AustLII

Administrative Appeals Tribunal of Australia

Fonseka (Migration) [2018] AATA 4067 (27 August 2018)

Last Updated: 30 October 2018

Fonseka (Migration) [2018] AATA 4067 (27 August 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Noel Nalin Fonseka

Mrs Sharon Roma Fonseka

Master Jhanik Noel Fonseka

Miss Chayann Danielle Fonseka

CASE NUMBER: 1604253

DIBP REFERENCE(S): BCC2015/3319190

MEMBER: Amanda Mendes Da Costa

DATE: 27 August 2018

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the application for a Distinguished

Talent (Residence) (Class BX) visa for
reconsideration with the direction
that
the first-named applicant meets the following criteria:

cl.858.212 of
Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent)
visa.

Statement made on 27 August 2018 at

1:26pm

CATCHWORDS

MIGRATION – Distinguished Talent

(Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) –
internationally
recognised record outstanding achievement – pastry chef
– definition of profession – roles in
large international
hotels
– successful participation in culinary competitions – published
recipes – roles as a
judge – educator
– improvement to skills
of others – decision under review
remitted

LEGISLATION

Migration Act 1958 (Cth),

Migration Regulations 1994 (Cth), Schedule 2 cl

858.212

CASES

Baker v The Queen ([2004] HCA 45; 2004) 223 CLR

513

Gaffar v Minister for Immigration and Multicultural and Indigenous

Affairs (Gaffar’s case) [2000] FCA 293

Griffiths v The Queen

[1989] HCA 39; (1989) 167 CLR 372

Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425

Nulty v
Blue Star Group Pty Ltd [2011] FWAFB 975

R v Kelly (Edward) [1999] UKHL 4; [2000]

QB 198

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 17
March 2016 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 first named visa applicant (the applicant) applied for the visa on 5
November 2015. The delegate
refused to grant the visa on
the basis that the
applicant did not meet cl.858.212 (2)(a).
3.
The applicants seek review of the delegate’s decision and for that
purpose the applicants provided the
Tribunal with a copy
of the primary
decision.
4.
The applicant appeared before the Tribunal on 16 July 2018 to give
evidence and present arguments. The
Tribunal also heard evidence from
Mr Emanuel
Ploumidis, Mr Jim Irwin, Mr Keerthi Hapugasdeniya and Mr
Siri Mevan F.P.
Sooriyarachchhi.
5.
The applicants were represented in relation to the review by their registered
migration agent.
6.
For the following reasons, the Tribunal has concluded that the matter should be
remitted for
reconsideration.

CONSIDERATION OF CLAIMS AND

EVIDENCE

7.
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).

Sub-clause (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.

8.
The applicant has not made any claims in relation to cl.858.212(4).
9.
The Tribunal notes that in determining whether the applicant meets
cl.858.212(2) all of the stated
subclauses must be met.
10.
Clause 858.212(2)(a) requires the applicant has an internationally recognised
record of outstanding
achievement in a profession;
a sport; the arts; or
academia and research.
11.
The applicant claims that he has an internationally recognised record of
exceptional and outstanding
achievement as a pastry chef.
As a result, the
Tribunal finds that the applicant’s claims come within
cl.858.212(a)(i) as
belonging to a profession for
the purposes of cl.858.212(2)(a).
12.
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 regulations.
13.
In this context, the Tribunal has had regard to both the relevant dictionary
meanings and case law
applicable to cl. 858.212(2)
(a).
14.
According to the Macquarie Dictionary Online, 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.prominant;
conspicuous; striking;
2. that continues in existence; that remains unsettled,
unpaid, etc.; 3. standing out;
projecting; detached; 4. that resists or
opposes.”
15.
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 and
Indigenous
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 clause 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 paragraph 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
acknowledges however that, while 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.
16.
The Tribunal has also had regard to consideration of the meaning of
‘exceptional’ in Hatcher v Cohn
[2004] FCA 1548; (2004) 139 FCR 425, is
apposite. 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.’

17.
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 her record of achievement
is not only ‘exceptional’
but is also outstanding, and, in addition, is
internationally recognised as
such.
18.
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 Department guidelines in
PAM3 provide the following guidance in respect
of what
constitutes a record of exceptional and outstanding achievement (PAM
–
Sch-2 Visa 858 – Distinguished
Talent):

What does
‘exceptional’ mean?

