Prabhakaran v MICMA
[2023] FedCFamC2G 357
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Prabhakaran v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 357
File number: MLG 3043 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 9 May 2023 Catchwords: MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal affirming decision not to grant applicants Distinguished Talent (Residence) (Class BX) visas – whether Tribunal misconstrued cl 858.212 of the Migration Regulations 1994 (Cth) by failing to take into account events that arose between date of visa application and date of decision – whether Tribunal failed to give proper consideration to evidence before it – jurisdictional error established – writs issued Legislation: Acts Interpretation Act 1901 (Cth) s 13
Migration Act 1958 (Cth) ss 476, 477
Migration Regulations 1994 (Cth) cll 858.212, 858.213, 858.214, 858.215, reg 1.15B
Cases cited: Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 ; [2010] HCA 8
Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Singh v Minister for Home Affairs [2018] FCA 1337
Zhang v Minister for Immigration [2007] FMCA 664
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 10 February 2023 Counsel for the Applicants: Dr A McBeth Solicitor for the Applicants: Clothier Anderson & Associates Counsel for the First Respondent: Ms N Gollan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3043 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRADEEP KIZHAKKENIYIL PRABHAKARAN
First Applicant
SARITHA NARAYANAN
Second Applicant
JANAKI SEDUMATH PRADEEP, BY HER LITIGATION GUARDIAN PRADEEP KIZHAKKENIYIL PRABHAKARAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
9 May 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 5 September 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider the application for review lodged on 30 December 2016 according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application before the Court is an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 5 September 2018, affirming a decision made by a delegate of the Minister not to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas (distinguished talent visas).
The applicants rely on a further amended application filed on 13 January 2023 which raises two grounds. I have found jurisdictional error on the basis that the Tribunal misconstrued cl 858.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which is one of the criteria that needs to be met for the applicants to be granted the distinguished talent visas. Although this criterion is referred to as a ‘time of application’ criterion, the applicants have persuaded me that, on its proper construction, in considering whether the first applicant met the criterion, the Tribunal was permitted to consider his relevant achievements and reputation after the date of application.
The judicial review application is therefore successful. A writ of certiorari will issue to quash the Tribunal decision and a writ of mandamus will issue to require the Tribunal to reconsider the application according to law.
BACKGROUND
The applicants applied for the distinguished talent visas on 4 July 2016. The first applicant was the primary visa applicant and the second and third applicants, who are respectively the wife and child of the first applicant, were included in the application as members of the same family unit.
The first applicant provided a statement with the visa application setting out his achievements as a painter and as a musician. Amongst other things, his statement indicated that:
(a)since 2001 the applicant had three solo exhibitions of his paintings in his home state of Kerala in India, and his paintings were exhibited in a group exhibition in Delhi in 2004;
(b)the applicant had participated in four group exhibitions in Melbourne and his first solo exhibition in Australia was held in 2015, showcasing a series of portraits of 50 famous Australians; and
(c)the applicant has learned Carnatic music from childhood and performed a few concerts with his gurus before performing in solo concerts, and in Melbourne he receives opportunities to perform as a musician in several community events.
The first applicant also provided in the statement information about his teaching of art and music in Australia.
The application was accompanied by a form 1000, Nomination for Distinguished Talent, completed by Ms Cherry Hood, who won the Archibald Prize in 2002.
On 22 December 2016 a delegate of the Minister made a decision refusing to grant the applicants distinguished talent visas.
The applicants lodged an application to the Tribunal for review of the delegate’s decision on 30 December 2016.
Before the Tribunal, the applicants provided additional evidence of the first applicant’s accomplishments, including evidence in relation to exhibitions held in Oman and Victoria.
The applicants attended a hearing convened by the Tribunal on 26 July 2018.
On 5 September 2018 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the first applicant met the requirements of cl 858.212(2)(a), that is, whether the first 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 Tribunal considered this issue must be assessed as at the time the visa application was lodged, and said at [22] and [23] of its reasons (emphasis added):
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 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.
The Tribunal set out the relevant evidence before it and the guidance provided by the Department’s Procedures Advice Manual (PAM 3) guidelines. The Tribunal was satisfied that the first applicant’s role as a painter and musician is within the field of arts and falls within the terms of cl 858.212(2)(a)(iii). The Tribunal then gave the following reasons at [31]-[33] of its reasons for not being satisfied that the first applicant had an internationally recognised record of exceptional and outstanding achievement at the time of his application:
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 art 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.
