Chung (Migration)

Chung (Migration) [2019] AATA 949 (11 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yi-Chang Chung
CASE NUMBER:  1812349
DIBP REFERENCE(S):  BCC2016/1611717 BCC2018/4036345 BCC2018/4036346
MEMBER:Amanda Mendes Da Costa
DATE:11 April 2019
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 11 April 2019 at 3:22pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the sport of breakdancing – outstanding record as breakdancing competitor, trainer and judge – recently competing in international events – judge at international events – still prominent in the field – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 858.212
CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 April 2018 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).
The visa applicant applied for the visa on 2 May 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in cl.858.212(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations) in that whilst he had an internationally recognised record of exceptional and outstanding achievement in the sport of breakdancing, he was not still prominent in that sport.
The applicant appeared before the Tribunal on 1 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Fox and Mr Rueben Fuentes by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is still prominent in the sport of breakdancing and meets the criteria in cl.858.212(1), which requires the applicant to meet the specific 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.
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.
The applicant has not made any claims in relation to cl.858.212(4).
Clause 858.212(2)(a) requires the applicant has an internationally recognised record of outstanding achievement in a profession; a sport; the arts; or academia and research.
The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a breakdancer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(ii) as belonging to a sport for the purposes of cl.858.212(2)(a).
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.
In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a).
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.’
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 and Indigenous Affairs [2000] FCA 293 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 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 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.
The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, as apposite. The Tribunal notes the comments of Kieffel 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.
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.
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 Department of Immigration (the Department) guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement (PAM – Sch-2 Visa 858 – Distinguished Talent):
What does ‘exceptional’ mean?
For 858.212 (2) (a), applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in the field.
‘Internationally recognised’ in this context means that a person’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised.
‘Exceptional and outstanding’ should be accorded ordinary dictionary meaning within context.
Policy requirements
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 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 has would attract similar acclaim in those countries.
Given the ordinary dictionary meanings, in order to have a record of exceptional and outstanding achievement 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.
Assessing this criterion
In assessing the applicant’s record of achievement, officers may take into account information such as, but not necessarily limited to:
·     information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement.
·     supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia
·     awards or higher qualifications received from internationally recognised institutions or organisations.
·     details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international sporting bodies, sporting scholarships received a newspaper and magazine articles testing to achievements.
The policy guidelines in PAM3 reflect the following view in relation to the requirement of international recognition:
International recognition required
Achievement in a profession, a sport the arts or academia and research that has not would be not be recognised at an international level would not be regarded as exceptional and outstanding.
It is expected that an applicant’s achievements have would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well is international standing. In determining the international standing of the applicant, officers should consider:
·     the international standing of the country, with the applicant’s achievements were realised, in respect of that particular field.
·     the standing of the achievement in relation to Australian standards and new line the standing of the achievement in relation to international standards.
For example an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional outstanding achievement if the:
·     field is undertaken and recognised in a number of countries including Australia and new line.
·     achievement would be similarly recognised in relation to international and Australian standards for that field.
The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it. Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the Regulations, the Tribunal is required to depart from it. The Tribunal has taken into account the individual circumstances of the applicant.
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
The Tribunal notes that it has been provided with documentation attesting to the applicant’s career and continued prominence in the field of breakdancing. This includes:
·written reference of Sabrina Chou Wei Lung dated 25 October 2015;
·written references of Jo Hyeon Yoon dated 22 December 2015 and 20 January 2016;
·written reference of Michael Fox dated 10 April 2016;
·letter by Reuben Fuentes dated 24 January 2017;
·written references of Troy Daniels dated 22 February 2019 and 9 March 2019;
·written references of Bojin Chen dated 13 January 2019 and 14 March 2019;
·written references of Chungki Kim dated 27 April 2016 and 14 March 2019;
·various photographs and media articles regarding the applicant’s career; and
·a Herald Sun newspaper article, dated 28 February 2019.
Each of the referees attests to the applicant’s internationally recognised record of exceptional and outstanding achievement as a breakdancer and his continued prominence in the area as a performer, teacher and judge.
In particular, Mr Daniels who is the owner and co-founder of Street Dance Studios and Superhoodz Crew (a prominent Australian breakdancing crew) attests to the applicant’s involvement in breakdancing performance with his crew at large sporting and other events.
Mr Daniels further states that if the visa is granted, he is prepared to employ the applicant as a dance instructor and will continue to seek his assistance in the performances of the Superhoodz Crew. In Mr Daniels’ opinion , the applicant will continue to be booked for performances at both a national and international level.