For 858.212 (2) (a), 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 the field.

‘Internationally recognised’ in this context means that a

person’s achievements have would be acclaimed as
exceptional
and
outstanding in any country where the relevant field is practised.

‘Exceptional and outstanding’ should be accorded ordinary

dictionary meaning within context.

Policy requirements

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 would attract
similar
acclaim in those countries.

Given the ordinary dictionary meanings, in order to have a record of

exceptional and outstanding achievement
an applicant would be
expected to have
achievements remarkable in relation to that field and in relation to
other
participants in that field. An applicant
should be at the very top of their
field.

Assessing this criterion

In assessing the applicant’s record of achievement, officers may take

into account information such as, but not
necessarily
limited to:

information
provided by the nominator, who should provide a full account of why they believe
the applicant has
an exceptional and
outstanding record of achievement.
supporting
statement and material provided by the applicant detailing relevant aspects of
their background
including their qualifications,
achievements and positions
held. This should include information relating to any
achievements in
Australia
awards or higher
qualifications received from internationally recognised institutions or
organisations.
details and
supporting material on sporting achievements including national and
international rankings, results
in competitions or
tournaments, statements from
international sporting bodies, sporting scholarships received
a newspaper and
magazine articles testing
to achievements.
The policy guidelines in
the PAM 3 reflect the following view in relation to the requirement of
international
recognition:

International recognition
required

Achievement in a profession, a sport the arts or academia and research that

has not would be not be
recognised at an international
level would not be
regarded as exceptional and outstanding.

It is expected that an applicant’s achievements have would be acclaimed

as exceptional and outstanding in
any country where
the relevant field is
practised. The field would also need to have recognition and
acceptance in
Australia as well is international
standing. In determining the international
standing of the
applicant, officers should consider:

the
international standing of the country, with the applicant’s achievements
were realised, in respect of that
particular field.
the standing of
the achievement in relation to Australian standards and new line the standing of
the
achievement in relation to international
standards.
For example
an applicant rated at or near the top of their field in their home country would
be expected to
have an international
record of exceptional outstanding
achievement if the:

field is
undertaken and recognised in a number of countries including Australia and
achievement
would be similarly recognised in relation to international and Australian
standards for that field.
19.
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.
20.
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.
21.
The Tribunal has had regard to the applicant’s evidence, the evidence of
his witnesses, the submissions
made by his migration
agent and the documentation
contained in the Department’s file.
22.
The Tribunal has also taken into consideration the following additional
documents provided to it by the
applicant:
. Reference,
“Buffet de la Gare, Neuchatel, Switzerland, dated 30 May 1988.
. Recipes
published on NDV Food site.
. Article and
recipe published in ‘Exceptional excursions’ with Flexiplan,
published by Demarle, France.
. References,
Kuching Hilton, East Malaysia, 1992.
. Newspaper
articles regarding the applicant’s achievements as a chef in various
hotels in Asia, including
medals for culinary
competitions involving
participants from 38 countries.
. Diploma, Course
in Sugar Blowing, Zurich.
. Silver Award,
national Culinary Competition, Malaysian Association of Hotels, 1990.
. Letter of
Support, Emmanuel Ploumidis, owner, pastry Art Design, Milk Jamm Café Pty
Ltd, (undated).
. Indian Culinary
Forum – Certificates of Appreciation, issued to applicant for Judging
Culinary Art India 2008
& 2009.
. Certificate,
recognising applicant as an Accredited B level Judge of the World Association of
Chefs
Societies.
. Photographs of
applicant’s pastry and cake creations.
. Written
submissions by the applicant’s migration agent.
. Applicant’s
Personal Profile.

