Chung (Migration)

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the sport of breakdancing, and that they remained prominent in this field. The decision under review was made by the Tribunal, and the Honourable Amanda Mendes Da Costa presided.

The primary legal issue before the Tribunal was whether the applicant still met the criteria for the visa, specifically under clause 858.212(1) of the Regulations, which requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a sport and to be still prominent in that area. The Tribunal also considered the definition of "exceptional" and "outstanding" in the context of an internationally recognised record of achievement, and the relevance of previous case law, such as *Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs* [2000] FCA 293.

The Tribunal reasoned that the applicant's claims fell within clause 858.212(2)(a)(ii) of the Regulations, relating to a sport. While acknowledging that the term "internationally recognised record of exceptional and outstanding achievement" is not defined, the Tribunal referred to dictionary definitions of "exceptional" and "outstanding" to understand the required level of demonstrated excellence. The Tribunal noted that while *Gaffar* provided some guidance, its application was limited due to the different wording of the relevant clause in the present case, which required an "internationally recognised record of exceptional and outstanding achievement" rather than merely an "exceptional record of achievement." The Tribunal concluded that the applicant's circumstances would vary depending on the specific activity, and that some activities require a higher level of skill to rise above the ordinary.

Ultimately, the Tribunal found that the applicant met all applicable requirements under clause 858.212(2) and, therefore, met clause 858.212 as a whole. Consequently, the Tribunal remitted the application for reconsideration with the direction that the applicant meets the criteria in clause 858.212 of Schedule 2 to the Regulations.