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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 a written statement in support of the application.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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; 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.

   (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.

10. 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.

11. 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

12. 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.

13. However, the Tribunal notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration.

14. 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].

15. In addition, the Courts have held that in determining whether the applicant has a 'record of exceptional and outstanding 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 and Indigenous Affairs, French J observed that the concept of an 'exceptional record of achievement' did not require an applicant to be a 'national living treasure'.[2]

    [2] Gaffar v MIMA [2000] FCA 293 at [20].

16. As a result, the Tribunal acknowledges that 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.

17. The Tribunal is aware that in assessing whether the applicant meets the requirements of paragraph 858.212(2)(a), the concept of onus of proof is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision maker is also not required to make the applicant's case for it, nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[3]

    [3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

18. The applicant is an artistic painter in traditional Indian and Western Contemporary styles of painting, originating from India. He graduated in fine arts from the Baroda School of Arts in 1998 and arrived in Australia in 2008. In 2015, the applicant established the Kalakshetra Art and Music School in Melbourne. Mr Prabhakaran’s website outlines that ‘[t]he inspiration behind the school is his strong desire to introduce the Indian culture, art and music to the young generation of Australians and Indians who reside in Australia. In his school he is training students to draw, paint and he also teach students Indian Carnatic classical music.’

19. The applicant has displayed works in both India and Australia, with his first solo exhibition held in his home state of Kerala in 2001. Group exhibitions in Australia have been held at the Collingwood Art Gallery and Chelsea Art Gallery. He was awarded first prize in the Trinity Uniting Church Art exhibition 2009, ‘standing at the cross roads’, and his work was recognised as one of the three most appreciated pieces at an exhibition held by the Noble Park Art Council. The applicant also supplied the Department with a certificate of appreciation for his contribution to the Federation of Indian Associations of Victoria, issued 14 August 2015, and a certificate of appreciation for his contribution to the Diwali Festival of the Lights 2015.

20. At hearing, the applicant gave evidence that his most significant work is a series of portraits of 50 eminent Australians, painted on a single canvas, titled ‘Pride of Australia’. The piece was displayed in 2015 at his first solo exhibition in Australia and received coverage in the Indian Weekly, an outlet that delivers news to the Australian-Indian community, The Indian Express, an International news outlet established in India and Asian Lite, news for Indian and Asian Communities in Britain. The exhibition was hosted by the Kalakshetra Art and Music School.

21. In a ‘personal profile’ submitted to the Department, the applicant outlined that he started learning Carnatic music from childhood. He has performed with Guru Padmanabhan and Guru Venmony Shivaram and later in solo performances. The profile outlines that the applicant has performed as a musician in several community events, no details of the events were provided.

22. In submissions received on 25 April 2018, the applicant supplied evidence that his Pride of Australia portrait piece was displayed in Queen’s Hall in Victorian Parliament House on 24 and 25 May 2017 and received media coverage from various media outlets, including SBS Malayalam and India Life and Times. He also supplied evidence of an exhibition of his work held in the Indian Embassy, Oman, in November 2017. The applicant’s achievements in the arts must be assessed as at the time of application on 4 July 2016. The Tribunal notes that the achievements outlined in the submissions occurred after that date, and are therefore not compelling evidence to demonstrate that the applicant had an internationally recognised record of exceptional and outstanding achievement at the time of application.

23. Letters supporting the exhibition at Victorian Parliament House from Telmo Languiller MLA, Member for Tarneit, and Robin Scott MP, Minister for Multicultural Affairs and Murray Thompson MP, Member for Sandringham, were also supplied to the Tribunal and for the same reasons as above, are not compelling evidence to demonstrate that the applicant had an internationally recognised record of exceptional and outstanding achievement at the time of application.

24. Letters of support were provided by Mr Hitler David, President of the World Malayalee Council Inc (undated), Dr Jasvinder Sidhu, dated 28 July 2018 and Mr Ravi Ravichandhira OAM, Director of the Academy of Indian Music and Cultural Studies Australia, dated 1 August 2018. Each of the letters emphasised the prominence of the applicant amongst the Indian community and the contribution he is making towards the Australian community through his work in the arts.                  

25. At hearing, Ms Tara Rjakumar OAM gave evidence in support of the applicant. Amongst other notable achievements, Ms Rjakumar was included in the Inaugural Victorian Honour Roll of Women Shaping the Nation and honoured in Victorian Parliament in 2001 for her contributions to Victoria and the Nation in Arts and Education. Ms Rjakumar is a choreographer and dancer, who has performed or choreographed performances in Sadlers Wells Theatre and the South Bank in London, the Sydney Opera House and the Victorian Arts Centre in Melbourne, and toured to festivals in Australia, the United Kingdom, India, New Zealand and South East Asia. Ms Rjakumar gave evidence that she is a supporter of the applicant’s work; he is passionate and making an impact into the mainstream and with Indian youth. She expressed a view that the applicant is a real star in the South Asian Community, recognised in the mainstream and has lots of potential.

