Kizhakkeniyil Prabhakaran (Migration) - [2024] AATA 2967

Kizhakkeniyil Prabhakaran (Migration) [2024] AATA 2967 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pradeep Kizhakkeniyil Prabhakaran
Miss Janaki Sedumath Pradeep
Mrs Saritha Narayanan
REPRESENTATIVE:  Ms Ushass Panicker (MARN: 0324658)
CASE NUMBER:  2308745
HOME AFFAIRS REFERENCE(S):          BCC2016/2264005

MEMBER:Jade Murphy
DATE:5 August 2024
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 first named applicant meets the following criteria:
·cl 858.212(2)(a) of Schedule 2 to the Regulations.

Statement made on 5 August 2024 at 10:17am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – Federal Circuit and Family Court remittal – internationally recognised record of exceptional and outstanding achievement in the arts – painter and Carnatic musician – significant evidence submitted after the visa application – artwork exhibited at the Indian Embassy in Oman and in Victorian Parliament – international media coverage – support from internationally renowned artists – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Zhang v MIMA & Anor [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 Immigration and Border Protection on 22 December 2016 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 applicants applied for the visas on 4 July 2016. The delegate refused to grant the visa on the basis that Mr Pradeep Kizhakkeniyil Prabhakaran (the applicant) did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicants appeared before the Tribunal on 21 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The primary decision record
On 22 December 2016, a delegate of the then Minister of Immigration and Border Protection (the delegate) decided to refuse to grant the applicant a Distinguished Talent Subclass 858 visa. As set out in the primary decision record, the delegate was not satisfied that the applicants met the requirements or cl 858.212(2)(a) of the Regulations, specifically that the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of the arts, specifically as a painter and a musician.
The delegate noted that the applicant had graduated from the Baroda School of Arts, India, in 1998, began his career as a painter, and first sparked public interest in 2001 after an inaugural solo exhibition entitled ‘God of Religion’ in his home state of Kerala. Further solo exhibitions followed before the applicant was invited to exhibit…

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.

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Details

AGLC: Kizhakkeniyil Prabhakaran (Migration) [2024] AATA 2967
Case: [2024] AATA 2967
Decision Date: 5 August 2024

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, which had been refused by a delegate of the Minister for Immigration and Border Protection. The applicant, a painter and Carnatic musician, was found by the delegate not to have an internationally recognised record of exceptional and outstanding achievement in the arts. The decision under review was made by the Tribunal, which subsequently remitted the matter for reconsideration.

The primary legal issue before the court was whether the Tribunal had correctly construed and applied clause 858.212(2)(a) of the Regulations. Specifically, the court had to determine if the Tribunal had failed to consider, in a meaningful way, evidence of the applicant's achievements that arose after the date of the visa application, and whether the applicant possessed an internationally recognised record of exceptional and outstanding achievement in his nominated artistic fields.

The court reasoned that clause 858.212 of the Regulations permits a decision-maker to consider events and circumstances occurring between the visa application date and the decision date. It found that the Tribunal had misconstrued this clause, leading to a failure to adequately consider significant evidence submitted by the applicant regarding his post-application achievements. This evidence included exhibitions at the Indian Embassy in Oman, participation in professional workshops for the Omani government, and media coverage from various international sources, including the United States, United Kingdom, Australia, and India.