The Tribunal found that the first applicant did not meet cl 858.212(2)(a) and therefore could not satisfy cl 858.212 as a whole. The Tribunal found that the second and third applicants did not meet the secondary criteria to be a member of the family unit of a person who meets the primary visa criteria. It therefore affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application to this Court was filed on 10 October 2018, which is within 35 days of the day on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The applicants rely on a further amended application filed on 13 January 2023, which raises the following two grounds:
1.The Tribunal erred in construing clause 858.212 as only permitting consideration of achievements and reputation as at the date of the visa application.
2.The Administrative Appeals Tribunal (“Tribunal”) constructively failed to exercise jurisdiction, in misconstruing or misapplying subclause 858.212(2)(a) of the Migration Regulations 1994 (“Regulations”); or, in the alternative, failed to take into account relevant considerations or failed to give proper consideration to the evidence before it.
Particulars
a.The Tribunal considered that it was required to assess this requirement, specifically, whether the applicant has an ‘internationally recognised record of exceptional and outstanding achievement’ in one of the four prescribed areas, as at the ‘time of application’ being 4 July 2016.
b.The Tribunal considered evidence provided by the applicant including;
i.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;
ii His work was exhibited in the Indian Embassy, Oman, in November 2017;
iii.Support letters post-dating time of application, from Telmo Languiller MLA, Member for Tarneit, Robin Scott MP, Minister for Multicultural Affairs, Murray Thompson MP, Member for Sandringham, 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.
c.The Tribunal erred by restricting its consideration to evidence that predated the applicant’s visa application.
d.The Tribunal failed to give proper consideration to the evidence that post-dated the applicant’s visa application but was capable of supporting the proposition that the applicant had an internationally recognised record of exceptional and outstanding achievement as at the date of application.
No affidavits were read at the hearing and the only evidence before the Court is the court book. Both parties filed written submissions ahead of the hearing and both parties were represented by Counsel who made oral submissions at the hearing on 10 February 2023.
RELEVANT LEGISLATION
Both grounds raised by the applicants refer to the Tribunal’s construction or application of cl 858.212, which is one of two clauses which appear in Schedule 2 to the Regulations as primary criteria under the subheading ‘858.21 – Criteria to be satisfied at time of application’. Clause 858.212 provides:
(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.
There is no suggestion that the first applicant met the criterion in cl 858.212(4), and the focus of this judgment is on cl 858.212(2).
There are also primary criteria relevant to the distinguished talent visa which appear under the subheading ‘858.22 – Criteria to be satisfied at time of decision’. These criteria all relate to the satisfaction of the public interest criteria.
GROUND 1
Relevant authorities
In support of their argument in relation to ground 1, the applicants rely on the High Court’s judgment in Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; [2010] HCA 8 (Berenguel). The High Court in Berenguel considered whether, in refusing to grant the plaintiff a Skilled (Residence) (Class VB) visa, Subclass 885 (Skilled – Independent), a delegate of the Minister misconstrued reg 1.15B(5) of the Regulations by finding that the plaintiff had not provided an International English Language Testing System (IELTS) test result for a test conducted not more than two years before the day on which the application was lodged, and therefore did not meet the requirement of having vocational English at the time of application. The plaintiff had booked, but not yet undertaken, an IELTS test at the time he lodged the visa application and subsequently passed that test after the visa application had been lodged.
It will immediately be apparent that the judgment in Berenguel relates to different statutory criteria to that considered by the Tribunal in the present case. However, the High Court made findings regarding the role and effect of headings in the Regulations, and adopted a process of construction, that is said to be relevant to the present case.
The High Court at [15] made the following observations about headings in the Regulations that apply equally to the present case (footnotes omitted):
… By virtue of s 13(1)(a) of the Legislative Instruments Act 2003 (Cth), where enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears, the Acts Interpretation Act 1901 (Cth) applies to the instrument “as if it were an Act and as if each provision of the legislative instrument were a section of an Act”. The Migration Regulations fall within the definition of a “legislative instrument” in ss 5 and 6 of the Legislative Instruments Act. This will attract to them the application of s 13 of that Act. The headings of the Parts, Divisions and Subdivisions into which an Act is divided are deemed to be part of the Act. Every schedule to an Act is deemed to be part of it. So Sch 2 to the Migration Regulations is “part of” those regulations. Thus, the criteria designations appearing as headings, not otherwise defined, in Sch 2 may be taken as “part of” the Migration Regulations. There is no provision otherwise giving substantive operation to the headings in which the designations appear. Nor are they otherwise defined.
