Blokker (Migration)

[2018] AATA 5557

Blokker (Migration) [2018] AATA 5557 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Vincent Blokker

CASE NUMBER:  1726493

DIBP REFERENCE(S):  BCC2017/1812493

MEMBER:Amanda Mendes Da Costa

DATE:10 October 2018

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 applicant meets the following criteria:

·cl.858.212 of Schedule 2 to the Regulations.

Statement made on 10 October 2018 at 12:58pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence)(Class BX) visa – Subclass 858 – internationally recognised record of exceptional and outstanding achievement – academia and research – maritime security – definition of ‘exceptional’ – early career researcher – significant achievements – asset to Australian community – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 805.212, 858.212

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 on 11 October 2017 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 May 2017. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).

   Subclause (2) sets out the following requirements:

   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 approval 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.

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

7. The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met.

8. Paragraph 858.212(2)(a) requires the applicant has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research.

9. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement in the field of academia and research, particularly in relation to the subject of Maritime Security. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a).

10. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Regulations.

11. In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).

12. According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined to mean: ‘1. forming an exception or unusual instance; unusual; extraordinary; 2. extraordinarily good, as of a performance or product; 3. extraordinarily skilled, talented, or clever.’ It also defines the word ‘outstanding’ to mean: ‘1. prominent; conspicuous; striking; 2. that continues in existence; that remains unsettled, unpaid, etc.; 3. standing out; projecting; detached; 4. that resists or opposes.’

13. The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of 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 Affairs [2000] FCA 293 (Gaffar’s case) at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’. The Tribunal also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity. The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an ‘internationally recognised record of exceptional and outstanding achievement’. Therefore Gaffar’s case has limited application in the current context. The Tribunal acknowledges however that, while the applicant need not be a ‘national living treasure’, 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.

14. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, which it considers apposite. The Tribunal notes the comments of Kiefel J at [49]–[50]:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

15. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

16. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase ‘internationally recognised record of exceptional and outstanding achievement’. The Tribunal further notes that the Departmental guidelines (Procedures Advice Manual 3, or PAM 3) state inter alia the following:

    applicants should be very eminent in the top echelons of their ‘field’;

    they should demonstrate extraordinary and remarkable abilities and be superior to others in their ‘field’;

    claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement;

    a single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as a ‘record of exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future;

    an achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and would attract similar acclaim in those countries;

    an applicant would be expected to have achievements remarkable in relation to that field and in relation to other participants in that field. An applicant should be at the very top of their ‘field’.

17. While the Tribunal may have regard to PAM3 in considering whether an applicant’s achievements amount to ‘exceptional and outstanding’ achievement in one of the prescribed areas, it is mindful that it should not treat Departmental policy as determinative, but must bring its consideration back to the terms of the legislation.

18. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

    Documentation provided to the Tribunal

19. The Tribunal notes that it has been provided with the following documentation:

    ·Written submissions prepared by the applicant, dated 18 August 2018.

    ·Payment Order, Maastricht University, dated 16 September 2015.

    ·Governance letter and grading form, Maastricht University, dated 4 September 2015.

    ·Email to the applicant from Dr Mitchell Belfer, dated 2 September 2015.

    ·Applicant’s notes, prepared as an ‘aid memoire’ for the hearing.

    ·Reference letter from Dr Karin von Strokirch, dated 24 August 2018.

    ·Reference letter from Dr Tony Lynch, dated 25 August 2018.

    ·Reference letter from Professor Helen Ware, dated 28 August 2018.

20. The Tribunal has also considered the following documentation regarding the applicant’s achievements, which were provided to the Department:

    ·Reference letter for the applicant, by Professor Annabelle Duncan, dated 25 February 2015.

    ·Examiner’s comments of Mr Jim Bose, regarding the applicant’s PhD thesis.

    ·Applicant’s statement, dated 19 May 2017.

    ·Form 1000 Nomination form signed by Dr Karin von Strokirch, dated 18 May 2017.

    ·Reference, Mr Berty Nayna, International Maritime Organization, dated 19 June 2015.

    ·Statement of Dr Tony Lynch, dated 31 June 2017.

    ·Academic transcript for the applicant, University of New England.

    ·Newspaper article published in The Armidale Express, dated 22 April 2018.