Applicant’s Evidence

23.
Mr Fonseka told the Tribunal that his interest in baking and patisserie
commenced when he was
approximately 10 years of age and
developed throughout his
remaining school year in Sri Lanka. He left his
home as a young man and
travelled to Switzerland where
he studied patisserie and worked in hotels and
restaurants, including “Buffet de la Gare’, Neuchatel. In 1982 the
applicant
returned to Sri Lanka where he
commenced employment as a Pastry
Trainee at the Hotel Ceylon Inter-Continental, Colombo, eventually
being
promoted to Grade 1 Pastry Cook. He subsequently worked in the following
positions:
. Sous Chef,
Colombo Hilton International, Colombo Sri Lanka (1988-1989).
. Pastry Chef,
Kuching Hilton, Sarawak, Malaysia (1989-1994).
. Pastry Chef,
Shangri-La’s Mactan island Resort, Cebu, Philippines (1994-1997).
. Pastry Chef,
Bintan Lagoon Resort, Hotel Sedone, Indonesia (1997-1999).
. Pastry Chef, La
Pirogue Hotel and Casino and Sugar Beach Resort, Mauritius (1999-2000).
. Corporate
Executive pastry chef, ITC Welcome Group Hotels, Places and Resorts, India, in
association with
Sheraton Hotels and Resorts
(2002-2006).
. Prima Baking
Training Centre, Colombo, Sri Lanka (2006-2014).
24.
The Tribunal notes that in his role as Executive Pastry Chef with ITC the
applicant was responsible for all
patisserie items served
in the chain’s
hotels nationwide. He was also a visiting chef for the Bali Hilton,
Indonesia.
Upon leaving his position with
ITC the applicant took up a position with the
Prima Baking Training
Centre, responsible for teaching students in the Final
Year Diploma
course. He was also responsible for
Syllabus development and as a
final year examiner.
25.
During the period in which the applicant was working in large hotels he
participated in a number of
culinary competitions, which
were conducted in
Malaysia, India and Singapore, these competitions included
participants from
countries in Europe, America, Australia
and Asia. Mr Fonseka told the Tribunal
that he was
successful in each of the competitions he participated in, being
awardee medals
for his performances. He also
participated in the Indian
Culinary Forum as a judge in 2008 and 2009.
26.
The Tribunal notes that the applicant was approached by the Demarle Group (a
leading French
manufacturer of bake ware used predominantly
by professional
chefs) to contribute a recipe for a book
published by the company. This book
“Exceptional Excursions”
with Flexiplan contains recipes from 90
professional chef’s word-wide and was awarded the title of ‘Best
Book in the
World for Food Professionals’
during the World Cookbook Awards
in Beijing in April 2007. It has been distributed on world-wide
basis. The
applicant told the Tribunal that the popularity of his recipe had led to Demarle
developing and manufacturing
an item
of bakeware designed specifically for his
recipe. The Tribunal further notes that recipes attributed to
the applicant are
currently
available on the NDV Food website and on the Pinterest social media
site. These
sites publish in countries world-wide.
27.
The applicant also told the Tribunal that he was accredited as a B level Judge
in patisserie by the World
Association of Chef’s
Societies (WACS) in March
2012 for a period of five years. The Tribunal notes that the
WACS are a global
network of over 100 official
chefs associations as members. Its biennial
conference has
been organised in over 20 cities across the world since its
inception
over 80 years ago. During his time as a
judge with WACS the
applicant was involved in judging culinary competitions for participants
from
countries in
Asia, Europe and America.
28.
Mr Fonseka explained that he and his wife came to Australia to be with their
two children who are
completely tertiary studies in
Australia. Since 2014 he has
been employed as a pastry chef in a business
providing pastries and baked goods
to large Melbourne hotels.
He told the Tribunal that although his
accreditation
by WACAs as a culinary judge had expired in March 2017, he remained eligible
for
re
accreditation and if his visa situation was resolved, plans to resume his
role as a judge with that organisation.

Evidence of Emanuel
Ploumidis

29.
Mr Ploumidis has employed the applicant since July 2014. He is a qualified
pastry chef and prior to
commencing his business was
employed as a pastry chef
in large hotels in Melbourne. He now operates a
business providing cakes, bread
and pastries to large
hotels in Melbourne. The applicant is employed as head
pastry chef and supervises six to seven other employees. Mr Ploumidis told
the
Tribunal that the applicant
was a highly skilled pastry chef with extensive
experience in five star hotels in Asia and the sub-continent.
Mr
Ploumidis
explained that it was difficult for businesses in Melbourne to find pastry chefs
with the applicant’s
range and
depth of skills. He said that the
applicant also had considerable experience in teaching baking and
pastry making
and this was extremely
useful to his other staff. Mr Ploumidis said that his
business has been
accredited since by Trades Recognition Australia as an
approved
employer for staff studying hospitality and in
particular baking and
pastry making.