In Berenguel, as in the present case, the relevant criteria appeared in the Regulations under a heading ‘… Criteria to be satisfied at time of application’. The relevant criterion in Berenguel was cl 885.213, which was in the following terms:
Either:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b) the applicant has competent English.
The High Court, at [17], contrasted that criterion with the criteria in cll 885.214 and 885.215 which required the application to be accompanied by evidence of an Australian Federal Police check and arrangements that the visa applicant has made to undergo a medical examination. The term ‘vocational English’, referred to in cl 885.213(a), was defined in the following way in reg 1.15B(5):
If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(a)an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening;…
The High Court then said at [25]-[26]:
25.The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.
26.Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application.
The High Court found that there was nothing to prevent relevant information being submitted to the Minister after the lodgement of the application, and that this construction did not compromise the purpose of the Regulations. At [21], the High Court had found that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate standard of English competency. On the other hand, the construction preferred by the Minister was said by the High Court to lead to ‘such plain unfairness and absurdity that it is not to be preferred’: Berengual at [26].
The Minister relies on the Federal Court’s judgment in Singh v Minister for Home Affairs [2018] FCA 1337 (Singh). That case, like the present application, concerned a finding by the Tribunal that the appellant did not satisfy the criterion in cl 858.212(2)(a) in Schedule 2 to the Regulations because the appellant had not exhibited a record of exceptional outstanding achievement. The appellant sought to meet the criteria for the visa on the basis of his record in wrestling. The Federal Court said at [13] of its reasons for judgment (emphasis added):
I will now address the Appellant’s submissions as to the material provided about events after the application. This is a complaint about the Tribunal’s approach to information provided about events after the Appellant’s Visa application, which supported the Appellant’s submissions on his achievements. The Appellant had competed in two tournaments after his application, and maybe more, winning a gold medal in at least one of them. The difficulty for the Tribunal was that the Appellant was required to show an internationally recognised record as at the date of the application. These post-application events can only be relevant insofar as they shed light on the existence of the Appellant’s record as at the date of application: see Jayasinghe v The Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [38].
For completeness, I note that Jayasinghe v Minister for Immigration and Multicultural Affairs [2006] FCA 1700 (Jayasinghe), relied on in Singh, relates to a decision of the Tribunal affirming a decision not to grant the appellant a spouse visa and [38] of that judgment reads:
Contrary to the submissions of the appellant, the relevant regulations I am considering clearly focus attention at the time of application. The only relevance of Bretag [v Immigration Review Tribunal (unreported, O’Loughlin J, 29 November 1991)] is the extent to which evidence may impact upon that assessment, and particularly evidence of subsequent events. In my view, the Tribunal here undertook its task in looking at all the material before it, both at the time of application and thereafter. No error of the type identified in Bretag has occurred here.
It is readily apparent that the reference to Jayasinghe in Singh is to support the proposition in the final sentence of [13], not the penultimate sentence emphasised above.
Applicants’ submissions
The applicants referred to Berengual and submitted that the two reasons the High Court found that the decision-maker could and should have regard to evidence of English competency that post-dated the application apply equally to the present case. The two reasons were:
(a)the language in the other subparagraphs of the clause implied that they were intended to take into account events or evidence that post-dated the application; and
(b)it would run counter to the purpose of the provision and produce an absurd and unfair result if the decision-maker was precluded from considering developments that occurred after the date of application.
The applicants submitted that the language of cl 858.212(2)(b), (c), (d) and (f) is plainly directed to the time of decision and/or the future, despite the fact that the clause falls under the ‘time of application’ heading. The applicants submitted that if the construction adopted by the Tribunal towards cl 858.212(2)(a) was applied equally to those other paragraphs, the Tribunal would be permitted to consider those criteria against the situation that prevailed at the time of application, but without reference to anything that occurred between the application and decision, which would be contrary to the language and purpose of the provision. For example, a person who was ‘still prominent in the area’ at the time of application but no longer prominent at the time of decision would meet the criteria in cl 858.212(2)(b), such as a sportsperson who had suffered a career ending injury between the date of application and the date of decision, or a previously lauded academic who has been exposed in a plagiarism scandal between those two dates.
