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
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…
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- AGLC
- Prabhakaran v MICMA [2023] FedCFamC2G 357
- Case
- [2023] FedCFamC2G 357
- Decision Date
CaseChat Overview and Summary
The judicial review application was successful in the case of Prabhakaran v MICMA. The applicants sought to challenge a decision by the Migration Review Tribunal (the Tribunal) that affirmed the Minister for Immigration and Border Protection’s delegate’s refusal to grant them distinguished talent visas. The applicants, who were Indian nationals, applied for the visas on the basis that the first applicant was an internationally recognised painter and musician. The Federal Court issued a writ of certiorari to quash the Tribunal’s decision and a writ of mandamus to require the Tribunal to reconsider the application. The central legal issue before the court was whether the Tribunal erred in concluding that the first applicant did not have an internationally recognised record of exceptional and outstanding achievement in his nominated field of the arts, specifically as a painter and a musician, at the time his visa application was lodged. The Tribunal had found that the first applicant did not have such a record at the time of the application, despite acknowledging his potential. The court held that the Tribunal had failed to properly assess the first applicant’s achievements as at the time the visa application was lodged. The court found that the Tribunal had erred by considering evidence of achievements that occurred after the visa application was lodged. The court held that the Tribunal should have focused on the first applicant’s achievements at the time of the visa application, and that the Tribunal had failed to properly apply the relevant criteria. As a result, the court quashed the Tribunal’s decision and mandated that the Tribunal reconsider the application according to law.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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