    Summary of the applicant’s evidence

21. The applicant was born in the Netherlands and completed his secondary school studies there. In 1999 he visited Australia as an exchange student, undertaking secondary school studies in Coffs Harbour, in NSW. In 2009, the applicant returned to Australia, where he completed a Bachelor of Arts Degree with a major in Politics and International Studies (2011) and Master’s Degree specialising in International Studies (2012) at the University of New England (UNE). He subsequently completed a Graduate Certificate in Human Resource Management (2013) before completing his PhD studies in maritime security at UNE in April 2017. The topic of his thesis was ‘The role of Non-State Actors in Maritime Security’.

22. Whilst undertaking his studies at UNE, the applicant occupied the position of Senior Resident fellow and Academic Co-ordinator for two of the University’s halls of residence. In these roles, the applicant was responsible for raising the academic profiles of the halls of residence, mentoring students and co-ordinating the activities of other academic mentors. The applicant spent five years in these roles. In recognition of his service, the UNE awarded the applicant the New England Award on two occasions, once when he graduated with his Master’s degree and the second when his PhD was conferred. The Tribunal notes that the New England Award is presented to students of the University who have been involved in social and community activities which contribute to the local community and the University.

23. In 2014 the applicant was employed as a casual academic at UNE, giving tutorials and lectures in the field of international relations and political science, reading and marking examination papers and contributing to the University’s online education platform as a tutor and facilitator of discussion forums for students.

24. In 2015, whilst undertaking his doctoral studies, the applicant spent approximately one month as a Visiting Researcher with the International Maritime Organization (IMO) in London. The Tribunal notes that the IMO is a specialised agency of the United Nations, which is an authority for the safety, security and environmental performance of international shipping. Its main role is to create and maintain a regulatory framework for the shipping industry, covering ship design, construction, equipment, manning, operation and disposal.

25. The applicant’s position at the IMO was funded by a scholarship he was awarded to fund research or participation in conferences. It is one of two such scholarships awarded to the applicant in recognition of his high academic achievement and research capabilities.

26. In 2015 the applicant was invited to join the Euro-Gulf Information Centre as an Associate. This is an honorary position, which the applicant continues to hold. The Tribunal notes that the centre is a non-government organisation which aims to build social, political, cultural and economic bridges between communities in Europe and the Arabian Gulf states.

27. Through his position at the IMO, the applicant was approached in early 2015 to supervise a Master’s degree student at Maastricht University in the Netherlands and be a co-examiner of his thesis. The topic of the student’s thesis also addressed issues of maritime security and, given the applicant’s expertise in this area he was chosen as a supervisor/co-examiner, despite the fact that he was yet to complete his own doctoral studies.

28. The applicant is also the author of an article titled ‘Somali Counter-Piracy Operations: A Blueprint for Southeast Asia?’ This was published in the Central European Journal of International and Security Studies in 2013. He has authored a second article which was published in the Social Alternatives journal in 2016. The Tribunal notes that the applicant is currently co-authoring a chapter for a book examining Senator Pauline Hanson’s approach to irregular migration and its effect on Australian public policy.

29. As noted by the delegate in his decision, the applicant has presented papers at university forums on topics such as European Union and Irregular Maritime Migration, Outsourcing Maritime Security to Non-State Actors, and the activities of Somali pirates.

30. Since completing his doctoral studies, the applicant has attempted to obtain employment with government and non-government organisations, in the field of maritime security. This has been difficult, given that the applicant is not a permanent resident of Australia. He is continuing to research and write on the topic and is meanwhile employed by a private educational organisation.

    Form 1000 material

31. Dr Karin von Strokirch is a Senior Lecturer in International Relations and Co-ordinator of the Bachelor of International Studies in the School of Humanities at UNE. In her statement attached to the Form 1000, she attests as follows:

    At present there is very little research (and indeed researchers) both within Australia and in a global context which focuses on these security issues and analyses the role of non-state actors. This alone makes Dr Blokker’s expertise exceptional and of international importance. Before commencing his PhD Dr Blokker undertook two research projects as part of other postgraduate work. One of these research projects on Somali piracy was subsequently published by a prestigious international journal which reflects well on the originality and quality of Dr Blokker’s research as well as his writing skills. Resulting from this publication, he was invited to be a fellow at the Euro-Gulf Information Centre, a Rome-based research initiative that aims to build social, political, strategic, cultural and economic bridges between the people of Europe and the Arabian Gulf. During his doctoral candidature Dr Blokker undertook a research attachment with the UN’s International Maritime Organisation in London where he met with agency staff executives from Maritime representative organisations and diplomats. An attachment of this calibre is highly competitive and demonstrates the international recognition of Dr Blokker’s research and achievements. Findings resulting from this attachment were subsequently presented at the Australian Political Studies Association conference which attracts national and international experts. During the final stage of his PhD candidature Dr Blokker submitted a journal article which was commended by anonymous peer reviewers and published with only minor corrections—this is a remarkable feat for well-established academics let alone for a doctoral student. Similarly, Dr Blokker’s final thesis was very well received by two examiners both of whom have long-standing expertise in international relations and maritime security.

    Supporting evidence

32. Professor Duncan is the Vice-Chancellor and CEO of UNE. In her reference dated 25 February 2015 she opines that the applicant’s doctoral research on security in the Asia Pacific region is of immense and immediate importance.

33. In his comments on the applicant’s PhD thesis, Mr Bose describes it as a very fine thesis, well-written and clearly structured. He opines as follows:

    … Its primary aim was to present and examine the roles and contributions of Non-State Actors in shaping perceptions of and actions pertaining to maritime security. This it does with exemplary expertise. It provides a comprehensive treatment of its topic that makes an original and substantial contribution to its field.

34. Professor Helen Ware is the Foundation Professor of Peace Studies at UNE. In her letter dated 28 August 2018, she states:

    In many academic fields, the achievement of the distinguished record is in part significantly dependent upon the length of time the academic has been working in the field. In this case, however, where the field of expertise is a relatively new area of non-state actors in maritime security, quality is far more important than quantity and being up-to-date is an exceptionally vital aspect of expertise. As a recently graduated PhD candidate, Dr Blokker’s PhD was of first-class quality and he has maintained up-to-the-minute expertise in the area of Somali piracy, which no one else in Australia could match.

35. The Tribunal notes that as a former Australian High Commissioner/Ambassador, Professor Ware is cognisant of the Department of Foreign Affairs and Trade’s need for current expert advice regarding maritime security issues around the world from individuals with the networks to keep up-to-date with events on the high seas and the methods (both public and covert) which other countries are using to deal with these challenges. Professor Ware opines that Dr Blokker has the necessary access to the European maritime security networks which make his expertise of great value to Australia.

36. Dr Tony Lynch is a senior lecturer in philosophy and religion, politics and international relations in the School of Humanities at UNE. In his letter dated 25 August 2018 he opines:

    Dr Blokker is an early career researcher, as we all were at some time. And as such an early career researcher he is already making an impressive mark on his chosen field of interest, maritime security.

    Vincent obtained his PhD in 2007, and has two articles published in peer-reviewed journals already. At this stage of his career he is doing better than I did at the same time in my career – and I now have around 50 essays in world-class peer-reviewed essays, two books with a third out next month, and a dozen book chapters among other publications. Vincent’s abilities have already seen him invited to be a fellow of the Euro Gulf Information Centre – a signal honour at such an early stage in his career.

    In my view, and from my experience, this is already an exceptional record of achievement.

1. In addition to her Form 1000 Nomination of the applicant, Dr Karin von Strokirch has also provided a reference letter dated 24 August 2018. In that document Dr von Strokirch opines:

   Vincent is indeed an early career researcher who has produced excellent original research of significance to the national interest during his PhD candidature, much of which he published in refereed journals. Here is a case where the emphasis should be squarely on quality rather than quantity. Due to being at an early stage of his career Vincent is set to contribute to cutting-edge research for another three decades unlike someone with a long publication list who was on the cusp of retirement.

   As a Dutch national with and abiding knowledge of, and interest in, Europe, Vincent demonstrates world-class expertise on European Union policies towards non-state actors in maritime security. In turn, he has compared European and Australian policies in this domain (in a refereed journal article) which has offered great insights for refinement of Australia’s own strategies. Indeed his research in this area is so valuable I am currently engaged in collaborative research with Vincent on this topic.