Breakdancing is a type of street dancing created in the 1970s that has developed into a sport and a form of art. In the form of sport, competitions are held where dancers compete either individually against another dancer known as 1 v 1 battles, or they compete in teams or crews in 2 v 2, 3 v 3 battles and crew on crew battles. In breakdancing, a dance crew is a team of street dancers who come together to develop new moves and choreography to battle other crews or perform for entertainment.
While more popular in Europe and Asia, breakdancing is slowly becoming more known and prominent in Australia. The Tribunal also notes that Australian contemporary dance companies have incorporated breakdancing in their dance repertoires and performances.
The applicant is a Taiwanese national with a long record and history in breakdancing and is currently 35 years of age. He has competed, performed, taught and judged breakdancing events in the USA, China, Australia, Taiwan, Germany, France, Macao, Hong Kong, Singapore and Japan. The applicant’s stage name is Bboy Ghost.
The applicant was introduced to breakdancing when he was 17 years of age. He subsequently studied dance at the National University of Physical Education and Sport’s Department of Dance in Taiwan.
The applicant’s career in breakdancing commenced in 2004 when he performed in concerts for the prominent Taiwanese singer Jokin Tsai for the promotion of her album J9. He commenced his profession as a breakdance teacher in 2005.
In 2015 the applicant joined the internationally renowned breakdancing crew Hyper Rush Crew and commenced international competition. He also commenced teaching at dance academies.
The applicant’s international career includes wins in the following competitions:
·Taiwan Battle Temple and Singapore Asian X Cursion competition, 2006.
·Battle of the Year World Finals in Germany, 2006.
·Temple of Style 1 v 1 competition in France.
·Japan International Dance Delight, a crew on crew competition, and the Taipei Dance Delight Volume 1 worldwide competition, 2008.
·USA All the Way Live 1 v 1 competition and was runner up in the crew on crew category, 2010.
·Battle of the Year crew on crew competition, Taiwan, 2011.
·Life Dance for Volume 5 3 v 3 competition, Hong Kong, 2013.
·War of Faith Volume 1 1 v 1 competition, Taiwan, 2014.
The applicant has also performed in major international events such as the Alan Ko concert in 2005; the Black Eyed Peas concert, National Basketball Association opening ceremony and press performances for Adidas and Levi’s in 2006; and concerts for Harlem Yu and Rainie Yang in Taiwan in 2009.
In 2012 the applicant moved from Taiwan to Macao where he worked for the Galaxy Casino as a professional breakdancer for approximately six months. He was runner-up at the Chengdu Happy Valley Hegemony Hip Hop Dance Competition in China. He continued to perform at large events including annual events held at the University of Taiwan and Taipei University of Technology.
In 2013 the applicant was a competition judge at the Battle of the Year and the Bboyworld Asia competitions in Taiwan.
In May 2014 the applicant arrived in Australia on a Working Holiday visa. In July 2014 the applicant represented Taiwan in the Destructive Steps World Finals competition in Sydney in the 3 v 3 category. This is an annual international world final competition and is Australia’s biggest street dance event. The applicant was invited to represent Taiwan in this competition based on his international standing and prominence as a breakdancer. The applicant and his crew reached the quarter finals in this competition and competed against renowned international dancers including dancers from Korea, Japan, New Caledonia, Hong Kong, New Zealand and Singapore.
In September 2014 the applicant was crowned champion in the Red Bull Flying Bach Bboy Battle 2 v 2 competition in Australia. This was a domestic level competition.
In 2015 the applicant performed with the KITA Performing Arts Company at a number of public events including Melbourne Crown Casino, Melbourne Chinatown celebrations and the La Trobe Sister Cities Celebration in March. This celebration was aimed at developing relationships between Australia and Japan and China. The applicant also performed at a fundraising dinner in August 2015.
On 7 May 2015 the applicant and his crew won the Space Jam competition in Australia. This was a domestic level competition. However, the Tribunal notes that it attracted breakdancers from around Australia as well as international dancers. In November 2015 the applicant and his crew won the Life 4 Dance Volume 6 Break Dance Competition in Hong Kong. The Tribunal notes that this was an international competition. The applicant also won first place in a 4 v 4 community competition in Victoria in April 2015.
In 2016 the applicant again participated in breakdance performances as part of the Chinatown celebrations for Chinese New Year.
Since making the visa application on 2 May 2016 the applicant has been teaching breakdancing at a number of dance studios in Melbourne, including the one owned and operated by his nominator, Michael Fox.
In May 2016 the applicant was a judge for the Space Jam breakdancing competition in Melbourne. The applicant was invited to judge this competition based on his title as champion in this competition in 2015.
In June 2016 the applicant was invited to be a judge in the Annual Battle of the Year competition in China. The invitation was based on his previous success as a competitor in this competition and prominence in the international world of breakdancing.