The applicants also submitted that where an applicant for a distinguished talent visa has had additional accomplishments and further enhanced his or her international reputation in the period between the application and the decision, the purpose of the visa criterion is plainly better served by the decision-maker being permitted to consider those later developments and the Tribunal in the present case should have considered the evidence of the post-application developments. The applicants submitted that such approach is consistent with the grammar and structure of cl 858.212 as a whole, notwithstanding the ‘time of application’ heading, and prevents the absurd and unfair result that the Tribunal’s construction produced in this case.
In oral submissions, Counsel for the applicants submitted that nothing in the text of cl 858.212 that says that the criteria need to be satisfied at the time of application, and only the heading can support that construction.
Minister’s submissions
The Minister submitted that the Tribunal’s reasoning in this case was consistent with Federal Court authority as to the interpretation of cl 858.212(2). The Minister submitted that following Singh, it is clear that the requirement under cl 858.212(2)(a) that a visa applicant has an internationally recognised record of exceptional outstanding achievement is to be assessed at the time of the visa application. The ‘record’ that the decision-maker is required to assess is the record that the visa applicant has at the date the visa application is made, and does not include achievements which post-date the visa application.
The Minister submitted that the Tribunal did consider the evidence that the first applicant submitted which post-dated his visa application, as it referred to that evidence at [22] and [23], but determined that the evidence was not compelling in demonstrating that the first applicant had an internationally recognised record of exceptional and outstanding achievement at the time of application.
The Minister submitted that the applicants’ submission based on Berengual should be rejected, particularly given that the language of cl 858.212(2) is not consistent with the interpretation adopted by the High Court in Berengual, in relation to an entirely different provision. The Minister submitted that it was important that, in Berengual, the primary reason that the High Court concluded that the decision-maker could have regard to evidence of a successful IELTS test achieved after the date of the visa application was because the language of reg 1.15B(5) did not expressly require that the test score was achieved before the visa application was lodged. There is no similarity between the language of the provision the High Court considered in Berengual or its legislative purpose which would support cl 858.212(2) being construed in the same manner in this case. The language of cl 858.212(2) is expressly inconsistent with the applicants’ proposed construction. In particular, cl 858.212(2)(a) refers to an applicant’s record, the ordinary meaning of which is ‘a report, list, or aggregate of actions or achievements, as in the case of a person’: see Zhang v Minister for Immigration [2007] FMCA 664 at [37] (citing the Macquarie Dictionary definition of ‘record’). Clause 858.212(2)(a) stipulates that the applicant ‘has’ such a ‘record’. The most natural grammatical reading of the text of cl 858.212(2)(a) is that the applicant has at the time of application a record, being a report or list of achievements.
The Minister also referred to cl 858.212(2)(e) and the requirement that the applicant produces a completed approved form 1000 which requires the applicant’s record of achievement in an area to be attested to by a person of national reputation in the relevant area. In order for this requirement to be satisfied, it is clear that the record of achievement must be the record of achievement of the applicant at the date of the visa application, because the visa application itself must include a form 1000.
The Minister submitted that, based on the language used in cl 858.212(2), it is clear that the construction the applicants propose in their written submission is inconsistent with the text of cl 858.212 and should be rejected given that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of the provision.
The Minister submitted that the High Court found in Berengual that the ‘time of application’ subheading did not ‘connect grammatically’ to the terms of cl 885.213, but this was not the primary reason that the High Court adopted the construction that it did in Berengual. Rather, the High Court found that the subheading did not alter its conclusion as to the correct construction of reg 1.15B(5), which was based on the text of that provision. The Minister also submitted that there is no similarity between the relevant purpose identified in Berengual and the purpose of cl 858.212(2) in the present case.
Counsel for the Minister submitted at the hearing that there is textual support in cl 858.212(2) that supports at least cl 858.212(2)(a) referring to the record as at the date of application. The submission was phrased in the following way:
So contrary to my learned friend’s submission, there is actually textual support in the clause that supports at least subclause (a) as being a requirement that the record is the record as at the date of the application. There are further subclauses within subclause (2) which direct attention to events which might post-date the application. For example, there’s subclause (b), which refers to the fact that the applicant is still prominent in the area, and in my submission, the distinction between the use of the word “has” in subclause (a) in relation to:
The applicant has an internationally recognised record –
and then the use of the word “is” in subclause (b), is also consistent with this construction that what the legislation is directing attention to in subclause (a) is the record as at the date of the application, and subclause (b) is directed to events that may have post-dated the application.