Evidence of Jim Irwin

30.
Mr Irwin is the Manager of Strategic Project Development for William Angliss
Institute and has worked in
the Tourism and Hospitality
Industry for 45 years. Mr Irwin’s current responsibilities are identifying and
developing
commercial opportunities both domestically
and internationally and facilitating
the delivery by the
Institute of training and consultancy projects across the
Asia pacific region.
Mr Irwin was responsible for
setting up a branch of the
William Angliss Institute in Sri Lanka approximately 5 years ago and is
currently
involved in leading a team providing skills assessments for workers in
the hospitality industry, He has also
been appointed
by the Victorian State
Government as an Honorary Skilled Migration Industry Advisor.
31.
The Tribunal notes that the William Angliss Institute is the applicant’s
nominator. Mr Irwin told the Tribunal
that he had
instigated the
Institute’s involvement in the nomination after being introduced to the
applicant by
one of the Institute’s
chef instructors. Mr Irwin told the
Tribunal that in his view, Mr Fonseka has had a long
and distinguished career in
the culinary
arts, notably in baking and patisserie, working in Europe, Asia and
Australia. He also said the applicant had developed an expertise
in training
others in his craft, which is much
needed in Australia where there is a current
shortage in suitably trained and experienced
pastry
chefs.

Evidence of Keerthi Hapugasdeniya

32.
Mr Hapugasdeniya is a chef and currently operates a food consultancy business
in Melbourne. He
attended school with the applicant
and worked with him at a
hotel in Switzerland. Mr Hapugasdeniya was also
previously executive chef for
Ansett Airlines. He told
the Tribunal that he was currently an accredited Judge
with the World Association of Chef’s Societies and previously judged
culinary competitions with the applicant
in Sri Lanka. He attested to Mr
Fonseka’s exceptional skills as a pastry chef and
told the Tribunal that
there
were positions available for the applicant to recommence his role as a
culinary judge with the World
Association of Chef’s Societies if he
applied for reaccreditation. Mr Hapugasdeniya said that there had
recently been
a position
available for a culinary judge with the Association in Vietnam, which
the applicant
could have filled. He said that given the applicant’s
current visa status and his work commitments this had not
been possible but it
was likely that further opportunities would become
available in the
future.

Evidence of Siri Mevan F.P. Sooriyarachchhi

33.
Mr Sooriyarachchhi also attended school with the applicant and has 30
years’ experience as a chef I five
star hotels. He
is currently the lead
Trainer for Education Access Australia, an institute providing higher
education
training in Patisserie, Commercial
Cookery and Hospitality Management. Mr
Sooriyarachchhi told
the Tribunal that he considers that the applicant is an
excellent pastry
chef and trainer, who would be a
valuable asset to his
organisation (as a trainer) if the visa application was granted.
34.
In his decision the delegate observed:

“The applicant has

established a longstanding career in the hospitality and food industry, spanning
30 years.
In that time,
the applicant has obtained industry training in Sri
Lanka, Switzerland and Australia, and has
secured kitchen positions ranging from
Commis to Executive Pastry Chef at several large international hotel
chains
including ITC and Hilton Hotels. The applicant also held
the position of Senior
Lecturer at the prima
Baking Training Centre in Sri Lanka from 2006 to 2014.

The applicant participated in regular cooking competitions, had his recipes

featured through a number of
media platforms and established
himself as a B
Grade Judge for the World Association of Chef’s Societies.

While the applicant has established a longstanding career within the

industry, which has provided
opportunities to work internationally,
the
achievements evidenced in the application are not dissimilar to that of
most
executive chefs employed by large international
hotel chains. The achievements,
whilst noteworthy, are
not reflective of a chef who is considered at the very
top of the field with
extraordinary and remarkable abilities
that are superior
to others.”

