Fonseka (Migration)

[2018] AATA 4067

Fonseka (Migration) [2018] AATA 4067 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Noel Nalin Fonseka
Mrs Sharon Roma Fonseka
Master Jhanik Noel Fonseka
Miss Chayann Danielle Fonseka

CASE NUMBER:  1604253

DIBP REFERENCE(S):  BCC2015/3319190

MEMBER:Amanda Mendes Da Costa

DATE:27 August 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 first-named applicant meets the following criteria:  

·  cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 27 August 2018 at 1:26pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record outstanding achievement – pastry chef – definition of profession – roles in large international hotels – successful participation in culinary competitions – published recipes – roles as a judge – educator – improvement to skills of others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth),
Migration Regulations 1994 (Cth), Schedule 2 cl 858.212

CASES
Baker v The Queen (2004) 223 CLR 513
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293
Griffiths v The Queen (1989) 167 CLR 372
Hatcher v Cohn (2004) 139 FCR 425
Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
R v Kelly (Edward) [2000] QB 198

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 17 March 2016 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 first named visa applicant (the applicant) applied for the visa on 5 November 2015. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212 (2)(a).

3. The applicants seek review of the delegate’s decision and for that purpose the applicants provided the Tribunal with a copy of the primary decision.

4. The applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The Tribunal also heard evidence from Mr Emanuel Ploumidis, Mr Jim Irwin, Mr Keerthi Hapugasdeniya and Mr Siri Mevan F.P. Sooriyarachchhi.  

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

   Sub-clause (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.

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

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

10. 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.

11. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a pastry chef.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(i) as belonging to a profession for the purposes of cl.858.212(2)(a).

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

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

14. 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.prominant; conspicuous; striking; 2. that continues in existence; that remains unsettled, unpaid, etc.; 3. standing out; projecting; detached; 4. that resists or opposes.”

15. 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 (Gaffar’s case) [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’s case the Court was dealing with the wording of the then clause 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 paragraph 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.

16. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425, is 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.’

17. 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 her record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

18. 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 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 the PAM 3 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

    ·     achievement would be similarly recognised in relation to international and Australian standards for that field.

19. 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.

20. 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.

21. The Tribunal has had regard to the applicant’s evidence, the evidence of his witnesses, the submissions made by his migration agent and the documentation contained in the Department’s file.

22. The Tribunal has also taken into consideration the following additional documents provided to it by the applicant:

    ·Reference, “Buffet de la Gare, Neuchatel, Switzerland, dated 30 May 1988.

    ·Recipes published on NDV Food site.

    ·Article and recipe published in ‘Exceptional excursions’ with Flexiplan, published by Demarle, France.

    ·References, Kuching Hilton, East Malaysia, 1992.

    ·Newspaper articles regarding the applicant’s achievements as a chef in various hotels in Asia, including medals for culinary competitions involving participants from 38 countries.

    ·Diploma, Course in Sugar Blowing, Zurich.

    ·Silver Award, national Culinary Competition, Malaysian Association of Hotels, 1990.

    ·Letter of Support, Emmanuel Ploumidis, owner, pastry Art Design, Milk Jamm Café Pty Ltd, (undated). 

    ·Indian Culinary Forum – Certificates of Appreciation, issued to applicant for Judging Culinary Art India 2008 & 2009.

    • Certificate, recognising applicant as an Accredited B level Judge of the World Association of Chefs Societies.

    ·Photographs of applicant’s pastry and cake creations.

    ·Written submissions by the applicant’s migration agent.

    ·Applicant’s Personal Profile.

    Applicant’s Evidence

23. Mr Fonseka told the Tribunal that his interest in baking and patisserie commenced when he was approximately 10 years of age and developed throughout his remaining school year in Sri Lanka.  He left his home as a young man and travelled to Switzerland where he studied patisserie and worked in hotels and restaurants, including “Buffet de la Gare’, Neuchatel. In 1982 the applicant returned to Sri Lanka where he commenced employment as a Pastry Trainee at the Hotel Ceylon Inter-Continental, Colombo, eventually being promoted to Grade 1 Pastry Cook.  He subsequently worked in the following positions:

    ·Sous Chef, Colombo Hilton International, Colombo Sri Lanka (1988-1989).

    ·Pastry Chef, Kuching Hilton, Sarawak, Malaysia (1989-1994).

    ·Pastry Chef, Shangri-La’s Mactan island Resort, Cebu, Philippines (1994-1997).

    ·Pastry Chef, Bintan Lagoon Resort, Hotel Sedone, Indonesia (1997-1999).

