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Tribunal: Member J Cripps-Watts

The AAT remitted the decision not to grant a Distinguished Talent (Residence) visa, instead asking the Department to reconsider in light of evidence that the applicant was eminent in the field of international trade negotiation.

The Distinguished Talent (Residence) (Class BX) Subclass 858 visa[1] requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts or academia.[2] A delegate of the Department of Home Affairs (The Department) had refused to grant the visa; in this case, because the delegate was not satisfied the applicant’s achievements fell within a field or profession.

At the AAT, the applicant argued he had an internationally recognised record of exceptional and outstanding achievement in the profession of ‘international trade negotiation’. He provided evidence at the time of his application, including written statements supporting his professional achievements as a diplomat and managing director of a Danish company with a global presence. This was supplemented at hearing by oral evidence that allowed the AAT to gain an insight into his qualities which set him apart in a unique way.

In particular, the work the applicant had undertaken to establish new business networks between Australian and, primarily but not exclusively, Denmark. These networks included aviation, environmental sustainability, renewable energy and, trade-based cultural connections for the arts.

Other requirements of the Distinguished Talent (Residence) visa include that the applicant be prominent in their area, that they would be an asset to the Australian community, and that they would have no difficulty in obtaining employment in Australia in their area. These requirements must be satisfied for at least one member of the family unit; the other members of the family unit must meet the requirement that they are a member of the family unit of a person who satisfies the primary criteria.

The applicant and his family came to Australia in 2009. The applicant had limited options for permanent residency due to his age and because his eight years residing in Australia as a diplomat did not count towards residency in Australia.

The AAT was satisfied, on the weight of the written and oral evidence, that the applicant and his family unit were committed to contributing to the Australian community, as they had demonstrated over the 10 years they had lived here.

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[1] Migration Act 1958 (Cth), s 65.

[2] Migration Regulations 1994 (Cth), sch 2 cl 858.212(1).