KIM (Migration)

This matter concerned an application for review of a decision by the Migration Review Tribunal. The applicant, KIM, sought a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The core of the dispute revolved around whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in the field of Kendo, both as a competitor and a coach, as required by the relevant visa criteria.

The legal issues before the court were whether the applicant had demonstrated an internationally recognised record of exceptional and outstanding achievement in Kendo, and whether Kendo could be classified as a sport and being a competitor and coach could be classified as a profession for the purposes of the visa subclass. The court was required to consider the meaning of "record of exceptional and outstanding achievement" and whether the evidence presented by the applicant met this threshold.

The court considered the evidence provided by the applicant, including letters from prominent figures in Australian Kendo, details of competition wins and coaching successes between 2003 and 2017, and further international achievements in 2018. The court applied the principles from *Gaffar v MIMIA* [2000] FCA 293, which established that "exceptional record of achievement" requires demonstrated excellence that is out of the ordinary, and *Zhang v MIMA and Anor* [2007] FMCA 664, which clarified that a "record" does not necessarily need to be quantifiable or sustained over a long period. The Tribunal found that Kendo could be classified as a sport and the applicant's roles as a competitor and coach could be classified as a profession. Based on the cumulative evidence, the Tribunal was satisfied that the applicant had an internationally recognised record of outstanding and exceptional achievement in Kendo, demonstrating a substantial contribution to the sport and continued prominence.

The Tribunal found that the applicant met the requirements of clause 858.212(2)(a) of the Migration Regulations. The decision under review was remitted.