    ·Pastry Chef, La Pirogue Hotel and Casino and Sugar Beach Resort, Mauritius (1999-2000).

    ·Corporate Executive pastry chef, ITC Welcome Group Hotels, Places and Resorts, India, in association with Sheraton Hotels and Resorts (2002-2006).

    ·Prima Baking Training Centre, Colombo, Sri Lanka (2006-2014).

24. The Tribunal notes that in his role as Executive Pastry Chef with ITC the applicant was responsible for all patisserie items served in the chain’s hotels nationwide.  He was also a visiting chef for the Bali Hilton, Indonesia. Upon leaving his position with ITC the applicant took up a position with the Prima Baking Training Centre, responsible for teaching students in the Final Year Diploma course.  He was also responsible for Syllabus development and as a final year examiner.

25. During the period in which the applicant was working in large hotels he participated in a number of culinary competitions,  which were conducted in Malaysia, India and Singapore, these competitions included participants from countries in Europe, America, Australia and Asia.  Mr Fonseka told the Tribunal that he was successful in each of the competitions he participated in, being awardee medals for his performances.  He also participated in the Indian Culinary Forum as a judge in 2008 and 2009.

26. The Tribunal notes that the applicant was approached by the Demarle Group (a leading French manufacturer of bake ware used predominantly by professional chefs) to contribute a recipe for a book published by the company.  This book “Exceptional Excursions” with Flexiplan contains recipes from 90 professional chef’s word-wide and was awarded the title of ‘Best Book in the World for Food Professionals’ during the World Cookbook Awards in Beijing in April 2007.  It has been distributed on world-wide basis.  The applicant told the Tribunal that the popularity of his recipe had led to Demarle developing and manufacturing an item of bakeware designed specifically for his recipe. The Tribunal further notes that recipes attributed to the applicant are currently available on the NDV Food website and on the Pinterest social media site.  These sites publish in countries world-wide.

27. The applicant also told the Tribunal that he was accredited as a B level Judge in patisserie by the World Association of Chef’s Societies (WACS) in March 2012 for a period of five years.  The Tribunal notes that the WACS are a global network of over 100 official chefs associations as members.  Its biennial conference has been organised in over 20 cities across the world since its inception over 80 years ago.   During his time as a judge with WACS the applicant was involved in judging culinary competitions for participants from countries in Asia, Europe and America.

28. Mr Fonseka explained that he and his wife came to Australia to be with their two children who are completely tertiary studies in Australia. Since 2014 he has been employed as a pastry chef in a business providing pastries and baked goods to large Melbourne hotels.  He told the Tribunal that although his accreditation by WACAs as a culinary judge had expired in March 2017, he remained eligible for re accreditation and if his visa situation was resolved, plans to resume his role as a judge with that organisation.

    Evidence of Emanuel Ploumidis

29. Mr Ploumidis has employed the applicant since July 2014.  He is a qualified pastry chef and prior to commencing his business was employed as a pastry chef in large hotels in Melbourne.  He now operates a business providing cakes, bread and pastries to large hotels in Melbourne.  The applicant is employed as head pastry chef and supervises six to seven other employees.  Mr Ploumidis told the Tribunal that the applicant was a highly skilled pastry chef with extensive experience in five star hotels in Asia and the sub-continent.  Mr Ploumidis explained that it was difficult for businesses in Melbourne to find pastry chefs with the applicant’s range and depth of skills.  He said that the applicant also had considerable experience in teaching baking and pastry making and this was extremely useful to his other staff.  Mr Ploumidis said that his business has been accredited since by Trades Recognition Australia as an approved employer for staff studying hospitality and in particular baking and pastry making.

    Evidence of Jim Irwin

30. Mr Irwin is the Manager of Strategic Project Development for William Angliss Institute and has worked in the Tourism and Hospitality Industry for 45 years.  Mr Irwin’s current responsibilities are identifying and developing commercial opportunities both domestically and internationally and facilitating the delivery by the Institute of training and consultancy projects across the Asia pacific region.  Mr Irwin was responsible for setting up a branch of the William Angliss Institute in Sri Lanka approximately 5 years ago and is currently involved in leading a team providing skills assessments for workers in the hospitality industry, He has also been appointed by the Victorian State Government as an Honorary Skilled Migration Industry Advisor.

