Ahangama Baduge (Migration)

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, by an applicant who claimed to have an internationally recognised record of exceptional and outstanding achievement as a cricketer. The applicant's claims were considered by the Tribunal, with the Honourable Amanda Mendes Da Costa presiding.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 858.212(1) of the Migration Regulations 1994, specifically subclause (2). This subclause requires an applicant to demonstrate an internationally recognised record of exceptional and outstanding achievement in a relevant field, continued prominence in that field, that they would be an asset to the Australian community, and that they would have no difficulty obtaining employment or establishing themselves independently in Australia in that field. The applicant had not made claims under subclause (4).

The Tribunal considered the meaning of "exceptional and outstanding achievement" in the context of sport, noting dictionary definitions and relevant case law. While acknowledging that the applicant need not be a "national living treasure," as per *Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs*, the Tribunal found that the wording of the current clause, requiring an "internationally recognised record of exceptional and outstanding achievement," was more stringent than that considered in *Gaffar's* case. The Tribunal concluded that the circumstances meeting this requirement would vary across different fields, and some would necessitate a higher level of knowledge and skill to distinguish an applicant from the ordinary or merely competent.

Given the findings, the Tribunal remitted the applicant's applications for Distinguished Talent (Residence) (Class BX) visas for reconsideration by the Department. The remittal was made with the direction that the applicant meets the criteria in clause 858.212 of Schedule 2 to the Regulations, allowing the Department to consider the remaining criteria for the visa subclass.