At the hearing, Counsel for the Minister also submitted that the applicants have merely asserted the purpose of cl 858.212(2) without providing any Explanatory Statement or other documents in support of the asserted purpose.
Resolution
To the extent that there is any inconsistency between the High Court’s judgment in Berenguel and the Federal Court’s judgment in Singh, it would be appropriate for me to follow Berenguel. Not only is it authority from a higher court, but it is a judgment reached after careful consideration of the parties’ arguments in relation to questions of statutory construction. By way of contrast, although Singh is more directly relevant because it deals with the same provision that is being considered in this judgment, the appellant in that matter was self-represented and there is nothing in the judgment to indicate that any detailed submissions were made to the Court in relation to the question of construction or that the Court was referred to the High Court’s judgment in Berenguel.
There are two implications that arise from the oral submission advanced on behalf of the Minister set out at [43] above. First, the Minister advances a construction that would see some subparagraphs within cl 858.212(2) directed to the state of affairs that exists as at the date of application and other subparagraphs directed to the state of affairs that exists at the time of decision, notwithstanding that the various subparagraphs appear within the same subclause which is comprised of a single sentence. Second, on the Minister’s own construction, the subheading ‘858.21 – Criteria to be satisfied at time of application’ is not determinative as to whether cl 858.212(2) should be assessed as at the date of application, because the Minister prefers a construction where at least some criteria, including that in cl 858.212(2)(b) to the effect that the person ‘is still’ prominent in the area, can take into account a state of affairs that post-dates the lodging of the application.
I do not accept that some sub-paragraphs within cl 858.212(2) are to be assessed only at the time of application, and others can take into account circumstances that arise after the application is lodged. Whether cl 858.212 is appropriately construed as criteria that need to be satisfied at the time of application, or whether a decision-maker applying the criteria can consider a change in circumstances that takes place between the lodging of the application and the time of decision, that construction should apply to the whole of cl 858.212.
Aside from the illogicality and unnecessary complexity that would result from interpreting some subparagraphs within cl 858.212(2) as being directed only to the state of affairs at the time of application and others taking into account circumstances that have arisen between the application and decision, the grammar used throughout cl 858.212(2) does not support the construction advanced on behalf of the Minister. Counsel for the Minister drew a distinction between the word ‘has’ in cl 858.212(2)(a) and ‘is’ in cl 858.212(2)(b). However, every subparagraph in cl 858.212(2) is drafted in the present or future tense, as can be seen through the use of the words ‘has’ (cl 858.212(2)(a)), ‘is still’ (cl 858.212(2)(b)), ‘would be’ (cl 858.212(2)(c) and (f)), ‘would have’ (cl 858.212(2)(d)) and ‘produces’ (cl 858.212(2(e)).
The use of present or future tense does not resolve the construction issue raised by this ground. That is because there are many clauses in Schedule 2 to the Regulations which purport to be criteria that need to be satisfied at the time of the application which predominantly use present or future tense.
Further, the use of the word ‘has’ in cl 858.212(2)(a) does not assist in the Minister’s attempts to distinguish Berenguel. While it is true, as Counsel for the Minister submitted, that the judgment in Berenguel turned in large part on the specific wording of reg 1.15B(5), which could be construed in a way that did not require the IELTS test to have been conducted before the application was lodged, it should also be borne in mind that reg 1.15B(5) was a regulation that simply defined when a person has ‘vocational English’. The relevant criterion that needed to be met required that the visa applicant ‘has’ vocational English.
Looking at the terms of cl 858.212 as a whole, I accept the submission advanced by the applicants that the only indication that this clause is directed to the state of affairs that exists at the time the application is lodged is the subheading ‘858.21 – Criteria to be satisfied at time of application’. There is nothing in the wording of any of the subclauses of cl 858.212 or subparagraphs of cl 858.212(2) that would indicate that the criteria must be satisfied as at the date the application was lodged without taking into account any developments after the date of the application.
