Zorrilla Madariaga (Migration)

[2020] AATA 3090

Zorrilla Madariaga (Migration) [2020] AATA 3090 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jose Antonio Zorrilla Madariaga
Ms Helga Germania Moraga Mejias
Ms Francisca Paz Zorrilla Moraga
Ms Javiera Antonia Almendra Zorrilla Moraga

CASE NUMBER:  1905134

DIBP REFERENCE(S):  BCC2018/1556149 BCC2018/1695167

MEMBER:John Cipolla

DATE:11 June 2020    

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:

cl.858.212 of Schedule 2 to the Regulations.

Statement made on 11 June 2020 at 2.25pm

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the profession of Computer Engineer – asset to the community – applicant developed radio podcast system – concept and technology now used by streaming services – promotion of Internet of Things (IoT) – Information Technologies Architect – innovative air pollution reduction technology for underground mines developed in Australia – IoT devices for agri-tech and water management – development of cyber security IT systems – mentoring engineering students – value of the applicant’s knowledge and the experience to his employer – credentialled eligible nominator – decision under review remitted             

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 858.212

CASES

Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 February 2019 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (hereinafter referred to as the applicant) applied for the visa on 5 April 2018. The delegate refused to grant the visa on the basis that the delegate could not be satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in a profession, namely as a Computer Engineer.

3. The applicant appeared before the Tribunal on 4 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bill Farias and Mr Richard Freeman the applicant’s Australian employer.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).

   Subclause (2) sets out the following requirements:

   The applicant:

   (a)has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:

   (i)a profession;

   (ii)a sport;

   (iii)the arts;

   (iv)academia and research; and

   (b)is still prominent in the area; and

   (c)  would be an asset to the Australian community; and

   (d)would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and

   (e)  produces a completed approval form 1000.

   Note:    An approved form 1000 requires the applicant’s record of achievement in an

   area (as mentioned in paragraph (a)) to be attested to by (a) an Australian

   citizen; or (b) an Australian permanent resident; or (c) an eligible New

   Zealand citizen; or (d) an Australian organisation; who has a national

   reputation in relation to the area.

   (f)If the applicant has not turned 18, or is at least 55 years old, at the time of application-would be of exceptional benefit to the Australian community.

7. The applicant has not made any claims in relation to cl.858.212(4).

8. The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met.

9. Clause 858.212(2)(a) requires the applicant to have an internationally recognised record of outstanding achievement in: a profession; a sport; the arts; or academia and research.

10. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a Computer Engineer.  As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(iii) as belonging to a profession for the purposes of cl.858.212(2)(a).

11. The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations).

12. In this context, the Tribunal has had regard to the relevant dictionary meanings.

13. The Tribunal has had regard to the Macquarie Dictionary Online, where the word ‘exceptional’ is defined to mean: “1. forming an exception or unusual instance; unusual; extraordinary. 2. extraordinarily good, as of a performance or product. 3. extraordinarily skilled, talented, or clever.”  It also defines the word ‘outstanding’ to mean: “1. prominent; conspicuous; striking. 2. that continues in existence; that remains unsettled, unpaid, etc. 3. standing out; projecting; detached. 4. that resists or opposes.”

14. The Tribunal has also had regard to case law applicable to cl.858.212(2)(a).  The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. Notably in Gaffar v Minister for Immigration and Multicultural Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a “national living treasure”. The Tribunal also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity.  The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.”  Therefore Gaffar’s case, has limited application in the current context.  The Tribunal notes that whilst the applicant need not be a “national living treasure”, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

15. The Tribunal has also had regard to consideration of the meaning of ‘exceptional’ in Hatcher v Cohn (2004) 139 FCR 425. The Tribunal notes the comments of Kieffel J at [49]-[50]:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary.  But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

16. In the context of this application the Tribunal considers that the statutory context does operate to limit or qualify the otherwise ‘wide operation’ of the word insofar as cl.858.212(2) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding, and, in addition, is internationally recognised as such.

17. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”.  The Tribunal further notes that the Departmental guidelines (Procedures Advice Manual 3, or PAM 3) state, inter alia, the following:

    applicants should be very eminent in the top echelons of the field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.

    …

    Claims of an ‘excellent’ level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.

    A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.

    An achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.

    …

    an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field.  An applicant should be at the very top of their field.

18. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.  Whether or not an applicant’s record of achievement is internationally recognised as exceptional and outstanding, will be a question of fact to be determined in the individual case and, where appropriate, to the extent the policy is inconsistent with the Regulations, the Tribunal is required to depart from it.  The Tribunal has taken into account the individual circumstances of the applicant.

