Kizhakkeniyil Prabhakaran (Migration)

[2024] AATA 2967

Kizhakkeniyil Prabhakaran (Migration) [2024] AATA 2967 (5 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pradeep Kizhakkeniyil Prabhakaran
Miss Janaki Sedumath Pradeep
Mrs Saritha Narayanan

REPRESENTATIVE:  Ms Ushass Panicker (MARN: 0324658)

CASE NUMBER:  2308745

HOME AFFAIRS REFERENCE(S):          BCC2016/2264005

MEMBER:Jade Murphy

DATE:5 August 2024

PLACE OF DECISION:  Melbourne

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

·cl 858.212(2)(a) of Schedule 2 to the Regulations.

Statement made on 5 August 2024 at 10:17am

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – Federal Circuit and Family Court remittal – internationally recognised record of exceptional and outstanding achievement in the arts – painter and Carnatic musician – significant evidence submitted after the visa application – artwork exhibited at the Indian Embassy in Oman and in Victorian Parliament – international media coverage – support from internationally renowned artists – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212

CASES

Zhang v MIMA & Anor [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 and Border Protection on 22 December 2016 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 applicants applied for the visas on 4 July 2016. The delegate refused to grant the visa on the basis that Mr Pradeep Kizhakkeniyil Prabhakaran (the applicant) did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicants appeared before the Tribunal on 21 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

4. The applicants were represented in relation to the review.

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

   BACKGROUND

   The primary decision record

6. On 22 December 2016, a delegate of the then Minister of Immigration and Border Protection (the delegate) decided to refuse to grant the applicant a Distinguished Talent Subclass 858 visa. As set out in the primary decision record, the delegate was not satisfied that the applicants met the requirements or cl 858.212(2)(a) of the Regulations, specifically that 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.

7. The delegate noted that the applicant had graduated from the Baroda School of Arts, India, in 1998, began his career as a painter, and first sparked public interest in 2001 after an inaugural solo exhibition entitled ‘God of Religion’ in his home state of Kerala. Further solo exhibitions followed before the applicant was invited to exhibit paintings amongst other artists in a group exhibition in Delhi, India, in 2004.

8. The delegate stated that as well as working as a freelance painter in India, the applicant was also employed as an artist and graphic designer for various organisations including the Labour India Research Centre and a Jain Temple in Gujarat, India.

9. The delegate explained that the applicant moved to Australia in 2009 and has since exhibited works alongside other artists at several localised events and galleries within Victoria including the Dandenong Art Community, the Noble Park Art Council, the Collingwood Art Gallery and the Chelsea Art Gallery. The delegate noted that some of the applicant’s works have received awards from local art groups including the Trinity Uniting Church, the Dandenong Art Community and the Noble Park Art Council.

10. The delegate considered that whilst noteworthy, these localised events would not necessarily attract those artists with an internationally recognised record of exceptional and outstanding achievement. As a result, minimal weight was applied to these awards when determining whether the applicant’s achievements are measurable to both Australian and international standards.

11. The delegate went on to state that in 2015, the applicant showcased a solo exhibition of some 50 eminent Australian personalities depicted on a single canvas, measuring 50 metres in length and one and a half metres in height. The work which was exhibited at the Glen Eira Town Hall was entitled ‘Pride of Australia’ and is arguably the applicant’s most recognised achievement. The delegate acknowledged that the work drew noteworthy attention. However, the delegate considered that this was in part because of its uniqueness in size and its patriotic subject matter, which sparked much discussion and interest amongst those who viewed it. The delegate did not consider that there was any evidence to indicate that the work itself was highly praised or regarded by renowned artists or experts in the field.

12. The delegate went on to state that while they acknowledged that the applicant is an accomplished painter who has experienced some success in both India and Australia, they did not consider that the applicant’s body of work and achievements are reflective of an individual who is considered in the upper echelons of the field, with skills and abilities superior to others.