I acknowledge that, the Minister placed particular emphasis on cl 858.212(2)(e) to support his construction that the ‘record’ must be one that exists at the time of application. I accept that, as a matter of practice, a form 1000 will ordinarily address the ‘record’ as at the time the application is lodged, because the form 1000 accompanies the visa application. However, in my view, the terms of cl 858.212(2)(e) do not support a construction that the whole of cl 858.212(2) (including cl 858.212(2)(a)) must be satisfied at the time of application. There is nothing in the text of cl 858.212 that would, on its face, mean that any post-application developments to the ‘record’ cannot be taken into account. The form 1000 may be necessary for the validity of the application, but there would be nothing to prevent the person who completed the form 1000 subsequently providing further information about developments to the ‘record’, should they wish to do so, as Ms Hood did in the present case. There also does not appear to be any reason, based on the terms of cl 858.212(2)(e) why an applicant could not submit a further form 1000 after the visa application is lodged.
In my view, the requirement that a form 1000 be provided at the same time as the application derives not from the wording of cl 858.212(2)(e), but rather from cl 1113(3)(d) in Schedule 1 to the Regulations, which requires that, where an applicant for a distinguished talent visa seeks to satisfy the criteria in cl 858.212(2), the ‘application must be accompanied by a completed approved form 1000’. Neither party referred to cl 1113(3)(d) in their submissions, or addressed any interrelationship between that clause and cl 858.212(2)(e) and I therefore do not address it any further in this judgment.
In circumstances where, on both parties’ submissions, the wording of the other paragraphs in cl 858.212(2) address matters in relation to which it is appropriate to take into account developments after the visa application is lodged, it seems to me that the whole of cl 858.212 should be construed in that way and nothing in the terms of cl 858.212(2)(e) displaces that view.
The parties have not identified any other provisions of the Regulations that might impact how cl 858.212 is to be interpreted. For example, if there was a time of decision criterion that required an applicant to ‘continue to meet’ the requirements of cl 858.212(2)(a), (b), (c), (d) and (f),[1] that would support a construction that cl 858.212 is to be satisfied at the time of application, taking into account only evidence that relates to the state of affairs that existed at the time of application. Rather, as mentioned above, the criteria that are said to be ‘time of decision’ criteria for a distinguished talent visa address only the need to meet the public interest criteria and do not inform the construction of cl 858.212 in any way.
[1] Compare, for example, cl 820.221(1)(a) in Schedule 2 to the Regulations in relation to partner visa applications, which allows an applicant to meet the criteria if the applicant ‘continues to meet the requirements of the applicable subclause’ that the applicant met at the time of application.
It is then necessary to consider the effect of the subheading. There can be no doubt that the subheading ‘858.21 – Criteria to be satisfied at time of application’ is part of the Regulations and can inform their construction: see s 13 of the Acts Interpretation Act 1901 (Cth); Berenguel at [15], [26]. However, taking into account the judgment in Berenguel and the submissions advanced by both parties in this matter, the subheading under which cl 858.212 appears is not determinative. As was the case with the clause considered in Berenguel, the subheading ‘858.21 – Criteria to be satisfied at time of application’ does not connect grammatically to the terms of cl 858.212 and the text of the clauses that appear under the subheading do not support any general conclusion that the criteria in that part speak exclusively to matters which must be satisfied at the time of application. I find in the present matter that the subheading does not operate independently to restrict the application of cl 858.212 to a consideration of the state of affairs that existed at the time of application.
I accept the applicants’ submission that the purpose of cl 858.212 supports their preferred construction of the clause. While I acknowledge the Minister’s submission that the applicants have not referred to any explanatory statement or other document to support the asserted purpose, it is open to infer from the clause as a whole that the purpose of cl 858.212(2) is to ensure that a recipient of a distinguished talent visa has sufficient expertise, achievements and reputation in the relevant field and that the visa applicant would be an asset to Australia. This purpose is facilitated by allowing a decision-maker to have regard to events and circumstances which arise between the date of the application and the date of the decision.
I find that, properly construed, cl 858.212 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 applicants that addresses circumstances that arose after the application. This amounts to jurisdictional error and it follows that writs of certiorari and mandamus will issue.
GROUND 2
At the hearing of this matter, Counsel for the applicants confirmed that ground 2 is pleaded in the alternative to ground 1. On this basis, it is not strictly speaking necessary for me to consider ground 2. However, in my view, it is prudent to consider this ground in case I am subsequently found to be incorrect in my conclusions in relation to ground 1.
