MELLO XAVIER (Migration)

This matter concerned an application for a Distinguished Talent (Residence) Class BX visa, Subclass 858, brought by Mello Xavier. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the sport of bodybuilding. The decision reviewed by the Tribunal was remitted for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the requirements of subclause (2) of clause 858.212 of Schedule 2 to the Regulations. This subclause requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a sport, be still prominent in that area, and would be an asset to the Australian community, among other criteria. The applicant did not claim to meet subclause (4) of the same clause.

The Tribunal considered departmental policy, which outlines that the Subclass 858 visa is intended for individuals with an internationally recognised record of exceptional and outstanding achievement in their field, who are eminent in the top echelons and would make substantial contributions to the Australian community. The Tribunal noted that "exceptional and outstanding achievement" implies accomplishments remarkable in relation to peers at the highest level of the field. After reviewing the applicant's evidence, including her background in dance, her studies in physical education and sports science, and her subsequent studies and work in the health and fitness sector in Australia, the Tribunal concluded that the applicant met the criteria under clause 858.212(2).

Consequently, the Tribunal remitted the application for a Distinguished Talent (Residence) Class BX visa for reconsideration by the Department, with a direction that the applicant meets the criteria specified in clause 858.212 of the Regulations.