Zorrilla Madariaga (Migration)

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, specifically Subclass 858. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the profession of Computer Engineering, asserting that they would be an asset to the Australian community. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 858.212(1) of the Migration Regulations 1994, which requires applicants to satisfy subclause (2) or (4). The Tribunal focused on subclause (2), which mandates that an applicant must have an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research, and must still be prominent in that area, be an asset to the Australian community, and have no difficulty obtaining employment or establishing themselves independently in Australia.

The Tribunal considered the definitions of "exceptional" and "outstanding" from the Macquarie Dictionary and relevant case law, including *Gaffar v Minister for Immigration and Multicultural Affairs*. It noted that while an applicant need not be a "national living treasure," the standard of "exceptional and outstanding achievement" requires demonstrated excellence that is out of the ordinary. The Tribunal found that the applicant's claims fell within the category of a profession (Computer Engineering) for the purposes of clause 858.212(2)(a). However, the Tribunal concluded that the specific wording of the current clause, requiring an "internationally recognised record of exceptional and outstanding achievement," meant that *Gaffar's* case had limited application.

The Tribunal remitted the applications for reconsideration by the Department, with a direction that the applicant met the criteria in clause 858.212 of Schedule 2 to the Regulations. This indicated that while the applicant had satisfied some aspects of the visa requirements, further consideration was needed for the remaining criteria.