Given that ground 2 is an alternative to ground 1, the consideration of ground 2 is premised on the Tribunal being correct in its approach to cl 858.212(2)(a), namely, that the criterion must be assessed based on the circumstances that existed as at the date of application.
Applicants’ submissions
By ground 2, the applicants assert that the Tribunal failed to give proper consideration to the claims and evidence before it. The ground focuses on the evidence that post-dates the application but which, in the applicants’ submission, provides evidence of the first applicant’s reputation and record of achievement as at the date of the application.
The applicants submitted that the Tribunal effectively dismissed certain evidence advanced by them that post-dated the application because it was not compelling evidence of the first applicant’s internationally recognised record of exceptional and outstanding achievement at the time of the application. The evidence that was said to be effectively dismissed includes:
(a)evidence that the first applicant’s work, ‘Pride of Australia’, had been exhibited in Queen’s Hall at the Victorian Parliament House on 24 and 25 May 2017;
(b)media coverage of the display of the first applicant’s work at Parliament House; and
(c)letters supporting the exhibition at the Victorian Parliament House from the Speaker and bipartisan support from other MPs which post-dated the May 2017 display at the Victorian Parliament.
The applicants submitted that it was squarely put as part of the first applicant’s case at the time of the visa application that the reputation and recognition of his work was evidenced by an invitation to exhibit his work in Parliament House. The evidence referred to, even though it came into existence after the date of the visa application, was said to be evidence that was rationally capable of affecting the Tribunal’s assessment of the first applicant’s international recognition of his achievement, including through the invitation to exhibit at Parliament House, and the Tribunal ought to have had regard to this evidence. Failure to have regard to the evidence constituted a constructive failure to review and hence jurisdictional error.
In oral submissions, Counsel for the applicants referred to the artwork itself being created and completed in 2015 and media coverage it received after the exhibition in Parliament House as being probative of the quality and significance of the achievement, being the artwork, which pre-dated the application. The applicants submitted that the Tribunal should also have had regard to evidence about the Oman exhibition held in 2017 because the evidence of Ms Hood was that it was the recognition of his 2015 work that led to the Oman exhibition.
Minister’s submissions
The Minister submitted that it is clear from [22] and [23] that the Tribunal considered the various evidence and found that it was not compelling.
In oral submissions, Counsel for the Minister submitted that the oral submission advanced by Counsel for the applicants that the ‘achievement’ is the artwork does not make grammatical sense in the context of cl 858.212(2)(a), and the ordinary meaning of the word ‘record’ as it appears in that paragraph.
Resolution
It is uncontroversial that, if the Tribunal was required to assess whether the criterion in cl 858.212(2)(a) was met as at the date of the application, it was open to the Tribunal to consider evidence that post-dated the visa application if it tends to logically prove or disprove a fact relevant to whether the criterion was met at the time of application. This is consistent with the comments of Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160; [1980] FCA 85 that the decision must be based ‘…upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see also Jayasinghe at [35].
Before considering the evidence, it is appropriate to again refer to the terms of cl 858.212(2)(a). This clause requires that an applicant for a distinguished talent visa have ‘an internationally recognised record of exceptional and outstanding achievement’ in, relevantly, the arts. In my view, this phrase needs to be read as a whole and therefore requires consideration of the ‘internationally recognised record’ of the achievement rather than just the ‘achievement’ itself. In other words, the clause is directed to the reputation and renown of the visa applicant in relation to their achievements, rather than, in the case of a painter, any particular piece of art that they produce. In construing and applying this clause it is appropriate to recognise that there can be a delay between the achievement (that is, the production of a piece or body of work by an artist) and the internationally recognised record (that is, the recognition) they receive for that work.
It is therefore not determinative that the first applicant produced the ‘Pride of Australia’ work, which on the evidence appears to be his most significant body of work to date, in 2015 prior to his distinguished talent visa application. Rather, if cl 858.212(2)(a) is directed only to the state of affairs as at the date of the visa application, the question for the Tribunal was whether, at that date, the first applicant had an internationally recognised record of exceptional and outstanding achievement based on that and other works he had produced.
I then turn to the evidence referred to by the applicants. In his statement provided with his visa application, the first applicant said:
I received an invitation from the Hon.Speaker Mr.Telmo Languiller of the prestigious Victorian parliament and I presented a portrait of him. He agreed to conduct my painting exhibition in the parliament hall (queen’s hall). So my coming exhibition is planning to conduct in parliament hall may be after a time period of six months.