Submissions

35.
The applicant’s migration agent submitted on behalf of his client as
follows:
. Mr Fonseka
satisfies the requirements of sub-clause 858.212(2) (a) (i) of the Regulations
as being a person
with an internationally
recognised record of exceptional and
outstanding achievement in a profession.
. The Tribunal
should place significant weight on the fact that his nominator is the William
Angliss Institute, a
prestigious TAFE institution,
responsible for training and
assessing skills in patisserie domestically as well as
internationally.
. In any
assessment of whether the applicant satisfies subclause 124.211(2) (a) [sic] of
the Regulations, the
Tribunal should be guided
by the reasoning of the Court in
Gaffar v Minister for Immigration & Multicultural
Affairs [2000] FCA
293, where the Court opined that an applicant need not be unique amongst his/her
peers
but should have a demonstrable record of achievement
that is out of the
ordinary. The Tribunal should apply a
‘liberal’ test rather than
determining whether Mr Fonseka is
unique amongst his peers.
. The Tribunal
should be further guided by the decision of the decision of Brennan and Dawson
JJ in Griffiths
v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 where their Honours
considered a statutory provision
which entitled either a parole board or a court
to specify a shorter
non-parole period than that required under
another section
only if it determined that the circumstances justified that course. They
said
of the appellant’s
circumstances:

“Although no
one of these factors was exceptional, in combination they may reasonably be
regarded as
amounting to exceptional
circumstances.”

The Tribunal
should further take into consideration the observations of Callinan J In
Baker v The Queen
([2004] HCA 45; 2004) 223 CLR 513 at 573 [173] where his Honour
referred with approval to what Lord
Bingham of Cornhill CJ has said in R v
Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208:
“We must construe
“exceptional” as an ordinary, familiar English adjective, and not as
a term of art. It
describes
a circumstance which is such as to form an
exception, which is out of the ordinary course or
unusual, or special or common.
To be
exceptional a circumstance need not be unique, or unprecedented, or
very
rare; but it cannot be one that is regularly, or routinely,
or normally
encountered.”

The Tribunal
should also consider the finding of the Full bench of Fair Work Australia in Nulty v Blue Star
Group Pty Ltd [2011] FWAFB 975
[13]:
“In summary, the expression “exceptional
circumstances” has its ordinary meaning and requires consideration
of all
the circumstances. To be exceptional, circumstances must be out of the ordinary
course, or unusual, or
special, or uncommon, but
need not be unique, or
unprecedented, or very rare. Circumstances will not be
exceptional if they are
regularly or routinely, or
normally encountered. Exceptional circumstances can
include
a single exceptional matter, a combination of exceptional factors or
a
combination of ordinary factors which,
although individually of no particular
significance, when taken together is seen as exceptional.
It is not correct
to
construe “exceptional circumstances” as being only some unexpected
occurrence, although frequently
it will
be. Nor is it correct to construe the
pleural “circumstances” as if it were only a singular occurrence,
even
though it can be a one-off situation. The ordinary and natural meaning of
“exceptional circumstances” includes
a combination
of factors which,
when viewed together, may reasonably be seen as producing a situation
which is
out of the ordinary course, unusual,
special or uncommon.”

