Mkoki (Migration)

[2024] AATA 570

Mkoki (Migration) [2024] AATA 570 (20 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Coster Mkoki

REPRESENTATIVE:  Mrs Irene Tay (MARN: 0534583)

CASE NUMBER:  2017563

HOME AFFAIRS REFERENCE(S): BCC2019/2697208 BCC2019/2858415

MEMBER:P. Maishman

DATE:20 March 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Distinguished Talent (Class BX) visa, with the direction that the applicant meets the following criteria for a Subclass 858 visa:

·     cl 858.212 of Schedule 2 to the Regulations

Statement made on 20 March 2024 at 1:09pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – 'record of exceptional and outstanding achievement' – Arts – still prominent in the area – asset to the Australian community – no difficulty in obtaining employment, or in becoming established independently – commissioned artist – teacher – completed approved Form 1000 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212

CASES
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA [1992] FCA 470
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 Home Affairs on 26 November 2020 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).

2. The visa applicant applied for the visa on 23 May 2019. The delegate refused to grant the visa because they were not satisfied that the evidence provided demonstrated that the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area of their talent as required by cl.858.212(2)(d).

3. The applicant appeared before the Tribunal on 7 March 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant gave the Tribunal a copy of the delegates decision record with his application for review. The applicant gave the Tribunal significantly more information, documents and submissions than were before the delegate. Additional submissions and documents were received on 7 November 2023; 28 February 2024 and 29 February 2024. The applicant gave additional material 19 March 2024.  

7. The Distinguished Talent (Residence) (Class BX) visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research, or have provided specialised assistance to the Australian government in matters of security.

8. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.”

9. The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations.

10. Relevantly, cl.858.212(2) requires that the applicant:

    ·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

    ·is still prominent in the area; and

    ·would be an asset to the Australian community; and

    ·would have no difficulty in obtaining employment, or becoming established independently, in Australia in the area; and

    ·produces a completed, approved Form 1000; and

    ·if the applicant has not turned 18, or is at least 55 years old, at the time of the application – would be of exceptional benefit to the Australian community.

11. The applicant has not made any claims in relation to cl 858.212(4).

12. In determining whether the primary applicant meets cl.858.212(2), all of the stated subclauses must be met. The Tribunal notes that the primary applicant has produced a completed, approved Form 1000 in accordance with cl.858.212(2)(e), and that cl.858.212(2)(f) is not relevant to the applicant.

    Does the applicant have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research?

13. 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. (Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].

14. 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'. (Gaffar v MIMA [2000] FCA 293 at [20)

15. 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.

16. 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.(MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

17. The applicant submits he has been drawn to art work from an early age, drawing and shaping toys out of discarded materials. He started learning metal work at school when he was about 14 years old and those foundations led him to complete an apprenticeship as a fitter. The creation of his art includes the skills he has as a fitter, but also involves drawing, painting, sculpting and making musical instruments. The applicant submitted his work is recognised internationally, having been selected for exhibition in Zimbabwe, South Africa, Belgium, United Kingdom, New York and Australia. He was invited to participate in residencies in South Africa and Australia. The applicant submits his work has been sold to buyers from Holland, United Kingdom, Italy and the United States of America.  

18. The applicant gave the Tribunal a number of newspaper articles and reference letter attesting to the international recognition of his exceptional and outstanding achievements.    

19. Having regard to this evidence before it the Tribunal finds that the applicant had an internationally recognised record of exceptional and outstanding achievement in the field of the Arts at the time of application, as required by cl 858.212(2)(iii).

20. Therefore, the Tribunal is satisfied that cl.858.212(2)(a) is met.

    Is the applicant still prominent in the area?

21. Clause 858.212(2)(b) requires the applicant still be prominent in the area.

22. A letter from Mr Greg James, owner of Greg James Sculpture, confirms the applicant continues to be prominent in the Arts. Mr James confirms he hosted an exhibition of the applicants works in 2022 and has collaborated on work with the applicant.

23. Ms Veronica McGrath, sculptor and visual art lecturer provided a letter dated 20 December 2023 confirming the applicant teaches sculpture at TAFE and notes he continues to sell his works to reputable Perth galleries.

24. Ms Lyn DiCiero provided a letter dated 4 December 2023 identifying the applicant was a finalist in the 2021 and 2023 Castaway Sculpture Awards and acknowledges his technical strength and professionalism.

25. Having regard to the evidence the Tribunal finds the applicant remains prominent in the Arts.      

26. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(b).

    Would the applicant be an asset to the Australian community?

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

28. The applicant told the Tribunal that the Covid 19 pandemic restricted his ability to solely rely on the creation of his art and he has been employed in his trade as a fitter. His training as a fitter contributes to his skills as a sculpture artist. Following Covid the applicant has returned to predominately focussing on his art. He has obtained work teaching classes at TAFE and hopes to obtain full time engagement when his visa is approved.

29. The applicant’s references generally attest to the applicant’s professionalism, technical expertise, mentoring/training of students and commitment.     

30. Given the above, the Tribunal finds that the applicant would be an asset to the Australian community and meets the requirements of cl 858.212(2)(c).

    Would the applicant have no difficulty obtaining employment, or in becoming established independently, in Australia in the area?

31. Clause 858.212(2)(d) requires the applicant would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area.

32. The applicant told the Tribunal he is employed by WA TAFE to teach visual arts. Discussions with the Director suggest he would be a strong candidate to obtain a full time contract if he held an appropriate visa. The applicant said he also takes his own classes demonstrating to paying customers how to use welding equipment to make their own sculptures. The classes are booked through Class Bento a scheduling program. The landlord from whom he rents a workshop is the administrator of the Bento platform and distributes the nett profit to the applicant.

33. After the hearing the applicant gave the Tribunal a breakdown of his Class Bento activity and receipts and invoices for commissions he has undertaken. The applicant’s hours at TAFE as a visual arts teacher have been increased.    

34. The Tribunal also accepts that the applicant’s capacity to work in his field of the Arts as a commissioned artist and as a teacher. His ability to increase his work in his field will continue to improve and evolve upon the attainment of permanent residency in Australia. Therefore, the Tribunal is satisfied that cl.858.212(2)(d) is met.

    Has the applicant provided a completed, approved Form 1000?

35. The final subclause within cl.858.212 that must be met is cl.858.212(2)(e). This subclause requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. The applicant provided a completed approved form 1000 signed on 15 April 2019 by Artistic Director Rae Bolotin, on behalf of BigCi (Bilpin International Ground for Creative Initiatives). The BigCi website details various international artists who have undertaken residence at the facility. The facility hosts a number of workshops, open days and exhibitions.

36. Given the above, the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(e).

    Exceptional benefit to the Community

37. The Tribunal finds that the criterion in cl.858.212(2)(f) does not apply as the applicant was over 18 and under 55 at the time of application.

38. As the applicant meets all of the applicable requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

39. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 858 visa.

    DECISION

40. The Tribunal remits the application for a Distinguished Talent (Class BX) visa, with the direction that the applicant meets the following criteria for a Subclass 858 visa:

    ·cl 858.212 of Schedule 2 to the Regulations.

    P. Maishman
    Member