19. As noted above, in order to meet the relevant criterion, an applicant must have had an internationally recognised record of exceptional and outstanding achievement in his or her field at the time of application.

20. The applicant is a National of Chile who holds qualifications in the field of Computer Engineering.

21. The applicant for the purposes of merits review has provided details of his achievements in the field of Computer Engineering as follows.

    May 1998

    I developed a podcast system for Radio Usach (University of Santiago de Chile) at that moment we believed that we were the first in Chile, but now I can see that we were one of the first radio stations in the world working with on demand audio using Internet (podcast).

    The Radio Usach project was an innovation because I created the concept of podcasting when nobody was doing that at that time. However, 22 years ago, what I achieved, did not have a name as we know it today.

    In 1998, only a few radio stations were transmitting live stream through the Internet. My university broadcasting radio transmitted shows at odd hours about science with very few listeners at that time.

    So I have got the idea to place the recordings of these radio shows on a database, and create the webpage of the university radio station to serve these content. Then the public can search in the database and listen to the radio show whenever they want, online and in realtime. At the same time, the website can transmit the live stream (realtime show) through the Internet.

    At that time, if you want to listen to an audio file, you must download first the full digital file to listen to it in a 28k bps modem. The concept of podcasting appears six years after the Radio Usach project.

    In May 1998, Wikipedia did not exist, Google was created fourth months later, and Amazon six years after that. The project was very innovative, and for that reason, it appears in all the Chilean newspapers, and also we started to receive emails from all over the world. At that time, it was truly groundbreaking for internet streaming of radio programs given the slow speed of modem at that time.

    The Radio Usach project included the recording, database and server software. We integrated all the technology that existed at that moment to create a disruptive product. The radio operator at that time had the radio console connected to a computer. He then recorded the shows on the computer, and the software application uploads the audio files to the server. Then he has a web interface to name the file, add the date and add tags or keywords (that concept also did not exist at that time, now this is known as #hashtags). The server had the software I created to simulate a live stream while the user computer was downloading the file.

    Now Spotify, is using this concept and technology, you can listen to the music when you want, is not necessary to download the audio file to your device, you can listen to a realtime stream of digital audio. Same as the technology that YouTube uses for video streaming

    Supporting documents:

    ·2 - Jose Zorrilla - La Epoca - Newspaper article Radio Usach Project – 24 May 1998 (Chilean newspaper interview)

    ·3 - Jose Zorrilla - La Nacion - Newspaper article Radio Usach Project – 25 May 1998 (Chilean newspaper interview)

    ·4 - Jose Zorrilla - Newspaper Article Radio Usach Project – 25 May 1998 (University magazine interview)

    From April 2012 to present

    I started to research, promote and teach about the Internet of Things (IoT) creating a website of IoT in Spanish (internetdelascosas.cl). This website becomes popular in Latin America and Spain and the whole Spanish speaking world. This website became a reference and go to for anyone wanting to know what is IoT. Mass media seek me when they want to make an article related to IoT because I became an expert in the field.

    Supporting documents:

    ·5 - Jose Zorrilla - LUN - Newspaper article Smart Houses – 23 August 2013 (Smart houses - Chilean newspaper interview)

    ·6 - Jose Zorrilla - Revista Valora - Journal Article - Internet of Things – 15 July 2016 (Investment magazine - IoT interview):

    2012 - 2014:

    Due to the existence of the IoT website (iot.cl) I received an offer letter to participate in the Radomiro Tomic Phase II Project, as an Information Technologies Architect for the whole project. Jacobs Engineering ( hired me to design and develop all the IT architecture of the project. Liaising with all relevant departments like mechanical engineering, electrical engineering, piping etc. My major achievement, I as solution architect, was to design the IT platform for the whole facilities and equipment of the mine which is worth US$5.4 billion dollars.

    Supporting documents:

    ·7 - Jose Zorrilla - Practical Experience Report - Radomiro Tomic Project – 1 August 2012

    2014 - 2015:

    I won a full scholarship for me and my family, for the most outstanding professionals in the country (Chile) to study abroad, I chose Australia, and a Master of Professional Engineering (Software).

    Supporting documents:

    ·8 - Jose Zorrilla - Chilean Consul Letter – 31 January 2018 (Chilean Consulate in Sydney certify this scholarship)

    2018:

    My university in Chile recognized me as an outstanding alumni and published an interview of my experience in the IoT and also remembering the Radio Usach Project.