13. The delegate also considered the applicant’s achievements as a Carnatic musician. They noted that Carnatic music is a style which is commonly associated with areas of southern India, with vocals being its main emphasis. They stated that the applicant was taught this style of music from a young age and that he claimed to have conducted several solo performances in India and more recently Australia. The delegate considered that the applicant’s achievements in this area appeared limited with minimal supporting evidence provided. As a result, the delegate was not satisfied that the applicant’s achievements as a musician are reflective of an individual who is considered in the upper echelons of the field, with skills and abilities superior to others.

14. For these reasons, the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement as a painter and a musician.

    First Tribunal review

15. On 30 December 2016, the applicant lodged an application for administrative review with the Tribunal. Following a hearing held on 26 July 2018, the Tribunal (differently constituted) decided to affirm the delegate’s decision on 5 September 2018.

16. After considering the evidence provided at hearing and on review, the Tribunal accepted that the applicant ‘is a well-respected artist with significant potential’ however was not satisfied ‘that he had an internationally recognised record of exceptional and outstanding achievement at the time of his application’.[1]

    [1] Tribunal Decision Record for matter number 16225991, dated 5 September 2018 at 31.

17. Amongst other things, the applicant provided evidence that one of his artistic works, the ‘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 outlets including SBS Malayalam and India Life and Times. The Tribunal considered that ‘the applicant’s achievements in the arts must be assessed at the time of application on 4 July 2016’ and for that reason was not satisfied that this was ‘compelling evidence to demonstrate that the applicant had an internationally recognised record of exceptional and outstanding achievement at the time of application’. The Tribunal further references several letters of support ‘that for the same reasons above’ (implying they had been issued after the visa application date), it considered they ‘are not compelling evidence’ to demonstrate that the applicant met the requirements at the time of application.

18. The Tribunal found that the first applicant did not meet cl 858.212(2)(a) and therefore could not satisfy cl 858.212 and affirmed the delegate’s decision.

    Judicial review

19. On 10 October 2018, the applicant lodged an application for judicial review with the Federal Circuit and Family Court of Australia (FCFCOA). On 9 May 2023, the FCFCOA by judgment quashed the decision made by the Tribunal and remitted it to the Tribunal for reconsideration.

20. Judge Ladhams found that cl 858.212, properly construed, 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 applicant that addresses circumstances that arose after the application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The application was refused on the basis that the applicant did not meet the requirements of cl 858.212(2)(a) and therefore cl 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

22. The issue in the present case 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.

23. At hearing the Tribunal noted that the delegate’s concerns as set out above in paragraphs 6–14 of this decision and in the primary decision record. The Tribunal, having confirmed the documentary evidence and submissions provided prior to hearing, asked the applicant what he would like to say in response to the delegate’s concerns in oral evidence.

24. The applicant told the Tribunal that prior to arriving in Australia, he was ‘fairly famous’. The applicant drew a distinction between ‘famous’ and ‘popular’ and submitted that often visual artists are famous within the industry but are not widely known as holding a popular status that is usually more reserved for movie stars who have larger profiles. The applicant said that after he arrived in Australia, he started displaying his works in group exhibitions. The applicant told the Tribunal that he received an art prize for this from a local Dandenong organisation. Another of the applicant’s first pieces of work in Australia attracted attention for its unique large-scale size, iconic Australian imagery and that it took approximately one-and-a-half years to complete. The applicant titled it ‘Pride of Australia’ and thereafter it was exhibited in the Victorian Parliament. The applicant told the Tribunal that he played an active role in presenting it to the Victorian Parliament and speaking about the artwork at its unveiling. The applicant provided documentary evidence such as photographs and media articles to support his submission in this regard. The Tribunal accepts the applicant’s documentary evidence.

25. The applicant told the Tribunal that following the media coverage of the exhibition in the Victorian Parliament, in November 2017, the Sultan of Oman invited the applicant to Oman on their National Day to exhibit his artwork at the Indian Embassy in Oman. The applicant explained that the artwork was a celebration of Indian and Omani bilateral relationships. Further to exhibiting his artwork, the applicant stated that he was also invited to conduct professional workshops across four days for the Omani government. The applicant submitted that this was a significant international achievement as no other international artist had ever been invited to have a permanent display of artwork in the Indian Embassy in Oman. The applicant submitted that further evidence of the importance of this was the attendance of an Indian Cabinet Minister who travelled to Oman to inaugurate the exhibition. The Tribunal notes that amongst the documentary evidence provided by the applicant were media articles originating in the United States of America, the United Kingdom, Australia, and India.

