Choi (Migration)

[2018] AATA 90

Choi (Migration) [2018] AATA 90 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taehwa Choi
Mrs Young nim Koo
Ms Ji Seon Choi
Ms Jieun Choi

CASE NUMBER:  1517368

DIBP REFERENCE(S):  BCC2015/1932397

MEMBER:R. Skaros

DATE:1 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first, second and third named applicants Distinguished Talent (Residence) (Class BX) visas.

The Tribunal has no jurisdiction in respect of the fourth named applicant (Ms Jieun Choi).

Statement made on 01 February 2018 at 1:40pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Smallgoods maker – European and Asian smallgoods – Local level competition – Limited appearances on television – Nationally recognised achievements

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

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 27 November 2015 to refuse to grant the applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 6 July 2015. The delegate refused to grant the visa on the basis that cl.858.212(2)(f) was not met as the delegate was not satisfied that the primary visa applicant (the applicant), who was over 55 years of age when the application was made, had demonstrated that he would be of exceptional benefit to the Australian community.

3. The applicants applied for review of the decision on 16 December 2015. A copy of the delegate’s decision record was provided to the Tribunal. During the course of the review, the Tribunal received advice that the fourth named applicant, Ms Jieun Choi, wished with withdraw from the review. As Ms Jieun Choi has now withdrawn from the review, the Tribunal has no jurisdiction in respect of her application.

4. The applicants were represented in relation to the review by their registered migration agent.

5. The applicant appeared before the Tribunal on 26 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr John Cho and Mr Horst Schurger. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Distinguished Talent Class BX visas are permanent visas for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided specialised assistance to the Australian Government in matters of security. There is nothing before the Tribunal to suggest that the applicants have provided specialised assistance to the Australian Government on matters of security.

8. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, cl. 858.212(2), requires the applicant to demonstrate that he:

   (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.

9. In this case, because the primary applicant was over 55 years of age when the application was made, he must also demonstrate that he would be of exceptional benefit to the Australian community”: cl.858.212(2)(f). In addition, the applicant must provide a completed approved form 1000. This form has been completed by the Australian Meat Industry Council and complies with the legislative requirements.

10. The issue in the present case turned on whether the applicant meets the requirements in cl.858.212(a). In determining this issue, the Tribunal has had regard to all of the relevant evidence before it, including the supporting documents and submissions on the Department and the Tribunal’s files, as well as the oral and written evidence provided at the hearing, which the Tribunal sets out as follows.

11. The applicant applied for the distinguished talent visa on the basis of his skills in a profession, namely Smallgoods Maker. The applicant provided evidence of his qualifications and work experience with the visa application. The evidence indicates that he completed trade qualifications in South Korea in the areas of food processing and as a craftsman cook (western food/master butcher) and that he completed a course in food nutrition and technology. He worked for the Hilton Hotel in South Korea from 1983 to 1992 as an assistant chef de partie / butcher. He then worked as the production manager at Uncle Cho’s in South Korea from June 2000 to May 2004, at Swiss Delicatessen Food Co in South Korea from 2004 to 2007 and at Similie Co., also in South Korea, from 2007 to 2011. He travelled to Australia in 2012 and, after working for a food processing company (JR Meats) for a short period, commenced working for Hahn’s Food Services Group Pty Ltd t/a Hahn’s Quality Meats / Legend Food Pty Ltd t/a Hahn’s Quality Meats (Hahn’s), who continue to employ him.

12. In the nomination form, the Chief Executive Officer of the Australian Meat Industry Council (AMIC), Mr Kevin Cottrill, stated that the applicant was trained in South Korea and had a master’s qualification in butchering, slaughtering and smallgoods manufacturing. It was stated that the applicant achieved recognition for his exceptional ability in European and Asian smallgoods while working at the Hilton hotel in Seoul. It was stated that the applicant had developed recognition for his exceptional skills by the industry and the teaching facilities where he has willingly shared his knowledge and ability with teaching staff and students.  He stated that the industry has recognised the applicant’s capability through a long list of awards and medals for the products submitted by his employer for peer evaluation. He notes the value that the applicant makes to his employer’s business and states that the applicant would be of exceptional benefit to the Australian community through the sharing of his knowledge and abilities with other smallgoods professional which is part of the employer’s future expansion plans.

