the applicant was still prominent in that area.  In the more recent decision of Vandort (Migration) [2018] AATA 1538 (Vandort’s case) in which the applicant was a Sri Lankan cricket player, the delegate refused the application on the grounds that the applicant was not still prominent in the field.  The Member in Vandort’s case made the following observation:

   19.      During the hearing the representative posited that the test to determine prominence is not the ‘Shane Warne test’; being that even individuals not familiar with cricket must know that the name and identity and associate the individual with the sport, as they would with the mention of Shane Warne’s name for instance.  But rather, the test is that the applicant is recognised as prominent by those within the field and for cricket would be officials, other players, peak bodies/associations, media, fans and so forth.  The Tribunal agrees that the ‘Shane Warne test’ is not the correct method to measure prominence.

   20.      In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ’stands out’ in his field and is ‘important’ and well-known” by others within his sport.

4. In the case of the applicant in this case, it is clear from the information before the Tribunal that the decision in Vandort’s case is apposite to the applicant in this review and the approach taken by the Member in that case should be applied to the applicant’s circumstances in this case.  The Tribunal accepts that the applicant ‘stands out’ and is ‘important’ within the area of the arts and particularly in respect of graphic and visual arts.  Although he may not be as famous as far as the public is concerned, he has a prominence in the area of the arts, given his success in graphic art competitions in South Korea and international painting and drawing competitions.

5. Accordingly, cl 858.212(2)(b) is met.

6. Clause 858.212(2)(c) requires that the applicant would be an asset to the community.

7. The Tribunal is satisfied that the applicant’s contribution to teaching young artists and the achievements of his students in the ARTEEXPRESS and SHAPE exhibitions and Archie competition indicate that he is an asset to the community. Accordingly, he meets cl 858.212(2)(c).

8. Clause 858.212(2)(d) requires that would have no difficulty in obtaining employment or in becoming established independently, in Australia in the area nominated by him. In this case that is the area of cricket. The evidence before the Tribunal is that at the time of application the applicant had gained employment as a graphic artist, and he continued in this position for approximately eight years. He has subsequently obtained employment, working as a teacher in the second named applicant’s art school. Accordingly, the Tribunal is satisfied that he would have no difficulty in obtaining employment or in becoming established independently, in Australia, as an artist and cl 858.212(2)(d) is met.

9. Clause 858.212(2)(e) requires that the applicant has produced a completed form 1000.

10. The Tribunal notes that the Department’s guidelines in PAM3 provide guidance in respect of what constitutes a national reputation for the purpose of cl 858.212(2)(e). This provides that a ‘national reputation’ means highly regarded throughout Australia. A reputation confined to one state or region would not be considered national.

11. However, the Tribunal observes that whilst it may be guided by policy, it is not bound to follow it.  Whether the nominator has a ‘national reputation’ is a question of fact to be determined on their individual circumstances and where appropriate to the extent the policy is inconsistent with the Regulations, the Tribunal is required to depart from it.

12. The Tribunal is satisfied that the Nominator’s position as the NSW President of APATA, the activities of the organization in other Australian states and the depiction  of her artistic works in publications overseas, indicates that she has a national reputation in the area of the arts and particularly as a porcelain artist.

13. Although the applicant is a graphic and visual artist, the Tribunal is satisfied that the drawing and painting techniques undertaken by the Nominator in her ceramic work indicate that she has a national reputation relevant to the area of the applicant’s achievements in drawing and painting.

14. Accordingly, the Tribunal is satisfied that the Nominator meets the requirements of cl 858.212(2)(e).

15. Clause 858.212(2)(f) requires that if the applicant has not turned 18, or at least 55 years at the time of application – he or she would be of exceptional benefit to the Australian community. The Tribunal is satisfied that given the applicant’s age (49 years) at the time of application; these provisions do not apply to him.

    Conclusion

16. As the applicant meets all of the applicable requirements in cl.858.212(2) and accordingly meets cl.858.212.

17. 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

18. 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.

19. 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 Costa
    Member