26. The applicant spoke about three witnesses who had made written statements of support and presented them to the previous Tribunal and noted that they are renowned artists themselves who spoke to the international recognition of the applicant’s artwork. Although not provided again before the current Tribunal, the Tribunal has accessed the witness statements submitted to the previously constituted Tribunal and accepts that they support the applicant’s submissions in this regard.

27. The Tribunal accepts the applicant’s submission that he is an internationally recognised artist. Most persuasive to the Tribunal is his artwork exhibited in the Victorian Parliament, and his artwork commissioned and exhibited in the Indian Embassy in Oman, particularly considering the media articles that demonstrably and favourably discussed the applicant’s artworks across four countries and continents. The Tribunal is satisfied on this evidence that the applicant has received at least some level of international recognition for his artwork.

28. The Tribunal considers that regarding the regulatory requirement that the applicant have a ‘record’ of international achievement, the Tribunal notes 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. A record is an aggregation or a list, not necessarily a large aggregation or a long list: see Zhang v MIMA & Anor [2007] FMCA 664 at [36][37]. The Court in Zhang said:

    In essence, the Tribunal found that the applicant's work did not amount to a 'record' because there was not enough of it. This was the wrong approach as the regulation does not qualify the word 'record' in the way impliedly understood by the Tribunal, and the policy requirement cannot affect the proper construction of the regulation. Neither the terms of the regulation nor the ordinary meaning of the word 'record' indicates that it should be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time.

29. Relying on this reasoning, the Tribunal considers the evidence that the applicant has had multiple internationally recognised artworks, enough to satisfy the definition of the word ‘record’, in that it need only be a list of some kind and need not be lengthy or accrued over a substantial period.

30. Regarding the regulatory requirement that the applicant’s record in this field be considered outstanding or exceptional, the Tribunal relies on the ordinary definition of the words, in that they mean unusual, atypical, noticeable, or remarkable, as set out in the Merriam Webster English Dictionary. The Tribunal accepts that it is out of the ordinary for an artist to have artworks exhibited in and commissioned by two different governments worldwide and to feature in media articles across four continents. Regardless of the considerations of the degree of international recognition, the Tribunal considers it satisfactory that there has been international recognition of some kind and that the evidence demonstrates that this has attracted the attention of media critics. This leads the Tribunal to find that the applicant’s artwork has come to some prominence to be discussed in this way. Again, it is arguable as to what level or degree of prominence the applicant has reached; however, the Tribunal finds it unnecessary to make a finding about the specific level or degree of prominence and is satisfied that it is enough to simply find that the applicant’s artwork has garnered international recognition on multiple occasions.

31. The Tribunal notes that the applicant presented oral and documentary evidence regarding his work as the founder of the Kalakshetra Art and Music School for clients with disabilities. The applicant submitted documents to show the organisation is an approved NDIS service provider and provided client testimony regarding the progress people had when engaging in the applicant’s services. The applicant made submissions regarding his work as a musician and composer that featured on YouTube and his work as an author (that appeared to be self‑published). The Tribunal places little favourable weight on the applicant’s submissions regarding his musical and literary work given it considers much of this work has been promoted and published by the author himself. Although the works appear on internationally accessible platforms, the Tribunal is not satisfied that they have been internationally recognised, nor that they have been assessed as exceptional or outstanding, in any substantive way. The applicant submitted that the Tribunal take note that it is a ‘rare’ quality for an artist to be able to write, paint and make music and not simply specialise in one of those areas. The Tribunal is not persuaded that this submission takes the applicant any further with regards to satisfying the regulatory criteria in any way and again, it places little favourable weight on it.

32. Despite this, given these findings outlined above in paragraphs 28–31, the Tribunal finds that the applicant meets the requirements in cl 858.212(2)(a).

33. As a result, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for Subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the grant of Subclass 858 visas.

    DECISION

34. The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:

    ·cl 858.212(2)(a) of Schedule 2 to the Regulations.

    Jade Murphy
    Member