13. Employment references from the applicant’s former employers were also provided with the application, including from the Hilton Hotel, Uncle Cho and Swiss Delicatessen which confirmed the applicant’s employment in South Korea. The letter from Uncle Cho’s states that the applicant managed the company’s production and, using his expertise and knowledge in German delicatessen, developed new products which resulted in the increase of sales for the company.

14. A number of letters of support from industry leaders and business owners in Australia were also provided with the application. Mr Horst Schurger, who is a qualified master butcher and smallgoods maker with over 40 years of experience, including teaching at technical colleges and TAFE, stated the following about the applicant. That the applicant is a highly proficient small goods maker. Based on his own experience, he can verify that the applicant’s qualifications and experience is of extremely high-class skill level and would be of extreme value to Hahn’s Foods and its long term success due to his niche skills.

15. Mr Keith Ireland, who has been a Judge at the Royal Agricultural Society Meat/Smallgoods Competition since 2002 and has over 44 years of experience in the meat industry sector, stated the following in his letter of support for the applicant. That he met the applicant at his place of employment (Hahn’s Butchery) and had an opportunity to look at his portfolio of the products he had made over the years in Korea which were mostly European emulsifying/smoked products. He observed the applicant making one of his products on-site. That the area of success for the applicant is cooked sausages products which won a number of medals at the AIMC national competitions and the Royal Agricultural Society deli meat competitions. He stated that to win these medals over several years indicates the skill level of the applicant and his team of small goods makers at Legend foods. He states that the applicant has demonstrated that he can make small goods to a high level of proficiency under New South Wales Food authority strict legislative requirements.

16. In her letter of support, Ms Helen Ho the director of Wagyu Angus Grill in Sydney, provides details of her dealings with the applicant and his development of the smoked duck breast which won the Melbourne Fine Foods Award and was launched her in restaurant. She states that this dish contributed to strengthening her business’ reputation as a fine dining establishment and she hopes to leverage the applicant’s skills to provide more unique dishes to the diners.

17. Mr John Cho, the Director of Hahn’s, also provided a number of support letters confirming the applicant’s employment, details of his business, the applicant’s background and the applicant’s contribution to the business (Hahn’s) and its success.

18. The applicant also provided evidence of gold, silver, and bronze awards issued by the Royal Agricultural Society of New South Wales (Sydney Royal Show) in 2014 to Legend Foods (Hahn’s) for excellence in respect of various products. Hahn’s also received bronze and silver medals awards at the Royal Melbourne – Fine Food Awards in 2014 for various classes of food items. Also provided was evidence of bronze and silver awards issued by the AMIC to Legend foods.

19. During the processing of the review, the Tribunal received further supporting documents, including financial documents for Legend Foods Pty Ltd (Hahn’s), advertisements for Hahn’s meat products, photographs of the applicant and his employer at the Fine Food Awards conducted by RASV and a trophy indicating that Legend Foods had been awarded first place in NSW/ACT AMIC Smallgoods Competition in 2016 (cooked products category). Also provided were copies of a number of bronze, silver and gold awards and medals awarded to Legend Foods (Hahn’s) for their various products at the Sydney Royal Show competitions, Melbourne Fine Foods Awards in 2014, AIMC and Australian Food Awards in 2014 and 2016. 

20. As the Tribunal was unable to find in favour of the visa applicant on the basis of the material before it, the applicant was invited to a hearing.

21. Prior to the hearing, the Tribunal received a detailed professional profile for Mr Horst Schurger which was consistent with information previously provided to the Department confirming Mr Schurger’s extensive experience as a master butcher, TAFE/College teacher and business owner. In addition, it also noted that Mr Schurger has been a judge for the Royal Agricultural Society in Melbourne.

22. At the hearing, the Tribunal explained to the applicant the reasons the Department had refused his application, namely that the delegate was not satisfied that he had demonstrated that he would be of “exceptional benefit to the Australian community”. The Tribunal noted that this was an additional requirement for applicants who are over 55 years of age at the time they applied for the distinguished talent visa. The Tribunal put the applicant on notice that before considering this issue, it considered it important to first determine whether he met one of the threshold requirements for the distinguished talent visa, which requires him to demonstrate that he has an internationally recognised record of exceptional and outstanding achievement in his profession of smallgoods maker.

