Mkoki (Migration)

This matter concerned an application for review of a delegate's decision regarding a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the arts. The Tribunal considered additional information and submissions provided by the applicant beyond what was before the original delegate.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 858.212(1) of Schedule 2 to the Regulations, specifically subclause (2). This subclause requires the applicant to have an internationally recognised record of exceptional and outstanding achievement in a specified field, be still prominent in that field, be an asset to the Australian community, have no difficulty obtaining employment or establishing themselves independently in Australia, and have submitted an approved Form 1000. The Tribunal noted that the applicant had provided the completed Form 1000 and that the age-related criterion was not applicable.

The Tribunal reasoned that the concept of an "internationally recognised record of exceptional and outstanding achievement" is not defined in the Regulations but has been subject to judicial interpretation. Citing *Zhang v MIMA*, the Tribunal noted that a "record" does not necessarily need to be quantifiable as large, lengthy, or sustained over time, but rather an aggregation or list of achievements. While the Tribunal acknowledged the applicant had met some criteria, it did not make a final determination on all aspects of clause 858.212(2).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 858.212 of Schedule 2 to the Regulations.