    Supporting documents:

    ·9 - Jose Zorrilla - Faculty of Engineering Dean Letter – 25 January 2018

    ·10 - Jose Zorrilla - Usach - Universidad de Santiago de Chile - Outstanding professionals interview – 10 August 2018

    2018

    EcoMine Project. As X-Red.Com (my Australian company) and through Lexus FM partnership we got a contract to develop all the IT platforms for the EcoMine project. This is an innovative air pollution technology to purify the air in coal mines underground tunnels.

    For more information:

    Supporting documents:

    ·     11 - Jose Zorrilla - Ecomine Reference Letter – 20 March 2018

    ·     12 - Jose Zorrilla - Mobin Nomvar Reference Letter – 31 March 2018

    2019:

    I continued developing projects with my Australian company X-Red.Com and stablishing international strategic partnerships at various large-scaled projects (Australia, Spain and England)

    Supporting documents:

    ·     13 - Bruce Bian – Profile Page (He will attend the hearing)

    ·     Bill Farias Lexus Finance and Marketing Pty Ltd - Bill Farias CEO (He will be attend the hearing)

    ·     Zoftcom (Spain)

    ·     Timber Digital Marketing (England)

    2020:

    I got a position as a Head of Software/Firmware/Database Development and Management in an Australian IoT company. We develop innovative IoT devices for agri-tech and water management at national level.

    EcoMine Project. As X-Red.Com (my Australian company) and through Lexus FM partnership we got a contract to develop all the IT platforms for the EcoMine project. This is an innovative air pollution technology to purify the air in coal mines underground tunnels.

    For more information:

    Supporting documents:

    ·     11 - Jose Zorrilla - Ecomine Reference Letter – 20 March 2018

    ·     12 - Jose Zorrilla - Mobin Nomvar Reference Letter – 31 March 2018

    2019:

    I continued developing projects with my Australian company X-Red.Com and stablishing international strategic partnerships at various large-scaled projects (Australia, Spain and England)

    Supporting documents:

    ·     13 - Bruce Bian – Profile Page (He will attend the hearing)

    ·     Bill Farias Lexus Finance and Marketing Pty Ltd - Bill Farias CEO (He will be attend the hearing)

    ·     Zoftcom (Spain)

    ·     Timber Digital Marketing (England)

    2020:

    I got a position as a Head of Software/Firmware/Database Development and Management in an Australian IoT company. We develop innovative IoT devices for agri-tech and water management at national level.

22. The Tribunal conducted a telephone hearing on 4 June 2020. At the outset of the review hearing the Tribunal went into considerable detail about the merits review process and about the respective issues in review.

23. The Tribunal took evidence from the applicant about his academic and professional history. The applicant advised that he completed undergraduate studies at the University of Santiago in Chile namely a Bachelor of Computer Science, a degree of 4 years duration.

24. The applicant stated that early in his career he focused on the areas of cyber security, Internet connection and Internet applications and that he worked for a number of large information technology corporations such as IBM. The applicant stated that he was involved in assisting major banks in Chile in dealing with cyber security issues and the protection of IT information.

25. The applicant advised that in his undergraduate degree he was the dux in the Faculty of Computer Science at the University of Santiago in Chile.

26. The applicant advised that in 2015 he was awarded a scholarship which was offered to professionals and academics across Chile to enable them to undertake postgraduate studies in a country of their choice. The applicant stated that the scholarship was hotly contested and there were close to 1500 national applicants for the scholarship. The applicant advised that because of the quality of his undergraduate degree, his requisite skill set, and his reputation in the area of computer science that he won the scholarship. The applicant chose to study at the University of Sydney. The applicant determined that Australia would be a good fit for himself and his family, as the applicant intended that his family would travel with him whilst he completed a Masters degree as the scholarship holder. The applicant advised that he had to establish that he had English language proficiency in order to enable him to complete the Masters degree in Australia and to this end he underwent IELTS testing and met the requisite English language requirements.

1. The applicant stated that he was dissatisfied with the decision record of the delegate as little reference was made to his achievements over the course of his academic and professional career. The Tribunal noted that it had received, prior to the hearing, a number of documents including a document prepared by the applicant with reference to his national and international reputation as a computer engineer. The Tribunal invited the applicant to address whether he had an internationally recognised record of exceptional and outstanding achievement in his profession.

2. The applicant advised that in May 1998 he developed software for podcasting to enable the University of Santiago in Chile to broadcast radio programs via the Internet. The applicant advised that the development of this podcasting technology was the first in the world and attracted both national and international attention. The applicant stated that the University of Santiago in Chile was considered to be an outstanding academic institution. The applicant reiterated that he was the dux of the Faculty of Computer Engineering. The applicant submitted that the award of an international scholarship was further evidence of his international reputation as a Computer Engineer.