23. The Tribunal noted that many of the terms of that provision are not defined in the legislation and that it would have regard to their ordinary meaning. The Tribunal also referred to the Department’s policy which provides guidelines on the terms of the legislative provisions. The Tribunal explained that it was not bound by policy, but considered some of it helpful in this case as it set out how applicants can demonstrate that they meet the requirements. It explained that the policy notes that applicants for the distinguished talent visa should be eminent and at the top of their area. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.  The Tribunal explained that the record of exceptional and outstanding achievement must also be ‘internationally recognised’ and that this suggests that the achievement must be recognised in more than one country and in countries where the profession is practised.

24. The Tribunal explained to the applicant that it is in the context of the above that it would assess the evidence in his case.

25. The Tribunal invited the applicant to give evidence about his background and career history and particularly any remarkable achievements he has had in Australia, his home country of South Korea and any other country. The applicant indicated that he had prepared a written statement detailing his experience and achievements and this was handed to the Tribunal.

26. The Tribunal had regard to the information in the written statement in which the applicant states the following. He graduated in food science and technology in South Korea and worked as a butcher’s hand at the Hilton hotel where he learned to make European smallgoods from leading master butchers from Germany, Switzerland and Austria. He studied and developed ways of making salami and fermented products in Korea where it had not been done before. He appeared on numerous television shows and was interviewed on the art of making European sausages in Korea. He stated that in Korea the smallgoods market was small and limited to domestic sales and he decided to explore and advance his skills in Australia. He initially started working at JR Meats which was involved in exporting carton meat and wholesaling. He found a business (Hahn’s) that was interested in making sausages and while he was working there he created different kinds of sausages including sausages with Korean flavours and blending Australian and European styles. As the products developed the response from customers was positive and Hahn’s expanded the distribution of its products to Korean grocery stores in Sydney and Melbourne. The applicant was given an opportunity to participate in industry smallgoods competitions and was invited to participate in the competitions from the organisers. They participated in the producer category: Asians making European smallgoods and took out first places. In relation to his age, he stated that in the industry it takes time to become highly skilled and knowledgeable. He did not possess the skills he had in his 30s or 40s and worked hard and was determined to become skilled.

27. The Tribunal asked the applicant if he had participated in any international competitions as a smallgoods maker. The applicant stated that he had not because of background reasons. He stated that under Australian food laws they cannot export smallgoods to other countries and this is why he cannot participate in international competitions.  The Tribunal asked if he had participated in any competitions when he was in Korea, he stated no, not in Korea. The Tribunal asked the applicant if he had personally featured in any articles or magazines such as food guides, the applicant stated that he had. When asked if the evidence had been provided, the applicant was not sure. The applicant’s employer, Mr Cho, then stated that the applicant had appeared in a newspaper in the Korean language and also appeared on television. He undertook to provide a copy of the article.

28. The Tribunal asked the applicant about his television appearances. He stated yes he had appeared on television many times. When asked to provide details, he stated that he appeared on a program, a food show, and they observed him making smallgoods (Salami). He stated that media came to their workplace while he was there to show how Salami was being made. He said he also appeared on a cooking show program on TV when he was in Korea. When asked if there was anything else he wanted to say about his career or any other major achievements, he stated that while he was in Australia he attended many competitions and won the prizes.  He stated that the importation of smallgoods from Korea is prohibited and so he used Australian meat to produce Korean flavours (bulgolgi) which are distributed through Korean grocery stores in Australia.

29. The applicant’s employer, Mr John Cho indicated that he wanted to give evidence regarding the applicant’s skills. After providing background information about his business and the applicant’s employment, he stated that they entered industry competitions, starting with the fresh sausage competition and that the applicant proved through this that he could make freshly cooked sausages. He stated that the business invested in small goods production and bought basic smallgoods making equipment and entered into industry competitions and this was how they verified the applicant had outstanding skills.

