1501562 (Migration)

[2016] AATA 3338

1501562 (Migration) [2016] AATA 3338 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Javier Fernandez Lobera
Ms Maria Collado Bailo

CASE NUMBER:  1501562

DIBP REFERENCE(S):  BCC2014/2163076

MEMBER:Marten Kennedy

DATE:25 February 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 25 February 2016 at 10:29am

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 1 September 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

4. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

5. In the present case, the first named applicant, Mr Fernandez Lobera, is seeking the visa in the Direct Entry stream to work in the nominated position of Marketing Specialist. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

6. The delegate refused to grant the visas because Mr Fernandez Lobera did not meet cl.187.233 of Schedule 2 to the Regulations as a consequence of the Department’s decision to refuse to approve the corresponding nomination of a position from his employer, WSP Import and Export Pty Ltd.

7. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.  The nomination must be approved.

8. WSP Import and Export Pty Ltd applied for review of the decision to refuse to approve the corresponding nomination.  On 11 February 2016, I affirmed the decision to refuse to approve the nomination.  My reasons for doing so are set out in the decision record in matter 1500367.

9. As a consequence of that decision, the first-named review applicant is unable to satisfy the requirements of cl.187.233, and specifically cl.187.233(3).  As this is an essential criterion for the grant of the visa, I must affirm the decision under review in respect of him. This issue was discussed with Mr Fernandez Lobera in a hearing on 17 December 2015.

10. The second-named visa applicant, Ms Bailo, relies on her status a member of the family unit of the first-named visa applicant.  As  consequence of my decision in respect of the  first-named visa applicant, she is unable to meet the secondary criteria for the grant of the visa, and I must also affirm the decision in respect of her

11. After I decided to affirm the decision to refuse to approve the nomination from Mr Fernandez Lobera’s employer, I invited Mr Fernandez Lobera to comment or respond to that adverse information.  Mr Fernandez Lobera acknowledged that the requirement for an approved nomination was essential in his case.

12. Mr Fernandez Lobera has responded, and in doing so has set out his achievements in improving his English during his time in Australia, and his understandable disappointment at the outcome of the review of the nomination refusal.   He expressed his concern that his and his wife’s Bridging visa will cease 28 days after I make this decision, after a period of living in Australia for 4 years. Mr Fernandez Lobera expressed his confidence in the ability of his employer to resolve its financial difficulties (these difficulties in general terms being the basis on which I refused the nomination), and suggested that if I could defer my decision on the visas for 7 months, it would be demonstrated that the company had given him employment for two years.

13. It is not appropriate for me to defer my inevitable adverse decision in this matter for 7 months.  The requirements for the approval of the nomination to which Mr Fernandez Lobera refers is assessed prospectively at the time the decision is made about whether or not to approve the nomination, and I have no power to revisit that decision in any event. 

14. I have reached this decision with regret having regard to Mr Fernandez Lobera’s qualifications, English language skills and the value with which he is held by his employer.  I acknowledge that Mr Fernandez Lobera and Ms Bailo have spent a significant amount of time in Australia. I am fully conscious that this adverse decision is disappointing and highly disruptive to Mr Fernandez Lobera and Ms Bailo’s plans for the future. 

15. Mr Fernandez Lobera and Ms Bailo may be able to explore other options for their continued stay in Australia with their registered migration agent if that is their wish.  Unfortunately, they do not meet the essential criteria for these visas and I must affirm the decision not to grant the visas.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Marten Kennedy
    Member