3. The applicant advised that he had run a company which had an international reputation. The applicant stated that his company was involved in creating IT solutions across a range of applications. The applicant advised that his companies reach extended into the whole of Latin America and Spain and that a significant component of his business was involved in mining technology and the applicant advised that he had been engaged by the world’s fifth largest mine located in Chile.

4. The applicant stated that since he had been in Australia he had undertaken presentations and been involved in technological developments in cooperation with University of Melbourne, the University of New South Wales and the University of Queensland. The applicant stated that he had worked actively on the development of mine technology which related to ways of dealing with air pollution in mining shafts. The applicant stated that he had a steady stream of work in Australia and had recently been employed by an Australian business as head of technical development.

5. The Tribunal made reference to the nominator that completed the form 1000 that related to the applicant Subclass 858 visa, Mr Richard Colley. The applicant advised that Mr Colley was the Chief Executive Officer of a large telecommunications company and had a national reputation in the area of computer engineering.

6. The Tribunal took evidence from the applicant’s current employer Mr Richard Freedman. Mr Freedman advised that he was the general manager of Centratech Systems. Mr Freedman advised that he had employed the applicant as Head of Software/Firmware/Database Development in January 2020. Mr Freedman described his business as one involved in remote wireless monitoring of control systems. Mr Freedman advised that 85% of the work of his business was for municipal councils and State governments across New South Wales and Victoria. For example, his business operated the watering systems for the Centennial Parklands.  The business was involved in the development of remotely operated irrigation systems, stormwater harvesting, and with regards to agriculture. Mr Freedman advised that the agricultural and cash crops sector was one of the fastest growing areas within the business. Mr Freedman advised that the applicant was the successful applicant from over 100 applicants for the position. Mr Freedman advised that applicants applied from overseas and from within Australia. Mr Freedman stated that because of the applicant’s expertise, along with his international experience, that he was the successful applicant for the position. Mr Freedman advised that the incumbent, prior to the applicant taking on the role, was involved in scrutinising applications and stated that the applicant was far more qualified than he was for the position.

7. Mr Freedman advised that his business was developing new products in the monitoring and control area and that the applicant offered great expert capability because of his requisite skill set.

8. In a written reference provided at review Mr Freedman advised that:

   We employed Jose Zorrilla as out Head of Software/Firmware/Database Development and Management in March 2020. We recruited Jose to work on our new wireless, remote monitoring and control product called Fieldmouse. This suite of devices, along with its cloud-based platform and database, is built for use in a wide range of applications with focus on Agri-tech and water management applications. It is an innovative product which is at a critical stage of development, just prior to commercialisation. Centratech Systems (CTS) is a SME which has been in business since 2009. We have extensive experience in providing wireless monitoring and control solutions to municipal and state governments throughout Australia. We act for many of the largest municipal councils in Australia, and for State government departments. We also have a significant exposure to Agri business through the water management solutions we offer. It is one of our fastest growing areas of business. When recruiting for Jose’s role, we advertised on several employment and technical platforms locally, nationally, and internationally. Jose was the standout candidate due to his experience and his qualifications. We had hundreds of applicants and we interviewed several of them, but we considered Jose was the only applicant who would provide the range of skills we require. Larger firms can perhaps afford to employ more than one person to address the range of tasks that we require Jose to perform. As a smaller firm, we need a talented “all-rounder” like Jose. We cannot afford a team.

   Jose’s understanding across a broad range of skill sets is quite rare. With his experience and knowledge background, he can take a “global” view of the task at hand, liaise with several other employees and contractors, assess a wide variety of inputs and opinions, and bring a solution to the problem. This is not something that a less experienced operator can do. Jose also understands our government customers’ needs through his experience working in government in Chile. None of the other applicants who applied for the role had any experience working in government in the fields that we required. Once again Jose had unique skills at a remarkably high level. We consider ourselves fortunate to have found Jose because he fitted our criteria so well. He had the knowledge and the experience which we could not find, and we believe that without Jose we would have to accept lesser skills, to the detriment of our business. He has become a valuable member of our team and our Fieldmouse project would be seriously affected if we lost him.