   Applicant’s submissions

2. The applicant referred to the ‘Group of Eight Discussion Paper, the Changing PhD’ published in March 2013. He argued that this paper shows that research conducted by the Group of Eight Australian Universities defines a PhD as an Australian Qualifications Framework level 10 qualification, the highest level available. Additionally, the paper notes that ‘anyone achieving this qualification has demonstrated not only their ability to understand and use specific and specialised knowledge requiring the highest intellectual capabilities, they have also demonstrated their ability to go beyond what was already known to create new knowledge, new ways of thinking and potentially new ways for mankind.’

3. The applicant submitted that his PhD from an Australian university in itself demonstrated an exceptional and outstanding achievement commensurate with the highest intellectual capabilities.

4. The applicant further submitted that it was also significant that he was a highly specialised expert in his particular field of academia and research; that is, maritime security. He argued that not only are there few experts in the area of maritime security in Australia, there are even fewer who have PhD qualifications. Globally, there are few specialists in the same area of maritime security as the applicant.

5. The applicant referred to the delegate’s comments about the disparity in the length and breadth of research comparatively between the applicant and other academics. The applicant submitted that his authorship of two journal articles prior to the visa application compares favourably to other scholars of his age and experience, particularly as he had articles published in respected journals prior to completing his doctoral studies.

6. The applicant argued that his research attachment with the IMO and his supervisory role with Maastricht University were reflective of the significance of his research on a global scale and his international reputation.

7. The applicant referred to the delegate’s application of the Department’s Procedures Advice Manual (PAM3) to his decision. The applicant argued that the delegate erred in his application of PAM3 in interpreting the requirements of cl.858.212 as it applied to the applicant. The applicant submitted that the delegate’s finding that ‘Applicants should be very eminent in the top echelons of their field with extraordinary and remarkable abilities which are considered superior to their peers’ appears to raise the required standard much higher than a literal understanding of cl.858.212(2).

8. The applicant submitted that the delegate erred in giving a broad definition to the term ‘field’ as encompassing all academics and researchers rather than those in the area of maritime security. The applicant argued that he was well positioned to be within the top echelons of the area of maritime security.

9. The applicant stated that although the words ‘exceptional’ and ‘outstanding’ require some qualification, the delegate erred in comparing his achievements to those of his nominator and other academics of similar age and experience. The applicant suggested that the delegate also erred in failing to take into consideration the substantial length of time required to publish journal articles. Given his age, it was impossible for him to rival the output of older academics.

10. It was further submitted by the applicant that the delegate’s interpretation of ‘peers’ was unduly wide. He argued that a dictionary understanding of the word is ‘one that is of equal standing with another; one belonging to the same societal group especially based on age, grade or status’ and that it would be fairer to compare his achievements to other academics of similar age, grade and experience.

11. The applicant contended that an ‘internationally recognised record of exceptional and outstanding achievement’ could not only be measured by a quantitative examination of his journal articles but also by taking into consideration the qualitative nature of his works.

12. Finally, the applicant submitted that he had demonstrated an internationally recognised record of exceptional and outstanding achievement and his primary reason for applying for a Distinguished Talent visa was his desire to continue contributing to research, policies and practices which would enhance Australia’s international standing on issues in relation to maritime security.

13. Clause 858.212(2)(a) requires that the applicant has an internationally recognised record of exceptional and outstanding achievement in one of five areas. In the case of Dr Blokker, he claims to have such a record in the area of academia and research.

14. The Tribunal finds that although Dr Blokker’s career is in its early stages, subclause (2)(a) does not require that an applicant be active in that area for any particular length of time before his/her achievement be considered exceptional and outstanding.

15. The Tribunal is satisfied that although Dr Blokker’s career is not as lengthy as his nominator and referees and he is yet to become a ‘national living treasure’, his career is already unusual or out of the ordinary and is internationally recognised as such. In this context the Tribunal attaches significant weight to the applicant’s research position which is with a prestigious and specialised agency of the United Nations.