In 2016 the applicant was also invited to compete in Taiwan in two international competitions. These invitations were based on the applicant’s reputation as a leading international breakdancer. He was also invited to judge two further international breakdancing competitions in Taiwan in 2016.
In 2017 the applicant competed in the Annual Battle of the Year competition in Taiwan where he and his crew were placed third. The applicant was also invited to judge an international competition in China.
In May 2017 the applicant accepted an invitation to be a special instructor for the Macao International Street Dance Association breakdance studio class. The Association is a well-recognised dance association which holds various international breakdancing competitions.
In November 2017 the applicant commenced performing for Street Dance Studios, which has performed overseas including performances at Disneyland USA and in Hollywood dance films. The Studio’s dancers have also performed for Melbourne United, an Australian national basketball premier league team. The applicant performed for the team as part of the entertainment provided in the 2016/2017 basketball season.
In November and December 2018 the applicant competed in breakdancing competitions in France and Taiwan.
In her decision, the delegate acknowledged the applicant’s early international career which commenced in 2005. She noted that the applicant had competed and performed in Asia, Europe and the United States where the applicant and his crew took numerous first placings. In the delegate’s opinion, the most notable and prestigious win was the Battle of the Year International Crew v Crew in Hanover, Germany in 2006.
The delegate further noted that since moving to Australia in 2014 the applicant had competed at a domestic level taking first placings in events such as Red Bull Flying Bach BBoy 2 v 2 2014 and Space Jam 3 v 3 Champions 2015. The delegate acknowledged that the applicant has also taught breakdancing through various studios and high schools with judging being another of the applicant’s sought after skills.
However, the delegate found that since his last international competition in 2013 the applicant had only competed once at this level, placing third in the 2017 Taiwan Street Dance preliminaries with his team Hyper Rush Crew.
Whilst the delegate accepted that the applicant held an internationally recognised record of exceptional and outstanding achievement during his early career; since 2013 his participation in the sport has been at a level not considered competitive enough to demonstrate current prominence in the field.
The Tribunal heard evidence from Michael Fox, the applicant’s nominator. Mr Fox is the founder of Melbourne Break Dance, which is an organisation providing dance classes and organises breakdancing competitions in Australia. Mr Fox is considered one of Australia’s leading breakdancers and performs at both the domestic and international level. He has also participated in television and musical productions as a breakdancer. Mr Fox told the Tribunal that he met the applicant in Taiwan when they were both competing in an international competition. Mr Fox said the applicant was recognised within the sport as one of the best breakdancers in Asia. He had won numerous competitions internationally. Due to the applicant’s record and expertise he was constantly sought after as a teacher in technical workshops whenever he travelled overseas.
Mr Fox explained that since his arrival in Australia, the applicant had raised the standard of breakdancing by inspiring competitors and fans alike with his skills and enthusiasm for the sport. Mr Fox also referred to the applicant’s passion for teaching and sharing his knowledge with other dancers and students which he considered had contributed to the growing popularity of breakdancing in Australia.
The Tribunal also heard evidence from Mr Reuben Fuentes the owner and operator of a music and dance studio in Melbourne. In addition to his dance studio, Mr Fuentes is the organiser of breakdance competitions in Melbourne. He told the Tribunal that he was aware of the applicant’s international career as a breakdancer and said that the applicant was known worldwide, including across Australia, as a breakdancer, performer and judge. Mr Fuentes explained that the applicant had participated as a judge in several competitions he had organised and was respected as a mentor to other dancers and students. He said that it was important for contestants and spectators to respect the reputation and skills of a judge in order for the competition to be successful. The applicant’s talents and reputation made him a popular judge of breakdancing competitions.
During the applicant’s oral evidence, he confirmed the submissions and documentary information provided to the Tribunal regarding his career leading up to the time of application and the period since the application. The media reports and evidence from multiple credible sources regarding his career support the applicant’s claim that at the time of application he was prominent in the area of breakdancing. Accordingly, the Tribunal is satisfied that cl.858.212(2)(a)(ii) is met.
Submissions made to the Tribunal by the applicant’s migration agent may be summarised as follows:
·In her decision the delegate incorrectly found that during the two years prior to making the visa application, the applicant had only competed in breakdancing at a domestic level and that his first intentional competition after making the visa application was in 2017.
·In July 2014 the applicant represented Taiwan in the Destructive Steps World Finals competition held in Sydney. This was an annual international competition and Australia’s biggest street dance event. The applicant and his crew reached the quarter finals in this competition. As the competitors involved several of the world’s best breakdancers, the applicant’s achievement in reaching the quarter finals of the competition demonstrates his prominence in the field.
·In November 2015 the applicant and his crew won the Life 4 Dance Volume 6 breakdancing competition in Hong Kong. This was an international competition in which dancers from countries including Japan, Macau, Malaysia, Korea, Singapore and Taiwan competed.
