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Genuine Position Criteria in 2016


Written By Shannon Dutt | Thu, Sep 8, 2016 Shannon Dutt

On 1 July 2016, The Australian Department of Immigration and Border Protection released additional policy guidelines regarding Genuine Position criteria. 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 nominated occupation is genuine.  A purpose of the additional guidelines was to introduce greater clarity around the issues with a view to helping understand what will make for a successful nomination and hence make the application process more certain.  There is some question, however, whether the new guidelines can achieve this result.

Background
Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine. This is considered an important regulatory criterion in terms of ensuring that 457 visas are used to address temporary skill shortages, for specific nominated occupations in circumstances where an Australian worker cannot be sourced. When first introduced, this was seen as a way to refuse nominations for semi-skilled positions put forward as though the job was in a skilled occupation.

One of the issues that arose, however, was the apparently random manner in which immigration case officers began to question nominations.  When nominations were questioned, another issue was the uncertainty around what information was needed to persuade a case officer that the position is indeed genuine.

A summary of the new guidelines

The additional guidelines clarify 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

Factors that the Department deem to raise concerns and prompt further inquiry on whether the position has been created to secure a migration outcome include:
▪ The relationship of the nominee to the sponsoring business – whether a personal associate or relative
▪ The nominee is a director or owner of the business
▪ The nominee is working for the sponsoring business in Australia and their immigration history suggests that they would stay on any visa to prolong their stay
▪ the proposed salary is lower than industry standards
▪ the business does not employ Australians/employs very few Australians
▪ 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.

Addressing Genuine Position concerns
The above factors can give a degree of advance warning with regard to aspects of a nomination that may lead a case officer to question whether a position is genuine.  Information that may be relevant to counter potential concerns might therefore include:
▪ bringing to attention if a nominated position has recently been occupied by a 457 visa holder or Australian
▪ highlighting any recruitment process that occurred
▪ providing an extra level of detail in explaining how the position can be linked to a highly skilled occupation
▪ providing an extra level of detail to demonstrate the position fits clearly with the scope and nature of the business
▪ providing evidence that the business requires new positions

Which documents can help in confirming the genuineness of the position?

▪ organisational chart that indicates how the position fits within the business
▪ outline of the goods and services provided by the business and how the position contributes to the outputs of the business
▪ evidence to show that the position has existed and was previously occupied but has become vacant through attrition or is occupied by a temporary resident
▪ increase in business activity over the previous months/years that that required the need for the nominated position
▪ increase in operating hours and growth in customer numbers that requires additional staff
▪ a signed statement by the employer providing details of the business and the need for the position to maintain or enhance the business’ output.
▪ Supporting information about the business such as new contracts won, pictures, website details, financials to show a growth in the business

Comment
The additional information noted above is helpful in giving a framework for helping better prepare nominations and in responding to requests from the Department regarding the genuineness of nominated positions. 

It is prudent to keep in mind, however, that guidelines cannot of themselves clarify all aspects of what is inherently a subjective policy.

For up to date Australian immigration advice, compliance and processing contact TSS Immigration on 03 9421 1020 or send an enquiry to hello@tssgroup.com.au

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