30. Mr Schurger also added that in his 40 years of in being business he had not come across a Korean butcher and the applicant was the first he had encountered. He stated that the Korean people in Australia should have their own butcher. Mr Schurger stated that his company imports the highest quality goods from Germany and that the applicant has been working with these products. He stated that the use of these high quality ingredients demonstrate that the applicant knows what he is talking about that he is highly skilled in making smallgoods.  Mr Schurger stated that international competitions for small goods are only ever held in Europe.

31. The Tribunal explained to the applicant that it had regard to the supporting evidence provided, including the medals and awards from the AMIC and RASV and Royal Easter show in Sydney, and noted that the awards/medals were issued to his employer (Hahn’s) – rather than to him personally in recognition of his skills and individual achievements. The Tribunal observed that the purpose of these awards as noted on some of the literature appears to be for the promotion of the business entering these competitions and the distribution of its products. The Tribunal acknowledged that there is always an individual behind these types of awards and accepted that he was the individual who produced the products which won the awards. The Tribunal further noted that it was not uncommon for many businesses to enter these types of competitions, which are run by industry bodies, to promote a business’ products and increase sales. The Tribunal noted that, for example when observing the general information about the Australian Meat Industry Council (AMIC) and other bodies that offer these competitions it appears that the purpose of organising these competitions is to provide a platform for businesses operating in that industry to promote their products rather than identifying or recognising individuals who have an outstanding and exceptional talent as smallgoods makers. The Tribunal noted a further concern, namely that many of these competitions appear to be at a local level, some were state based and a few were between states (national competitions), but none of them were at an international level.

32. The Tribunal invited the applicant to comment on its issues it raised in relation to the awards and medals. In response, the applicant stated that as a smallgoods maker he cannot individually achieve these awards because of the limitation, particularly financially as he would need to buy the machinery for smallgoods to demonstrate his skills independently. He stated that he would have to carry his own machinery which is financially difficult for any individual to achieve.

1. The applicant’s employer Mr Cho also responded stating that international achievements in the smallgoods industry were different from other industries such as the wine industry which can easily be exported. He stated that there are international protocols where you cannot trade these goods. He said that there was an international competition last year in Germany, which they attempted to enter. He noted that someone from Australia had won an award in Germany and they enquired about it. He stated that they contacted Australian quarantine and had made enquiries with the organisers in Germany and found that there was no protocol between Australia and the EU. He stated that their only option was to enter the competition with kangaroo meat but they had no equipment for kangaroo meat and that when making small goods the equipment becomes part of the competition for a smallgoods maker as he would have to look after the machine to produce the best products. Mr Cho stated that they were invited to go to Germany and enter the competition but did not have contacts there and this was the last time they tried. He stated that other countries would not be able to participate in Australian competitions because they would not be able to export into Australia due to legislation which restricts trade of smallgoods. He stated that the policy should therefore not really apply to the applicant’s case. Mr Cho stated that the policy says where the profession is practiced the applicant should be at the top of his field and that the applicant was at the top of his filed in Korea and Australia and the Tribunal should consider the limitations placed on the industry.

2. Mr Cho stated that in relation to the Royal RSAV he agreed that the competitions were for the purpose of promoting the products but the industry competition were also to determine where you stand within the industry for certain products. He stated that while the Royal Melbourne and Sydney shows is used for marketing they are awarded to a company and it still relates to an individual product that is made by an individual and in their case it is Mr Choi (the applicant) that makes those products. He stated that no competition in the industry asks for individual names and that they have to enter the competitions with their ABN number.  Mr Schurger also stated that he has been a judge for these competitions and it always goes on the business name that enters their products in the competition and that there is never any mention of the name of the person who makes the goods.

3. The Tribunal explained to the applicant that it appreciated the nature of the competitions and acknowledges the limitations they have faced regarding the competitions, but it also had to consider the evidence against the terms of the legislative provisions which requires him to show that he is internationally recognised as having an outstanding and exceptional record of achievement.

4. The Tribunal also discussed with the applicant the requirement that he would be of exceptional benefit to the community given his age, however, it is not necessary to set out the evidence given in relation to this requirement as the Tribunal was not ultimately satisfied that the applicant met the requirements in cl. 858.212(2)(a).