·The delegate mistakenly found that the applicant failed to demonstrate current prominence in the field of breakdancing because the applicant had not recently participated in or won international events.
·Since arriving in Australia the applicant has continued to be known and recognised as a world class breakdancer. The applicant has been invited to judge at and compete in many international events based on his recognition and reputation and has also been requested to perform at major community events.
The applicant’s representative referred the Tribunal to the case of S0902373 [2011] MRTA 1079 (19 May 2011) in which the applicant was a Macedonian citizen with a record of outstanding achievement as a soccer player in Europe. Two years prior to his Distinguished Talent visa application the applicant was playing for a club in the Victorian premier league, the preeminent league in Victorian and Australia. He retired shortly after he lodged his visa application. The delegate refused the application on the basis that the applicant ceased to be prominent in the field once he ceased competing in Europe. On review, the Tribunal found that although the applicant was not at the peak of his career at the time of application, he was still widely and popularly known in Australia and the former Yugoslavia. Accordingly the Tribunal found that at the time of application, he was still prominent in the field.
The Tribunal was further referred to the recent decision of Vandort (Migration) [2018] AATA 1538 (9 April 2018) in which the applicant was a cricket player and the delegate refused the application on the grounds that the applicant was not still prominent in the field. The member in Vandort made the following observation:
19. During the hearing the representative posited that the test to determine prominence is not the ‘Shane Warne test’; being that even individuals not familiar with cricket must know the name and identify and associate the individual with the sport, as they would with the mention of Shane Warne’s name for instance. But rather, the test is that the applicant is recognised as prominent by those within the field and for cricket would be; officials, other players, peak bodies/associations, media, fans and so forth. The Tribunal agrees that the ‘Shane Warne test’ is not the correct method to measure prominence.
20. In the case of the applicant, it is clear from the information before the Tribunal that at the time of application and continuing to present day the applicant ‘stands out’ in his field and is ‘important’ and ‘well known’ by others within his sport.
The applicant’s representative submitted that although not binding on the Tribunal, the decision in Vandort was apposite to the applicant in this review and the approach taken by the Member in that case should be applied to the applicant’s circumstances. It was further submitted that the numerous references provided by other breakdancers of international reputation attest to the fact that the applicant ‘stands out’ and is ‘important’ within the sport. It was submitted that the applicant’s prominence in the field of breakdancing continues due to his experience at a national and international level, his continued role in teaching and judging both domestically and internationally. The Tribunal accepts these submissions.
The Tribunal has also had regard to the case of Dolphin [2004] MRTA 7537, in which a visa applicant was playing cricket at a district level and achieving strong results. Whilst the Tribunal accepted that the applicant was not playing at the highest level in cricket in Victoria, it found that he was playing in a well-regarded competition and was an important and well-known player in that competition. On that basis the Tribunal found the applicant to be still prominent in that field.
The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used. The Macquarie Dictionary defines the word as meaning ‘important’; ‘leading’; ‘well-known’.
The Tribunal is satisfied from all of the evidence before it (both documentary and oral) that at the time of application, the applicant was still prominent in the field of breakdancing. Whilst the Tribunal acknowledges that at the time of application, he was no longer winning competitions at the same level as at the peak of his career, or achieving dancing success at the same national or international level, he remained well-known as a breakdancer and occupied an important position as a dancer, teacher and judge both domestically and internationally. The Tribunal is further satisfied that at the time of application the applicant was well-recognised as prominent by other breakdancers, judges, dance associations and fans. Accordingly the Tribunal finds that cl.858.212(2)(b) is met.
Clause 858.212(2)(c) requires that the applicant would be an asset to the community. The Tribunal accepts that the applicant has made a significant contribution to the sport of breakdancing not only as a dancer but is also committed to sharing his skills with students and mentoring other dancers. Accordingly the Tribunal is satisfied that cl.858.212(2)(c) is met.
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 applicant has gained employment as a dancer, teacher and judge in numerous competitions and with private dance schools in Melbourne. Accordingly the Tribunal is satisfied that cl.858.212(2)(d) is met.
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. A completed Form 1000 signed by Michael Fox, an Australian citizen, accompanied the application. Mr Fox is a prominent breakdancer and teacher of that sport. The Tribunal is satisfied that given his own achievements in the area, Mr Fox has a national reputation in the field of breakdancing. Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.
The Tribunal is satisfied that given the applicant’s age (32) at the time of application, the provisions of cl.858.212(2) do not apply to him.
FINDINGS
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.
DECISION
The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the directions that the applicant meets the following criteria:
·cl.858.212 of Schedule 2 to the Regulations.
Amanda Mendes Da Costa
Member

[2019] AATA 949

11 April 2019

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