Consequently, the court remitted the application for reconsideration by the Department, with a direction that the applicant met the criteria under clause 858.212(2)(a) of the Regulations. If the applicant met the remaining criteria for the Subclass 858 visa, they would be entitled to its grant.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. BACKGROUNDThe primary decision record On 22 December 2016, a delegate of the then Minister of Immigration and Border Protection (the delegate) decided to refuse to grant the applicant a Distinguished Talent Subclass 858 visa. As set out in the primary decision record, the delegate was not satisfied that the applicants met the requirements or cl 858.212(2)(a) of the Regulations, specifically that the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of the arts, specifically as a painter and a musician. The delegate noted that the applicant had graduated from the Baroda School of Arts, India, in 1998, began his career as a painter, and first sparked public interest in 2001 after an inaugural solo exhibition entitled ‘God of Religion’ in his home state of Kerala. Further solo exhibitions followed before the applicant was invited to exhibit paintings amongst other artists in a group exhibition in Delhi, India, in 2004. The delegate stated that as well as working as a freelance painter in India, the applicant was also employed as an artist and graphic designer for various organisations including the Labour India Research Centre and a Jain Temple in Gujarat, India. The delegate explained that the applicant moved to Australia in 2009 and has since exhibited works alongside other artists at several localised events and galleries within Victoria including the Dandenong Art Community, the Noble Park Art Council, the Collingwood Art Gallery and the Chelsea Art Gallery. The delegate noted that some of the applicant’s works have received awards from local art groups including the Trinity Uniting Church, the Dandenong Art Community and the Noble Park Art Council. The delegate considered that whilst noteworthy, these localised events would not necessarily attract those artists with an internationally recognised record of exceptional and outstanding achievement. As a result, minimal weight was applied to these awards when determining whether the applicant’s achievements are measurable to both Australian and international standards. The delegate went on to state that in 2015, the applicant showcased a solo exhibition of some 50 eminent Australian personalities depicted on a single canvas, measuring 50 metres in length and one and a half metres in height. The work which was exhibited at the Glen Eira Town Hall was entitled ‘Pride of Australia’ and is arguably the applicant’s most recognised achievement. The delegate acknowledged that the work drew noteworthy attention. However, the delegate considered that this was in part because of its uniqueness in size and its patriotic subject matter, which sparked much discussion and interest amongst those who viewed it. The delegate did not consider that there was any evidence to indicate that the work itself was highly praised or regarded by renowned artists or experts in the field.

Evidence

Evidence Before The Court

Judge Ladhams found that cl 858.212, properly construed, allows a decision maker to take into account events and circumstances that arise between the date of the visa application and the date of decision. It follows that the Tribunal in the present case misconstrued the clause and, as a result of this misconstruction, failed to consider in any meaningful way the evidence provided by the applicant that addresses circumstances that arose after the application. CONSIDERATION OF CLAIMS AND EVIDENCE 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 The issue in the present case is whether the applicant meets the requirements of cl 858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of the arts, specifically as a painter and a musician. At hearing the Tribunal noted that the delegate’s concerns as set out above in paragraphs 6–14 of this decision and in the primary decision record. The Tribunal, having confirmed the documentary evidence and submissions provided prior to hearing, asked the applicant what he would like to say in response to the delegate’s concerns in oral evidence. The applicant told the Tribunal that prior to arriving in Australia, he was ‘fairly famous’. The applicant drew a distinction between ‘famous’ and ‘popular’ and submitted that often visual artists are famous within the industry but are not widely known as holding a popular status that is usually more reserved for movie stars who have larger profiles. The applicant said that after he arrived in Australia, he started displaying his works in group exhibitions. The applicant told the Tribunal that he received an art prize for this from a local Dandenong organisation. Another of the applicant’s first pieces of work in Australia attracted attention for its unique large-scale size, iconic Australian imagery and that it took approximately one-and-a-half years to complete. The applicant titled it ‘Pride of Australia’ and thereafter it was exhibited in the Victorian Parliament. The applicant told the Tribunal that he played an active role in presenting it to the Victorian Parliament and speaking about the artwork at its unveiling. The applicant provided documentary evidence such as photographs and media articles to support his submission in this regard. The Tribunal accepts the applicant’s documentary evidence. The applicant told the Tribunal that following the media coverage of the exhibition in the Victorian Parliament, in November 2017, the Sultan of Oman invited the applicant to Oman on their National Day to exhibit his artwork at the Indian Embassy in Oman. The applicant explained that the artwork was a celebration of Indian and Omani bilateral relationships. Further to exhibiting his artwork, the applicant stated that he was also invited to conduct professional workshops across four days for the Omani government. The applicant submitted that this was a significant international achievement as no other international artist had ever been invited to have a permanent display of artwork in the Indian Embassy in Oman. The applicant submitted that further evidence of the importance of this was the attendance of an Indian Cabinet Minister who travelled to Oman to inaugurate the exhibition. The Tribunal notes that amongst the documentary evidence provided by the applicant were media articles originating in the United States of America, the United Kingdom, Australia, and India.

Decision

Reasons for decision

As a result, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for Subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the grant of Subclass 858 visas.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:·cl 858.212(2)(a) of Schedule 2 to the Regulations.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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