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Genuine Need - Additional Guidelines


Written By Shannon Dutt
Fri, Jul 8, 2016
Shannon Dutt

The purpose of the Department’s emphasis on genuineness is to ensure that the 457 visa program is being appropriately used to nominate skilled labour; at times where it has been difficult to source local labour. The requirement is that the position associated with the visa application is genuine.

The Department has released additional policy guidelines regarding Genuine Position criteria.  We believe these changes will be of interest to all companies that sponsor 457 visas if only because the application of the genuineness policy in the past seems to have been applied by the Department inconsistently and, when additional information is requested, can greatly increase processing times, as noted above.

The changes to the guidelines include a listing of the factors that would support an assessment of a position as genuine; as well as factors that would not support as the assessment of a position as genuine.

The new policy suggests that the Department is likely to perform further investigation of the genuineness of the position where there is any information to suggest:

* that the position has been created to secure a migration outcome;
* the tasks of the position do not align, or at least substantially align, with the tasks that are outlined for the position in the ANZSCO;
* the position is inconsistent with the nature of the business.

The nature of the genuineness criteria suggests that the Department are likely to be prompted to enquire further where any of the following circumstances occur:

* the business is newly established (operating for up to 3-6 months), or relatively small in size and has a turnover that would not appear to support the salary of the nominated position;
* it is not clear or evident that the significant majority of the tasks of the position align with those outlines in the ANZSCO at the appropriate level;
* where minimal documentary evidence is provided in support of a nomination application.

The Department has indicated factors that would add weight to the assessment of a position as genuine:

* a position has recently been occupied by a 457 visa holder or Australian;
* there has been a transparent recruitment process;
* the position is highly skilled with specific tasks outlined in the ANZSCO;
* the position fits clearly with the scope and nature of the business;
* there is evidence that the business required new positions.

The Nomination checklist on the Department’s website has been updated by way of encouraging agents to provide ‘sufficient’ supporting documentation in relation to the relevant criteria (Migration Regulation 2.72(10)(f)), suggesting it may be prudent to submit applications with additional documentation to demonstrate, for example, how the nominated position fits within the current operating environment.

Supporting documentation identified as particularly useful includes:

*the nominee may be undertaking a broader range of duties - additional evidence should be provided to demonstrate that the position is at the appropriate skill level and only limited or ad hoc time will be spent doing other tasks (particularly if these are tasks that could be performed by a non-skilled employee); 

* the business is hiring an employee in a position that does not seem to fit within the scope of their business - additional evidence should be provided to explain why this position is consistent with the nature of the business;
* the size of the business does not appear to support such a position - additional evidence should be provided to demonstrate that the position fits within the context of the business

Independently verifiable evidence should be provided where possible 
(for example, copies of contracts, purchase orders from third parties) as this will be given the greatest weight by visa decision-makers. For example, if a business is expanding and this is why it is hiring additional staff, evidence could include copies of new contracts, copy of a lease for new premises or evidence of purchase of a new equipment. 

Comment

The genuineness criteria that have been outlined by the Department should in theory assist in better assessing a company’s ability to sponsor a nominee and in assessing the position that is being put forward.

We would rate the changes as helpful insofar as they provide greater guidance on the preparation of applications and the preparation of genuineness submissions.  However, the changes do not appear to address the inherently subjective nature of the policy around the genuineness criteria.  It will remain to be seen whether the changes provide greater certainty and/or decrease requests for further information.

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