1. The Tribunal notes that the William Angliss Institute is the applicant’s nominator.  Mr Irwin told the Tribunal that he had instigated the Institute’s involvement in the nomination after being introduced to the applicant by one of the Institute’s chef instructors.  Mr Irwin told the Tribunal that in his view, Mr Fonseka has had a long and distinguished career in the culinary arts, notably in baking and patisserie, working in Europe, Asia and Australia.  He also said the applicant had developed an expertise in training others in his craft, which is much needed in Australia where there is a current shortage in suitably trained and experienced pastry chefs.

   Evidence of Keerthi Hapugasdeniya

2. Mr Hapugasdeniya is a chef and currently operates a food consultancy business in Melbourne.  He attended school with the applicant and worked with him at a hotel in Switzerland.  Mr Hapugasdeniya was also previously executive chef for Ansett Airlines.  He told the Tribunal that he was currently an accredited Judge with the World Association of Chef’s Societies and previously judged culinary competitions with the applicant in Sri Lanka.  He attested to Mr Fonseka’s exceptional skills as a pastry chef and told the Tribunal that there were positions available for the applicant to recommence his role as a culinary judge with the World Association of Chef’s Societies if he applied for reaccreditation.  Mr Hapugasdeniya said that there had recently been a position available for a culinary judge with the Association in Vietnam, which the applicant could have filled.  He said that given the applicant’s current visa status and his work commitments this had not been possible but it was likely that further opportunities would become available in the future.

   Evidence of Siri Mevan F.P. Sooriyarachchhi

3. Mr Sooriyarachchhi also attended school with the applicant and has 30 years’ experience as a chef I five star hotels.  He is currently the lead Trainer for Education Access Australia, an institute providing higher education training in Patisserie, Commercial Cookery and Hospitality Management.  Mr Sooriyarachchhi told the Tribunal that he considers that the applicant is an excellent pastry chef and trainer, who would be a valuable asset to his organisation (as a trainer) if the visa application was granted.

4. In his decision the delegate observed:

   “The applicant has established a longstanding career in the hospitality and food industry, spanning 30 years.  In that time, the applicant has obtained industry training in Sri Lanka, Switzerland and Australia, and has secured kitchen positions ranging from Commis to Executive Pastry Chef at several large international hotel chains including ITC and Hilton Hotels. The applicant also held the position of Senior Lecturer at the prima Baking Training Centre in Sri Lanka from 2006 to 2014.

   The applicant participated in regular cooking competitions, had his recipes featured through a number of media platforms and established himself as a B Grade Judge for the World Association of Chef’s Societies.

   While the applicant has established a longstanding career within the industry, which has provided opportunities to work internationally, the achievements evidenced in the application are not dissimilar to that of most executive chefs employed by large international hotel chains.  The achievements, whilst noteworthy, are not reflective of a chef who is considered at the very top of the field with extraordinary and remarkable abilities that are superior to others.”

   Submissions

5. The applicant’s migration agent submitted on behalf of his client as follows:

   ·Mr Fonseka satisfies the requirements of sub-clause 858.212(2) (a) (i) of the Regulations as being a person with an internationally recognised record of exceptional and outstanding achievement in a profession.

   ·The Tribunal should place significant weight on the fact that his nominator is the William Angliss Institute, a prestigious TAFE institution, responsible for training and assessing skills in patisserie domestically as well as internationally.

   ·In any assessment of whether the applicant satisfies subclause 124.211(2) (a) [sic] of the Regulations, the Tribunal should be guided by the reasoning of the Court in Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293, where the Court opined that an applicant need not be unique amongst his/her peers but should have a demonstrable record of achievement that is out of the ordinary. The Tribunal should apply a ‘liberal’ test rather than determining whether Mr Fonseka is unique amongst his peers.

   ·The Tribunal should be further guided by the decision of the decision of Brennan and Dawson JJ in Griffiths v The Queen (1989) 167 CLR 372 at 379 where their Honours considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

   “Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”

   ·The Tribunal should further take into consideration the observations of Callinan J  In Baker v The Queen (2004) 223 CLR 513 at 573 [173] where his Honour referred with approval to what Lord Bingham of Cornhill CJ has said in R v Kelly (Edward) [2000] QB 198 at 208:

   “We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art.  It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual, or special or common.  To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

   ·The Tribunal should also consider the finding of the Full bench of Fair Work Australia in  Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13]:

   “In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together is seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the pleural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation.  The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

6. Accordingly, the Tribunal should have regard to all of the circumstances of the applicant’s experience and career as a pastry chef and educator in finding that he has an internationally record of exceptional and outstanding achievement.