26. The applicant’s sponsor, Ms Cherry Alexandra Hood could not be contacted via telephone during the hearing due to poor mobile phone coverage in the remote farming area where she lives. As such, the Tribunal provided the applicant with additional time to submit a written statement. On 1 August 2018, the Tribunal received a statutory declaration from Ms Hood, dated 30 July 2018. Ms Hood is a visual artist and portrait artist, winning the Archibald Prize in 2002. Her work is held in the Australian National Gallery, The National Portrait Gallery, the Art Gallery of New South Wales, the South Australian Art Gallery and nine Australian Regional Art Galleries and has been exhibited internationally. Ms Hood’s statement outlines that she met the applicant when he attended a workshop she held and was impressed with his talent. The declaration goes on to express Ms Hood’s appreciation of the applicant’s work, in particular his traditional Indian works. The statement further emphasised the applicant’s contributions to Australian society and the success of his collection of oil portraits of Australian figures, both within Australia and international recognition through international news outlets and online.

27. The Tribunal considers that the references provided by fellow artists and prominent members of the Australian community are favourable to the applicant. However, while they speak to his talent, for the reasons below, they do not establish the requisite level of international recognition or exceptional and outstanding achievement.

28. The Tribunal notes that with regard to 'exceptional and outstanding' achievement, the Departmental guidelines (Procedures Advice Manual 3, or PAM3) state the following, among other things:

    that applicants should be eminent in the top echelons of their 'field';

    they should demonstrate extraordinary and remarkable abilities and be superior to others in their 'field';

    claims of an 'excellent' level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement;

    a single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as a 'record of exceptional and outstanding' achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future;

    an applicant would be expected to have achievements remarkable in relation to that 'field' and in relation to other participants in that 'field'. An applicant should be at the very top of their 'field'.

29. While the Tribunal may have regard to PAM3 in considering whether an applicant's achievements amount to 'exceptional and outstanding' achievement in one of the prescribed areas, it is mindful that it should not treat Departmental policy as determinative, but must bring its consideration back to the terms of the legislation.

30. In this case, the Tribunal is satisfied that the applicant's role as an artist (specifically, a painter and musician) is within the field of the arts and falls within the terms of cl.858.212(2)(a)(iii).

31. Having reviewed the available evidence, including photos submitted by the applicant of his work, statements from witnesses and letters of support, the Tribunal accepts that the applicant is a well-respected artist with significant potential. However, the Tribunal must be satisfied that he had an internationally recognised record of exceptional and outstanding achievement at the time of his application.

32. The Tribunal acknowledges the contributions the applicant continues to make to the community, including through his art school and his work running art therapy for the aged and people suffering dementia. Further, the Tribunal records that it found the applicant to be a passionate, committed and talented artist, who has significant potential to develop a national and international reputation. Nevertheless, the evidence submitted by the applicant does not satisfy the Tribunal that the applicant had an internationally recognised record of exceptional and outstanding achievement as a painter or musician at the time of application. The Tribunal notes that the recognition the applicant has received through prizes have been awarded in localised community arts groups, as opposed to the national or international level. The applicant has not submitted evidence to indicate that his works are held in any prestigious collections or galleries. Further, while there was evidence of some media coverage targeted at the international Indian community, no evidence was submitted to support recognition in arts focused news publications or journals.

33. The Tribunal accepts that judging or assessing the reputation of an artist or musician is inherently quite difficult as it is a more subjective process than (for instance) assessing the reputation of a sportsperson, where there are generally local, national and international rankings which could clearly point to whether a given sportsperson has an international reputation. However, the Tribunal does not regard the applicant’s experience as uncommon, in that it considers that other painters and musicians would have similar experiences and achievements. As such, the Tribunal finds it difficult to be satisfied that it sets the applicant apart from his peers to the degree required to establish that he has an internationally recognised record of exceptional and outstanding achievement.

34. Accordingly, the Tribunal is not satisfied that the applicant meets cl.858.212(2)(a) and thus finds he cannot satisfy cl.858.212 as a whole. It must therefore affirm the decision under review.

35. 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

36. The Tribunal affirms the decisions not to grant the applicants Distinguished Talent (Residence) Class BX visas.

    Sheridan Lee
    Member