LABRA RODILLO (Migration) - [2018] AATA 2603

LABRA RODILLO (Migration) [2018] AATA 2603 (20 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Javier Leonardo LABRA RODILLO
CASE NUMBER:  1604859
DIBP REFERENCE(S):  BCC2015/1863936
MEMBER:Denise Connolly
DATE:20 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 20 July 2018 at 4:35pm
CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist - Whether the applicant has the relevant skills necessary to perform the tasks of the occupation – No bachelor degree or higher qualification – Whether the applicant has at least 5 years of relevant experience – Work experience not closely related to duties of the nominated occupation – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.234
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 June 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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 the applicant. 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.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113). 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.
The delegate refused to grant the visa on the basis the applicant did not meet cl.187.234 of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant lodged his visa application on the basis of a nomination to work in the position Marketing Specialist. The delegate claims that at the time of application no documents were submitted by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LABRA RODILLO (Migration) [2018] AATA 2603
Case: [2018] AATA 2603
Decision Date: 20 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Labra Rodillo concerning an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to be employed as a Marketing Specialist. The primary dispute revolved around whether the applicant possessed the necessary skills and qualifications for the nominated occupation as required by the visa subclass.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 187 visa in the Direct Entry stream, specifically concerning the qualifications and experience necessary for a Marketing Specialist. This involved assessing whether the applicant had a bachelor degree or higher qualification, or alternatively, at least five years of relevant work experience that was closely related to the duties of the nominated occupation.

The Tribunal affirmed the delegate's decision to refuse the visa. The delegate found that the applicant had not provided sufficient documentation to demonstrate the required qualifications. While the applicant's migration agent later submitted documents, including a Diploma of Hospitality and a letter detailing work experience as a wine sales promotions officer, the Tribunal found this experience was not closely related to the duties of a Marketing Specialist as defined by ANZSCO. ANZSCO specifies that a Marketing Specialist, a Skill Level 1 occupation, requires a bachelor degree or higher qualification, or at least five years of relevant work experience as a substitute. The Tribunal concluded that the applicant had not satisfied these essential criteria for the Direct Entry stream.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant lodged his visa application on the basis of a nomination to work in the position Marketing Specialist. The delegate claims that at the time of application no documents were submitted by the applicant. The delegate notes that on 27 November 2015 the applicant’s registered migration agent was advised by telephone and requested to provide documents within seven days. The delegate notes that on 7 December 2015 an email was sent to the migration agent requesting all the required documents. The applicant was given 28 days to provide the documents. The delegate notes that on 14 January 2016 a Departmental officer rang the migration agent to follow up on the requested information and the migration agent initially claimed that he did not receive any request from the Department, however he looked in his mailbox and located the relevant email. He was apologetic and assured the officer that the information would be sent. However the delegate records that as at the time of her decision no documents had been provided. (As indicated below the representative disputes this). Having regard to the requirements of cl.187.234 the delegate referred to the legislative instrument IMMI 12/060 and noted the applicant was not a person specified for the purposes of cl.187.234(a) (an exempt person). She noted his occupation was not specified in IMMI 12/096 for the purposes of cl.187.234(b)(i). She found that as neither cl.187.234(a) or (b) applied, the applicant needed to demonstrate that he held the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. She noted that according to ANZSCO a Marketing Specialist is a skill level 1 occupation which requires a bachelor degree or a higher qualification, or at least five years’ relevant work experience to substitute for the formal qualification. She found that the applicant had not provided evidence that he has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. She was therefore not satisfied the applicant met cl.187.234. The Tribunal notes that after the delegate made her decision the migration agent wrote to the Department stating that he had uploaded the relevant documentation on 5 February 2016. His response included various documents, copies of which are now on the Department’s file. Included in those documents is a statement of academic results from Cambridge International College Australia for a Diploma of Hospitality, completed in 2013. The applicant also provided a letter from the Director of Restaurant Tesoros de Chile, claiming that the applicant had worked as a wine sales promotions officer from December 2003 to December 2009 at the restaurant and claiming that his duties included:a.analysing market information to identify new opportunitiesb.developing marketing strategies to suit the client’s needsc.advising and developing campaigns to promote client’s winesd.designing and producing promotional materiale.conducting promotion campaigns, including:i.contacting hotels, restaurants and caterers to tailor promotions according to their needsii.training staff in promoting wines to customers and food-wine matchingiii.working with wine producers to market their wines to the publiciv.preparing, cooking and demonstrating different ways to match food-winef.conducting follow-up investigationsg.analysing the efficiency of wine sales promotions and recommending any changes based on the results.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.Denise ConnollyMember

Ratio Decidendi

Legal Principle Established

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