7. The Tribunal has considered the definition of the term ‘profession’.  It notes that it is defined in the Macquarie English Dictionary as “a vocation requiring knowledge of some department of learning or science, especially one of the three vocations of theology, law and medicine (formerly known as the professions or the learned professions”.  The English Oxford Dictionary defines ‘profession’ as “a paid occupation especially one that involves prolonged training and a formal qualification.”

8. The Tribunal acknowledges that the applicant has formal training as a pastry chef and instructor and having considered the dictionary definitions of the term ‘profession’, is  satisfied that the occupation of pastry chef constitutes one for the purpose of cl.858.212(2)(a)(iii).

9. The Tribunal is satisfied from the evidence provided that the applicant does have an internationally recognised record of exceptional and outstanding achievement as a pastry chef.  In making this finding, the Tribunal has taken into account the totality of the evidence regarding the applicant’s career and culinary experience. The Tribunal notes the delegate observed that the applicant’s achievements are not dissimilar to that of most executive chefs employed by large international hotels.  However the Tribunal finds that the requirement of cl.858.212 (2)(a) is not that the applicant’s experience is somehow dissimilar to that of other chefs, but rather whether he has an internationally recognised record of exceptional and outstanding achievement in a profession.  The Tribunal further finds that it is relevant to consider the applicant’s role as a chef in large international hotels when determining whether he has such a record.

10. The Tribunal is satisfied that the applicant’s role as a pastry chef at a number of large and successful hotels; his successful participation in international culinary competitions, his creation of published recipes; his role as a judge for the World Association of Chefs Societies and his experience as an educator persuade the Tribunal that the applicant did have an internationally recognised record of exceptional and outstanding achievement as a pastry chef at the time of application.  The Tribunal finds that the applicant’s achievements are consistent with the definition of ‘exceptional and outstanding achievement’ as set out in Gaffar’s case, Hatcher v Cohn and Pam 3.   Accordingly the Tribunal finds that the applicant meets the requirements of cl.858.212(2)(a).

11. The Tribunal is further satisfied that given at the time of application, the applicant’s profile and recipes continued to appear on social media platforms and he held the position of judge with the World Association of Chefs Societies, that he was still prominent in the area.  Accordingly, the Tribunal is satisfied that the applicant was still prominent in the area as required by cl.858.212(2)(b).

12. Subclause 858.212(2)(c) requires that the applicant would be an asset to the community.

13. The Tribunal is satisfied that the applicant’s skills as a pastry chef; his experience in teaching; and his contribution to the improvement of culinary skills through participating in and judging culinary competitions would be of value to the Australian community.    The Tribunal finds that if the application was granted the applicant is likely to improve the standards of baking and patisserie through his work as a pastry chef and his teaching of such skills to others.  The Tribunal is satisfied that the improvement of such standards will make a valuable contribution to the food industry and assist others in gaining employment within the industry. The Tribunal therefore finds that the applicant met the requirements of cl.858.212(2)(c) at the time of application.

14. Subclause 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.

15. The applicant is currently employed as a pastry chef with a company providing patisserie and baked goods to major hotels in Melbourne.  The applicant obtained this position through his own reputation, experience and endeavours.  It is a position which is likely to continue in the foreseeable future.  The Tribunal notes that he has also had opportunities to teach students in the area of patisserie and participate in judging international cooking competitions.  On the basis of this evidence, the applicant’s employment history as a pastry chef in major hotels and his training experience at the Prima Baking Centre, the Tribunal finds that the applicant met the requirements of cl.858.212(2)(d) at the time of application.

16. 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 approval form 1000 signed by Mr Jim Irwin, on behalf of the William Angliss Institute. Mr Irwin who is the Manager of Strategic Project Development for the Institute attests in this form to the applicant’s record of achievement in the fields of baking and patisserie.  The Tribunal finds that the William Angliss Institute, as a specialist centre for foods, tourism and hospitality and with campuses in Melbourne, intestate and overseas, has a national reputation in relation to the area.  Accordingly, cl.858.212(2)(e) is met.

17. The Tribunal is satisfied that given the applicant’s age at the time of application, (52 years), the provisions of cl.858.212(2)(f) do not apply to him.

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

19. In relation to the secondary visa applicants, their entitlement to a visa is initially dependent on whether the review applicant is successful in obtaining a Subclass 858 visa, and then on whether they meet the additional criteria which apply.  

20. Given the above findings, the appropriate course is to remit the applications for the visas to the Department to consider the remaining criteria for Subclass 858 visas.

    DECISION

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

    ·cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

    Amanda Mendes Da Costa

    
    

    Member