16. The Tribunal notes that the applicant’s PhD thesis was described as original and of exceptional quality by Dr von Strokirch and ‘first class’ by Professor Ware. Its topic is of particular significance and benefit to Australia’s maritime security. The applicant has also co-authored two articles in peer-reviewed journals on subjects relevant to his area of expertise. He is currently in the process of co-authoring a third article with others, including Dr von Strokirch. The Tribunal is further satisfied that Dr Blokker’s research attachment with the IMO and his supervisory role with Maastricht University are reflective of the significance of his research in his field and his international reputation.

17. Accordingly the Tribunal finds that cl.858.212(2)(a) is met.

18. Clause 858.212(2)(b) requires that the applicant ‘is still prominent in the area’. Prominent is not defined in the Regulations. However, Departmental policy provides:

    … ‘prominent’ should be accorded ordinary dictionary meaning within context; appropriate synonyms are conspicuous and important.

    It is essential for the integrity of the distinguished talent program that successful applicants not be assessed on past performance only but require current prominence in their area.

19. On the basis of the ordinary dictionary meaning of the term ‘prominent’, it is defined in the Macquarie Dictionary Online as:

    1.standing out so as to be easily seen; conspicuous; very noticeable: a prominent feature.

    2.standing out beyond the adjacent surface or line; projecting.

    3.important; leading; well-known: a prominent citizen.

20. The Tribunal is satisfied that at the time the application was made the applicant was still prominent in the area. He had completed a ‘first class’ PhD thesis on maritime security; had two articles published, as previously described; had been a visiting researcher at the IMO; and supervised a Master’s degree student writing, while writing his own thesis on non-state actors in maritime security.

21. Accordingly the Tribunal finds that cl.858.212(2)(b) is met.

22. Clause 858.212(2)(c) requires that the applicant ‘would be an asset to the Australian community’. The Tribunal accepts that given Australia’s position as an island nation, maritime security is critical to Australia’s economic and social prosperity. The Tribunal further accepts that there are relatively few academics who specialise in this area and that this in turn affects the numbers of professionals who are engaged in public policy development and publishing material regarding maritime security. The Tribunal considers that maritime security is relevant to Australia’s shipping and illegal fisheries industries, bio-security considerations and immigration. Accordingly the Tribunal finds that the applicant’s qualifications, experience and interest in the area of maritime security demonstrate that he would be an asset to the Australian community. Accordingly cl.858.212(2)(c) is met.

23. Clause 858.212(2)(d) requires that the applicant ‘would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area’. The Tribunal accepts that Dr Blokker is currently experiencing some difficulties in obtaining full-time employment in his chosen field and that this is a result of his uncertain migration status. The Tribunal acknowledges that the positions suitable for the applicant (particularly those in government) are unlikely to be given to applicants without a permanent visa. However, the Tribunal is satisfied that if his visa application is granted, Dr Blokker would have no difficulty in obtaining employment or in becoming established independently in Australia in the area. Accordingly the Tribunal finds that cl.858.212(2)(d) is met.

24. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement and lodged at the time of application. Two completed forms 1000 were lodged by the applicant. The first was signed by Dr Karin von Strokirch and dated 18 May 2017. Dr von Strokirch has over 20 years’ experience as an academic at UNE, teaching several subjects in the field of international relations to both undergraduate and graduate students. Her publications include co-editing a book and authoring several book chapters and approximately 30 journal articles on international politics and global security. She has presented papers at academic forums in Australia and overseas and acted as a peer reviewer for publications involved in international and political studies. Dr von Strokirch has also provided media commentary on foreign policy and international relations for ABC Radio. Given her academic history and achievements, the Tribunal is satisfied that she has a national reputation in the field of academia and research and accordingly finds that cl.858.212(2)(e) is met.

25. The second form 1000 was signed by Dr Tony Lynch and dated 31 June 2017. Given that this document does not meet the time of application requirements of cl.858.212(2)(e) and the date is clearly incorrect, the Tribunal has not treated it as a nomination form for the purpose of the visa application. However, the Tribunal has taken into consideration the comments made by Dr Lynch in this document about the applicant’s achievements.

26. The Tribunal is satisfied that given the applicant’s age at time of application (34 years), the provisions of cl.858.212(2)(f) do not apply to him.

    CONCLUSION

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

28. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 858 visa. If the applicant is found to meet the remaining criteria, then he is entitled to the grant of a Subclass 858 visa.

    DECISION

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

    ·cl.858.212 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member