9. The Tribunal took evidence from a friend and professional colleague of the applicant Mr Bill Fariaf. Mr Fariaf advised that he was a businessman. He advised he was also a licensed real estate agent and that he initially met the applicant when the applicant was obtaining rental accommodation in Australia. He advised that he had got to know the applicant and his whole family at a personal level. Mr Fariaf advised that as a business person he was involved in innovation and had invested in a number of innovative ideas. Mr Fariaf stated that he had tapped into the expertise of the applicant to develop software applications particularly air pollution systems for underground mines. Mr Fairaf advised that current systems of extracting pollution from underground mines involved the use of water and air, namely the pumping of air to the shaft of the tunnel. The new technology that was being developed was much more energy-efficient, green and provided good quality air in underground mines. Mr Fariaf stated that the applicant’s talents were invaluable and that the development of the product had an international reach covering mining projects overseas as well as in Australia.  Mr Fariaf stated that the applicant was also involved in the development of cyber security IT systems and had been consulted on the development of an application for monitoring glucose levels in a non-invasive manner.

10. The Tribunal is satisfied having regard to all of the evidence before it that the applicant does have an internationally recognised record of exceptional and outstanding achievement in a profession, being the area of Computer Engineering.  Accordingly, the Tribunal finds that cl.858.212(2)(a) is met.

11. Clause 858.212(2)(b) requires that the applicant is still prominent in the area.

12. The word ‘prominent’ is not defined in the Act or Regulations and therefore the ordinary meaning of the word is to be used.  The Macquarie Dictionary defines the word as meaning ‘important’; ‘leading’; ‘well-known’.

13. The evidence before the Tribunal indicates that the applicant is still prominent in the area of Computer Engineering.  The evidence indicates that the applicant due to his early and pioneering work in developing podcasting for Radio Usach in 1998 to his later and most current endeavours in the field of Computer Engineering is recognised amongst his peers throughout Latin America, Spain and Australia as being a prominent proponent in his field.

14. Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.858.212(b).

15. Clause 858.212(2)(c) requires that the applicant would be an asset to the community. Since his arrival in Australia the applicant has been involved in working in his field of Computer Engineering and has been heavily involved in new product start up. The nominator who completed the Form 1000 Mr Richard Colley advised, that after meeting with the applicant, he offered the applicant a position as a Software Developer in his company Card Access Services. Mr Colley notes the significant contribution the applicant made to his business in the role.  Mr Colley notes the applicant’s receipt of a scholarship from the government of Chile to study a Masters of Professional Engineering course at the University of Sydney.  Mr Colley notes that the applicant had mentored engineering students at the University of New South Wales. Mr Colley also makes reference to the applicant’s significant professional achievements and his demand to present at conferences, particularly with regard to the internet of things.  

16. The Tribunal accepts the written and oral evidence of Mr Richard Freedman that the applicant is highly credentialed and for this reason he was employed by Mr Freedman as the Head of Software/Firmware/Database Development. The evidence indicates that the applicant has been intrinsically involved in the development of control monitoring technology that has a wide application in irrigation systems and in mining operations.  Given Australia is heavily reliant on the agricultural and mining sectors the Tribunal finds that the applicant would be an asset to the Australian community now, and going forward. The Tribunal is satisfied that cl.858.212(2)(c) was met at the time of application.

17. The Tribunal is satisfied that the evidence shows that at the time of application, the applicant had gained employment as a Computer Engineer and Software Developer and as has been noted, is currently employed by Mr Freedman as Head of Software/Firmware/Database Development for his business Centratech Systems and the Tribunal is satisfied that the applicant would have had no difficulty in obtaining employment or becoming established independently in Australia in the area of Computer Engineering. Accordingly, the Tribunal is satisfied that cl.858.212(2)(d) is met.

18. Clause 858.212(2)(e) requires the prescribed form to be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. A completed Form 1000 signed by Richard Leslie Colley dated 1 April 2018 was submitted with the visa application. The Tribunal is satisfied from the evidence before it that Mr Colley is an Australian citizen who has a national reputation in relation to the area of Software Development.  Mr Colley attests to the applicant’s exceptional and outstanding record of international achievement as a Computer Engineer, particularly in the field of Computer Engineering and software development as it applies to the mining and telecommunications industry. Accordingly, the Tribunal is satisfied that cl.858.212(2)(e) is met.

19. The Tribunal is satisfied that given the applicant’s age (46 years) at the time of application that the provisions of cl.858.212(2)(f) do not apply to him.

20. As the applicant meets all of the requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement in cl.858.212(1) and accordingly meets cl.858.212 as a whole.

21. In relation to the second named applicants, the Tribunal finds that as the applicant meets the criteria for grant of a Distinguished Talent (Residence) (Class BX) visa, the second named applicants meet the criteria for a Subclass BX visa as a members of the family unit of a person who satisfies the primary criteria.

22. Given the above findings, the appropriate course is to remit the applications for visas to the Department to consider the remaining criteria for a Subclass 858 visa.

    DECISION

23. The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:

    cl.858.212 of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member