Duarte Brandao (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The applicant, Mr. Duarte Brandao, sought this visa based on his achievements as a graphic artist. The primary dispute revolved around whether the applicant met the requirements of Schedule 3 criterion 3004, particularly in circumstances where he did not hold a substantive visa at the time of his application.

The Tribunal was required to determine if the applicant could satisfy Schedule 3 criterion 3004, which necessitates a finding that the applicant was without a substantive visa due to factors beyond their control, and that there are compelling reasons for granting the visa. Additionally, the Tribunal had to be satisfied that the applicant had complied with the conditions of previous visas and would have been eligible for the visa if they had applied on the day they last held a substantive visa. The Tribunal accepted the delegate's findings that the applicant met criteria 3001 and that 3003 was not applicable, thus focusing its decision on criterion 3004.

The Tribunal found that the applicant's failure to hold a substantive visa was due to factors beyond his control, specifically a delay in his nominator providing a required form. The applicant had a history of residing, studying, and working in Australia since 2013, undertaking various courses and establishing a career as a graphic artist. Evidence presented, including testimonials and details of international exhibitions and sales of his work, supported his claim of an "internationally recognised record of exceptional and outstanding achievement."

Consequently, the Tribunal set aside the original decision and remitted the applications for the Distinguished Talent (Residence) (Class BX) visas to the Department for reconsideration. The remittal was made with a direction that the first named applicant met criteria cl.858.211(2)(a) and cl.858.212 of Schedule 2 to the Regulations.