5. After the hearing, the Tribunal received submissions from Mr Cho, much of which had already been made orally at the hearing, and supporting documents. Mr Cho’s written submissions, where relevant, have been considered by the Tribunal further below.  The relevant supporting documents included the list of awards and medals won by Hahn’s in competitions in Australia between 2014 and 2016, evidence of which had been previously provided to the Department and Tribunal, information regarding trade between South Korea and Australia including restrictions on meat/smallgoods products, and goals and strategies of Hahn’s. Mr Cho provided email correspondence dated 6 and 7 April 2016 as evidence of Hahn’s enquires about entering the 2016 international competitions in Germany and an email indicating that Hahn’s had been nominated for the ethnic business awards in 2017.

6. Also provided was a print out of an online article in the Korean language (together with English translation) which appeared in the Hanho Korean Daily, dated 28 January 2016, featuring Mr Cho and the applicant holding trophies at Hahn’s Butcher shop in Eastwood. The article details the awards won by Hahn’s and notes that the products were created by the applicant who had a successful career in Korea, including appearing on a television show as a person who makes good salami.

7. The Tribunal also received a letter from Mr Stephen Kelly, the Managing Director of Sutcliffe Meats, detailing his company’s relationship with Hahn’s and potential business opportunities. Mr Kelly stated that the applicant has been instrumental in developing products and that they were working with Hahn’s to explore the possibilities of distributing Korean style dishes developed by the applicant. He considered the sausages developed by the applicant to be at the very top of the list in terms of quality. He does not believe that the applicant’s skills could be easily found in Australia as he brings a level of expertise that is acquired over many years which will result in economic benefits of trade between the two countries.

8. Having carefully considered all of the evidence before it, the Tribunal accepts that the applicant is an experienced, highly skilled and highly regarded smallgoods maker who has been of significant benefit to his Australian employer. The Tribunal however is not satisfied that the applicant has satisfactorily demonstrated, as required by the legislations, that he has an internationally recognised record of exceptional and outstanding achievement as a smallgoods maker: cl.858.212(2)(a).

9. The letters of support provided from Mr Schurger and Mr Ireland, both of whom have over 40 years of experience in the meat/smallgoods industry in Australia and who are judges of various categories in smallgoods competitions in Australia, state that the applicant is a highly proficient smallgoods maker, that his skills are of a high class and that he has demonstrated a high level of proficiency as a smallgoods maker in accordance with NSW Food Authority requirements. While the evidence is indicative of the applicant’s high level of competency as a smallgoods maker, it does not suggest that the applicant’s skills are extraordinary or remarkable in comparison to other smallgoods makers. And even though these letters of support refer to the applicant’s career history and his experience in South Korea and his involvement in the development of smallgoods which have won awards in Australia, they do not establish that the applicant’s achievements as a smallgoods maker are recognised at an international level.

10. In relation to the applicant’s achievements in South Korea, the evidence to support the claim that his record of achievement in that country was exceptional and outstanding is very limited. In the statement provided to the Tribunal, the applicant indicated that the smallgoods market in Korea was small and that he travelled to Australia to advance his skills. This suggests that there was limited opportunity for the applicant to establish a profile in South Korea as a smallgoods maker. The references from the applicant’s employers in South Korea indicate that the applicant was a skilled and creative smallgoods maker who developed some products that resulted in increased sales for the business, such as for Uncle Cho’s, however  they do not indicate that the applicant had a notable profile in South Korea as a distinguished smallgoods maker. The Tribunal accepts the evidence that the applicant appeared on television in South Korea, the Tribunal notes however that one of the appearances was at his place of work where he was observed making salami and the other was for a cooking show. Mr Cho submitted that the applicant’s two appearances on a television programme about smallgoods making in Korea shows that he is at the top of his field in Korea. The Tribunal is not satisfied that the applicant’s limited appearances on television in South Korea demonstrate that he was recognised as an exceptional and outstanding smallgoods maker in that country.

