Fonseka (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The central dispute concerned whether the applicant, a pastry chef, possessed an "internationally recognised record of exceptional and outstanding achievement" in their profession, as required by the visa criteria.

The Tribunal was tasked with determining if the applicant met the requirements of clause 858.212(2)(a) of the Migration Regulations 1994, which mandates an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research. The applicant contended that their achievements as a pastry chef satisfied this criterion.

In its reasoning, the Tribunal examined the definitions of "exceptional" and "outstanding" and considered relevant case law. While acknowledging that the applicant need not be a "national living treasure," the Tribunal noted that the standard of "exceptional and outstanding achievement" requires demonstrated excellence that is out of the ordinary. The Tribunal found that the applicant's claims fell within the scope of a "profession" for the purposes of the regulations. However, the Tribunal concluded that the specific evidence presented in relation to the applicant's roles in large international hotels, culinary competitions, published recipes, judging roles, and educational activities required further consideration against the high threshold of "internationally recognised record of exceptional and outstanding achievement."

Consequently, the Tribunal remitted the applications for the Distinguished Talent (Residence) (Class BX) visas to the Department for reconsideration, with a direction that the applicant met the criteria under clause 858.212 of Schedule 2 to the Regulations.