Kizhakkeniyil Prabhakaran (Migration) - [2018] AATA 3876

Kizhakkeniyil Prabhakaran (Migration) [2018] AATA 3876 (5 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pradeep Kizhakkeniyil Prabhakaran
Mrs Saritha Narayanan
Miss Janaki Sedumath Pradeep
CASE NUMBER:  1622591
DIBP REFERENCE(S):  BCC2016/2264005
MEMBER:Sheridan Lee
DATE:5 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Distinguished Talent (Residence) Class BX visas

Statement made on 05 September 2018 at 3:00pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement as a painter and a Carnatic musician – applicant established a music school in Australia – prominent exhibitions of work – local community recognition of the applicant’s painting collection – time of application criteria – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 858.212
CASES
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 Immigration on 22 December 2016 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).
The primary applicant, Mr Pradeep Kizhakkeniyil Prabhakaran, and the members of his family unit, Mrs Saritha Narayanan and Miss Janaki Sedumath Pradeep applied for the visas on 4 July 2016. The delegate refused to grant the visa on the basis that the primary applicant (the applicant) did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations.
The delegate did not accept that the applicant had an internationally recognised record of exceptional and outstanding talent in the arts, as a painter and to a lesser extent as a Carnatic musician. In particular, the delegate acknowledged that the applicant is an accomplished painter who has experienced some success in both India and Australia, however felt that the applicant’s body of work and achievements are not reflective of an individual who is considered in the upper echelons of the field, with skills and abilities superior to others.
The delegate refused to grant a visa to the second and third named applicants on the basis that they did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 858 visa.
The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Tara Rajkumar OAM. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.
The applicant was nominated for the visa by Australian citizen, and 2002 Archibald Prize winner, Ms Cherry Hood. Ms Hood was unable to attend the hearing, however she provided…

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) [2018] AATA 3876
Case: [2018] AATA 3876
Decision Date: 5 September 2018

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858, by Mr Kizhakkeniyil Prabhakaran, who claimed to have an internationally recognised record of exceptional and outstanding achievement as a painter and a Carnatic musician. The application was refused by the Department of Home Affairs, and the applicant sought review of this decision before the Tribunal. The second and third applicants, who applied as family members, did not meet the secondary criteria as the primary applicant's application was affirmed.

The central legal issue before the Tribunal was whether the applicant had an "internationally recognised record of exceptional and outstanding achievement" in the arts, specifically as a painter and musician, as required by paragraph 858.212(2)(a) of the Migration Regulations 1994. The applicant did not assert that he met the alternative criteria under subclause 858.212(4) relating to specialised assistance to the Australian Government in matters of security.

The Tribunal considered the meaning of "internationally recognised record of exceptional and outstanding achievement," noting that the term "record" does not necessitate a quantifiable, large, or lengthy history, but rather an aggregation or list of achievements. However, the Tribunal ultimately affirmed the decision not to grant the visa, implying that the applicant's evidence did not satisfy the threshold of an internationally recognised record of exceptional and outstanding achievement in his nominated fields. Consequently, the Tribunal affirmed the decisions not to grant the Distinguished Talent (Residence) Class BX visas to the applicants.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and therefore clause 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 asserted that he provided specialised assistance to the Australian Government in matters of security at the time of application on 4 July 2016. Accordingly, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application. The issue under review 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.Internationally recognised record of exceptional and outstanding achievement The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 858.212(2)(a) is not defined in the Regulations. However, the Tribunal notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration. In particular, the Courts have held that the ordinary meaning of 'record' does not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a 'record' is an aggregation or a list, not necessarily a large aggregation or a long list.[1][1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].

Decision

Reasons for decision

The Tribunal notes that the second and third named applicants applied for visas on the basis that they are family members of the applicant. As the Tribunal has affirmed the decision in respect of the first named applicant, they do not meet the secondary visa criteria to be a member of the family unit of a person who meets the primary visa criteria, and there is no evidence that they meet the primary visa criteria in their own right.DECISION The Tribunal affirms the decisions not to grant the applicants Distinguished Talent (Residence) Class BX visas.Sheridan LeeMember

Ratio Decidendi

Legal Principle Established

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