11. The Tribunal has also considered the numerous awards and medals won by Hahn’s for smallgoods competitions organised by the AMIC, Royal Melbourne and Royal Sydney. The issue for the Tribunal however, as discussed with the applicant at the hearing, is that the competitions are not international, and are conducted on a local or at best national level, and nor do they recognise an individual’s achievements. The Tribunal accepts the explanation provided at the hearing that competitions can only be entered into by businesses. This, in the Tribunal’s view, suggests that the purpose of these competitions is for businesses to raise their profile rather than recognise an individual’s remarkable or extraordinary skills in comparison with others in that profession.

12. The Tribunal accepts that the awards and medals won by Hahn’s were for smallgoods products developed by the applicant. While these achievements demonstrate the applicant’s high level of skill and proficiency as a smallgoods maker, they do not necessarily show that the applicant’s achievements and skills are recognised as being extraordinary or remarkable in comparison to other smallgoods professionals in Australia. Other than the single article in the Hanho Korean Daily which featured the applicant, there is very limited other evidence to show that the applicant’s achievements have led to him being known as an eminent smallgoods maker in Australia. The Tribunal further notes that the applicant’s achievements of winning awards and medals for his employer would, at best, be considered nationally recognised achievements and would not therefore meet the requirement that the achievement is ‘internationally recognised’.

13. The Tribunal acknowledges that there are restrictions on the trade of smallgoods and accepts that this has contributed to the difficulties faced by the applicant participating in international competitions which are held in Europe. In the post hearing submissions, Mr Cho contended that given the applicant’s skills and achievements have been proven in Australia and Korea, and relying on the statement from Mr Schurger who is a judge and smallgoods master, the applicant would also be able to acclaim similar results in any other country where the field of smallgoods making is practised. The Tribunal cannot speculate on how the applicant would perform if he is able to participate in the smallgoods competition in Europe and nor is it necessary to do so because the regulations require the applicant to demonstrate that he has an internationally recognised record of exceptional and outstanding achievement as a smallgoods maker and not that he has the potential to achieve this international recognition in future. The evidence currently before the Tribunal when considered in its totality, does not in the Tribunal’s view demonstrate that the applicant has an internationally recognised record in his profession.

14. Mr Cho indicated that smallgoods making is practised in many European countries and is an internationally practised profession. The applicant has indicated that he was initially trained in South Korea by German, Swiss and Austrian master butchers. In the context of this evidence, the Tribunal considers that if the applicant did have an international profile as an outstanding smallgoods maker then he would have had some profile in Europe even if he was not able to participate in competitions in Europe due to the strict protocols, for instance, if he had featured in food guides, articles, magazines or shows.  

15. The Tribunal has considered the remaining evidence, including the letter of support from Ms Ho, whose fine dining restaurant has benefited from the products developed by the applicant, and Mr Kelly from Sutcliff meats, who attests to the applicants high level of expertise which may result in future trade opportunities, and to Mr Cho’s numerous letters of support and oral evidence attesting to the applicant’s high level of expertise in the area of smallgoods making, the development of smallgoods which has won industry awards and led to the expansion and success of Hahn’s and the significant contribution the applicant has made, and has the potential to make, to that business. These letters of support, in the Tribunal’s view, merely demonstrate that the applicant is a highly regarded and proficient smallgoods maker who has been of significant benefit to his sponsoring employer and to other businesses with whom Hahn’s has had commercial dealings, but they do not support a conclusion that the applicant’s skills as a smallgoods maker are internationally recognised as being exceptional and outstanding.  

16. The Tribunal has considered all of the evidence before it, but for the above reasons, is not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the profession of smallgoods maker.

17. As the applicant does not meet cl.858.212(2)(a) he does not meet cl.858.212 as a whole and it is therefore unnecessary to consider any of the other requirements for the visa.

18. As indicated above, the fourth named applicant has now withdrawn from the review. The second and third named applicants applied for the visa on the basis of being members of the first named applicant’s family unit. As the Tribunal has affirmed the decision in respect of the first named applicant and as there is no evidence to suggest that second or third named applicant meets the primary criteria for the visa, the Tribunal must also affirm the decision in relation to them.

    DECISION

19. The Tribunal affirms the decision not to grant the first, second and third named applicants Distinguished Talent (Residence) (Class BX) visas.

20. The Tribunal has no jurisdiction in respect of the fourth named applicant (Ms Jieun Choi).

    R. Skaros
    Member