The exhibition at Parliament House had not taken place at the time of application and did not take place until May 2017, approximately 10 months after the date of the application. None of the evidence that addresses how well the exhibition in the Victorian Parliament House was received, or any subsequent proposal or recommendation that he exhibit his work in the Commonwealth Parliament House, is probative evidence of the recognition of the first applicant’s artwork as at the date of the application.
At best, the evidence that the applicant did eventually exhibit his artwork in the Victorian Parliament House may corroborate his evidence that, at the time of the application, the Speaker had agreed to allow him to exhibit in Parliament House. It is the agreement to hold the exhibition that might evidence the recognition of the first applicant’s achievements at the time of that application, rather than the exhibition itself. There is nothing in the Tribunal decision to indicate that it did not accept the first applicant’s statement as to the agreement, as at the date of application, to exhibit in the Victorian Parliament House.
In these circumstances, the Tribunal’s statement at [23] that, for the same reasons (namely that the record is to be assessed as at the date of application) the letters regarding the exhibition in the Victorian Parliament House were not compelling evidence to demonstrate that the first applicant had an internationally recognised record of exceptional and outstanding achievement at the date of application, does not reflect any failure to consider the relevant evidence.
The applicants also pointed to a letter from Dr Jasvinder Sidhu which post-dated the application and said in part:
He organized the first solo exhibition by his own school named ‘Kalakshetra Art & Music School’ in 2015 and that exhibition gave him a huge appreciation. Many MPs and Ministers visited the exhibition centre and thereby he was invited by the Hon. Speaker of the Victorian Parliament to exhibit the paintings in the Queen’s Hall in the Parliament of Victoria.
Again, this simply corroborates the evidence in the first applicant’s statement that his main exhibition was held in 2015 and it was well received, and that the speaker of the Victorian Parliament House had invited him or agreed to him exhibiting his work in the Victorian Parliament House.
In any event, I do not accept that the Tribunal failed to consider this letter. It was not referred to in [22] or [23], which are the paragraphs that the applicants identified in asserting error in this ground. Rather, it was referred to together with other letters of support in [24] of the Tribunal’s reasons. In [24] to [26], the Tribunal addressed letters and evidence given by fellow artists and prominent members of the Australian community in support of the first applicant, and then at [27] it expressed the view that these references are favourable to the first applicant, but do not establish the requisite international recognition or exceptional and outstanding achievement. The reasoning at [27] relates to the evidence identified at [24] to [26].
In a statutory declaration provided to the Tribunal, Ms Hood said:
Moreover in 2015, well prior to his visa application, Sedu (Mr P[r]adeep) had already completed and exhibited an extremely ambitious and very competent, collection of fifty large scale oil portraits of prominent Australian figures. This extraordinary group of oversized portraits exhibited together was indeed very impressive. Naturally the exhibition gained huge recognition locally. As well Australian Press, it attracted Indian Press! When Sedu (Mr Pradeep) was recognized in India, images of him and this impressive collection of paintings spread via the internet. He and his work were discussed in various web portals, he had, as a result many interviews and much publicity. The nature of the internet being so very international, Sedu (Mr Pradeep) was soon being interviewed and watched by people all around the world. This ultimately led to his hugely successful exhibition in Oman.
The Tribunal had regard to the evidence of Ms Hood, in particular at [26] of its reasons, including the acknowledgement of the first applicant’s success in relation to his collection of oil paintings of Australian figures, both within Australia and international recognition through international news articles and online. However, the Tribunal did not err by not placing any weight on the fact that the first applicant subsequently held an exhibition in Oman. The exhibition in Oman is recognition of the applicant’s achievements that post-dates the visa application and cannot be compelling or probative evidence that affects whether the first applicant had an internationally recognised record of exceptional and outstanding achievement as at the date of the visa application.
For these reasons, if I am incorrect in my conclusion in relation to ground 1, and the Tribunal was required to assess the criterion in cl 858.212(2)(a) as at the date of application, ground 2 does not establish jurisdictional error.
CONCLUSION
On the basis of the jurisdictional error that I have found in relation to ground 1, the judicial review application is successful. A writ of certiorari will issue to quash the Tribunal decision and a writ of mandamus will issue to require the Tribunal to reconsider the review application according to law.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 May 2023
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