Heon (Migration)

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858, which was refused by the Department of Immigration and Border Protection. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the visa, specifically under subclause 858.212(2) of the Migration Regulations 1994. This subclause requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a specified area, be still prominent in that area, and be an asset to the Australian community. The Tribunal also considered whether the applicant met the alternative criteria under subclause 858.212(4), which relates to providing specialised assistance to the Australian Government in matters of security.

The Tribunal noted that its role was to conduct a de novo assessment of the applicant's claims. It found that the applicant did not meet the requirements of subclause 858.212(4) as there was no evidence that the relevant security agencies had provided an opinion that the applicant had provided specialised assistance to the Australian Government. In assessing subclause 858.212(2), the Tribunal applied the principle from *Bretag v Immigration Review Tribunal* that subsequent history can be considered to test issues relevant at the time of application. However, based on the evidence and submissions, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.