36.
Accordingly, the Tribunal should have regard to all of the circumstances of the
applicant’s experience and
career as a pastry
chef and educator in finding
that he has an internationally record of exceptional and
outstanding
achievement.
37.
The Tribunal has considered the definition of the term
‘profession’. It notes that it is defined in the
Macquarie English
Dictionary as “a vocation requiring knowledge of some department of
learning or science,
especially one of the three vocations of theology,
law and
medicine (formerly known as the professions or the
learned professions”. The English Oxford Dictionary defines ‘profession’ as
“a paid occupation especially one
that involves prolonged training and
a formal qualification.”
38.
The Tribunal acknowledges that the applicant has formal training as a pastry
chef and instructor and
having considered the dictionary
definitions of the term
‘profession’, is satisfied that the occupation of pastry
chef
constitutes one for the purpose
of cl.858.212(2)(a)(iii).
39.
The Tribunal is satisfied from the evidence provided that the applicant does
have an internationally
recognised record of exceptional
and outstanding
achievement as a pastry chef. In making this finding, the
Tribunal has taken
into account the totality of the evidence
regarding the applicant’s career
and culinary
experience. The Tribunal notes the delegate observed that the
applicant’s
achievements are not dissimilar to
that of most executive
chefs employed by large international hotels. However the Tribunal finds
that
the
requirement of cl.858.212 (2)(a) is not that the applicant’s
experience is somehow dissimilar to that of other
chefs,
but rather whether he
has an internationally recognised record of exceptional and outstanding
achievement in a profession. The Tribunal
further finds that it is relevant to
consider the applicant’s role as a
chef in large international hotels when
determining
whether he has such a record.
40.
The Tribunal is satisfied that the applicant’s role as a pastry chef at a
number of large and successful
hotels; his successful
participation in
international culinary competitions, his creation of published recipes; his
role
as a judge for the World Association
of Chefs Societies and his experience as an
educator persuade the
Tribunal that the applicant did have an internationally
recognised
record of exceptional and outstanding
achievement as a pastry
chef at the time of application. The Tribunal finds that the applicant’s
achievements
are consistent with the definition
of ‘exceptional and
outstanding achievement’ as set out in Gaffar’s case,
Hatcher v
Cohn and Pam 3. Accordingly the Tribunal finds that the applicant meets
the requirements of
cl.858.212(2)(a).
41.
The Tribunal is further satisfied that given at the time of application, the
applicant’s profile and recipes
continued to
appear on social media
platforms and he held the position of judge with the World Association of
Chefs
Societies, that he was still
prominent in the area. Accordingly, the Tribunal
is satisfied that the applicant
was still prominent in the area as required by
cl.858.212(2)(b).
42.
Subclause 858.212(2)(c) requires that the applicant would be an asset to the
community.
43.
The Tribunal is satisfied that the applicant’s skills as a pastry chef;
his experience in teaching; and his
contribution to
the improvement of culinary
skills through participating in and judging culinary competitions
would be of
value to the Australian
community. The Tribunal finds that if the application
was granted the
applicant is likely to improve the standards of baking and
patisserie through his work as a pastry chef and his
teaching of such skills to
others. The Tribunal is satisfied that the improvement
of such standards will
make a
valuable contribution to the food industry and assist others in gaining
employment within the industry.
The
Tribunal therefore finds that the applicant
met the requirements of cl.858.212(2)(c) at the time of application.
44.
Subclause 858.212(2)(d) requires that the applicant would have no difficulty in
obtaining employment, or
in becoming established
independently, in Australia in
the area.
45.
The applicant is currently employed as a pastry chef with a company providing
patisserie and baked
goods to major hotels in Melbourne.
The applicant obtained
this position through his own reputation,
experience and endeavours. It is a
position which is likely to
continue in the foreseeable future. The Tribunal
notes that he has also had opportunities to teach students in the area of
patisserie
and participate in judging
international cooking competitions. On
the basis of this evidence, the applicant’s employment history
as a
pastry
chef in major hotels and his training experience at the Prima Baking Centre, the
Tribunal finds that the
applicant met
the requirements of cl.858.212(2)(d) at
the time of application.
46.
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 approval form 1000 signed by Mr Jim Irwin,
on behalf
of the William Angliss Institute. Mr Irwin
who is the Manager of Strategic
Project Development for
the Institute attests in this form to the
applicant’s record of achievement
in the fields of baking and patisserie.
The Tribunal finds that the William Angliss Institute, as a specialist centre
for foods,
tourism and hospitality
and with campuses in Melbourne, intestate and
overseas, has a national reputation in relation to the area.
Accordingly,
cl.858.212(2)(e) is met.
47.
The Tribunal is satisfied that given the applicant’s age at the time of
application, (52 years), the
provisions of cl.858.212(2)(f)
do not apply to
him.
48.
As the applicant meets all of the applicable 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.
49.
In relation to the secondary visa applicants, their entitlement to a visa is
initially dependent on whether
the review applicant
is successful in obtaining a
Subclass 858 visa, and then on whether they meet the
additional criteria which
apply.
50.
Given the above findings, the appropriate course is to remit the applications
for the visas to the
Department to consider the remaining
criteria for Subclass
858 visas.

DECISION

51.
The Tribunal remits the application for Distinguished Talent (Residence) (Class
BX) visas for
reconsideration, with the direction
that the applicant meets the
following criteria:
. cl.858.212 of
Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent)
visa.

Amanda Mendes Da Costa

Member