RCB Negative Outcome

[Anya]

Hi all, 

RCB & VISA lodge: August 2017 

RCB Negative Outcome: September 2017 

We got RCB negative outcome for the visa 187 for position Office Manager. My MA they told us not to worry because RCB does not necessarily lead to refusal of nomination, but may need to provide more document when comes to nomination stage. 

I wonder does anyone here experience what I have now? I wanted to apply for the second RCB but agent said it is not necessary. One year has past, I’m getting anxious with the result! Sigh. 

 

Thanks guys! 

[wrussell]

Here is a rundown on the relevant policy:

4.6.4 Advice from a regional certifying body must be received

Paragraph 5.19(12)(f) of the Regulations provides that for an RSMS nomination to be approved, the decision-maker must have been advised by a body (Regional Certifying Body) (RCB) specified in a legislative instrument about matters relating to the following:

·        whether the identified person would be paid at least the annual market salary rate for the occupation

·        whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator, and

·        whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned.

In accordance with sub-paragraphs 5.19(12)(g)(ii) and (iii), this RCB must:

·        be located in the same State/Territory in which the nominated position is located

and

·        have responsibility for the local area in which the position is located.

o   Note: if a State/Territory has several RCBs, the assessment must be conducted by the RCB that has responsibility for the regional area in which the nominated position exists.

The section below provides additional advice on such RCB advice and how it should be assessed by decision-makers.

4.6.4.1 Seeking RCB advice

Some RCBs have established processes specific to their organisations, for managing requests for assessment in regard to RSMS nominations. These processes may include the completion of specific paper-based or electronic applications. Nominators intending to lodge RSMS nominations under the DE stream must comply with specific requirements (if any), imposed by the relevant RCB in regard to making applications/requests for assessment.

4.6.4.2 Assessment by the RCB

RCBs are not required to assess the regulatory criteria as would a decision-maker. They are expected to provide advice which the decision-maker will then take into account.

In providing their advice, RCBs will, however, be guided by policy parameters outlined in relation to each of the specified ‘matters’ as detailed in the Regional Certifying Body User Guide and Instruction Manual (the manual). 

4.6.4.3 RCB advice format and inclusions

RCB advice should be provided on form 1404 or their own form, where approved, which includes the following information.

Details of the nomination

The following five details in regard to the nomination assessed must be provided:

·        registered name of the nominator

·        ABN of the nominator

·        ANZSCO code relating to the nominated position

·        position title of the nomination position

·        nominated salary.

Information regarding the RCB

The form should include the following information:

·        the name of RCB and

·        the name of the representative of the RCB providing the advice.

Statement regarding the assessment

The statement should indicate that the RCB has considered the matters outlined in regulation 5.19(12)(f) and is providing advice related to these matters.

The advice

The RCB advice should indicate whether they they believe that:

·        the identified person will be paid at least the annual market salary rate for the occupation;

·        there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator; and

·        the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.

The advice should be dated and the RCB must provide a brief summary of their reasons for the advice. This will assist giving decision makers a view of the specific occupational and broader labour market context within which the nominated position exists.

Note: As Form 1404 does not have space for the RCB to provide the reasons for their advice or further details in regard to their assessment. The RCB must include this information in a separate document.

4.6.4.4 Provision of RCB advice

The RCB will provide:

·        a hard copy of form 1404 or approved alternative form direct to the nominator for submission to the department

·        a copy of the form 1404 or approved alternative form and the document containing the additional information explaining the rationale for their advice, to the department. This information will be provided via email to an address specified in the RCB manual.

The RCB may choose to provide the additional information (such as the reason for the advice) to the nominator.

4.6.4.5 Submission of RCB outcome by nominator

If a nomination is lodged after obtaining RCB assessment, it should be uploaded to ImmiAccount when the nominator lodges their online application. If the nomination was lodged prior to RCB assessment, the document should be uploaded as soon as possible, after it is available to avoid processing delays. 

4.6.4.6 Period of validity of the assessment

Under policy, the RCB assessment must have been obtained no more than 3 months before the date the nomination is lodged. Therefore, if the assessment is dated more than 3 months before the date the nomination is lodged, a fresh RCB assessment will be required.

4.6.4.7 Consideration of the advice provided by the RCB

Although the Regulations do not stipulate that the advice provided by the RCB must be considered by the decision-maker, this is implied.

The decision-maker must independently assess the nomination against all the criteria, however, they need to consider the RCB’s advice, and should generally place weight on the RCB’s views as to whether the position can be filled locally by virtue of their location, local knowledge and experience, unless there is clear evidence supporting an opposing point of view.

If the decision-maker’s assessment is contrary to the advice provided by the RCB, the delegate may wish to discuss their point of view with the RCB before moving to a decision.

Important: If the nomination is to be refused on the basis of negative RCB advice, the nominator must be accorded procedural fairness and given an opportunity to comment on the advice provided before a decision is made.

 

[Jane Sun]

Dear wrussell , can you show me where did you find this :4.6.4 Advice from a regional certifying body must be received

[Marisawright]

35 minutes ago, Jane Sun said:

Dear wrussell , can you show me where did you find this :4.6.4 Advice from a regional certifying body must be received

WRussell is a reputable migration agent.  If he says that is the case, it is true.

[wrussell]

The information was from LegendCom, which is a subscription service and forms part of the mandatory professional library of registered migration agents.

It can be accessed free in some public libraries.  

https://immi.homeaffairs.gov.au/help-support/tools/legendcom/subscribe

It should be noted that policy is not law.

[wrussell]

I have answered your email.

Immigration does not have to accept an RCB opinion, but an application cannot proceed if an RCB opinion is negative.

May I suggest that you confer with your RMA?