457 Visa Refusal on Genuine Position Grounds
We are seeing more and more 457 visas are getting refused at the nomination stage on the grounds of“Genuine Position”. Yikes!
With all the immigration scams that have made their way onto the news recently, the Department of Immigration and Border Protection (DIBP) has been processing work visas, with special attention to Temporary Work (Skilled) visas (subclass 457) , with extra fine toothed combs. Starting not much more than half a year ago on 14 December 2015, “new criminal and civil penalties and visa cancellation provisions were introduced as part of a framework that allows for sanctions to be imposed on a person who asks for, receives, offers or provides a benefit in return for a visa sponsorship or employment that requires visa sponsorship (otherwise known as a ‘sponsorship-related event’)”. Sponsors, nominators and visa applicants are now required to fill in a declaration form stating that they have not engaged in any form of exchange in benefits (payment for sponsorship).
The 457 programme is built to support the gaps in the job market, filling temporary skill shortages for occupations listed on the CSOL where a suitable Australian candidate is unable to be sourced. Any other reasons in using this channel to gain a visa in Australia is abuse of the system. The genuine position requirement asks that the position exists and aligns with what is expected in the nominated occupation – that the sponsorship arrangement is a genuine event. This requirement exists to weed out both companies and applicants who are attempting to make personal gains through the falsifying of a work position.
We’ve looked at the DIBP’s Procedures Advice Manual (PAM) on the regulations surrounding the genuine position requirement and discovered that the DIBP starts to question if a position is genuine when:
- They suspect that the position was created to secure a migration outcome
- Tasks of the position do not align with those detailed for that nominated occupation in ANZSCO
- The position does not appear to be consistent with the nature of the business
Position created to secure a migration outcome
Should there be reason to believe that a position did not exist but was created, solely for the purpose of aiding the applicant in obtaining an Australian visa, the DIBP will question the application. Examples of reasons they may have to become concerned include:
- The nominee being personally associated with (e.g. relative) a member of the sponsoring business
- The nominee being a director or owner of the sponsoring business*
- The nominee is currently in Australia and already working for the sponsor and/or their immigration history suggests
- Business is very new, especially if it looks to be created for the purpose of generating migration opportunities
- Proposed salary is not up to industry standards or too far over industry standards
- Business does not have a turnover that would comfortably support the nominee
- Business has very little Australian employees
- Any evidence that the business may have received some benefits from the nominee in exchange for sponsorship
* Self-sponsorship is not disallowed, however “there needs to be another reason for the position being created. It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to permanent migration. Such arrangements can be approved under policy if there will be a genuine economic benefit resulting to Australia (for example, an innovative IT entrepreneur intends to move their business to Australia, which will support growth in the technology sector and create jobs for Australians).”
Tasks of position do not align with nominated occupation
The DIBP will not accept that a position is genuine if the tasks associated with the role significantly differ from those outlined for that nominated occupation in ANZSCO. This is to prevent sponsorship for roles that are have not be determined to be in shortage in Australia(Consolidated Sponsored Occupation List ‘CSOL’). The DIBP will assess not only the obvious documents but the context within which the business operates as well. This can include:
- Location of work
- Position in terms of organisation structure
- Proposed duties
- Tasks currently performed by other employees
For example, a small cafe that already has an employee performing accounting tasks will not require a second accountant. An application to sponsor a second accountant would be red flagged as the position is unlikely to be necessary and hence may not be genuine.
Position is not consistent with the nature of business
There will also be concern where the position does not seem to be appropriate for the sponsoring business. This can be in the form of conflicting scope of activities or if the size or turnover of the business does not look to be able to support the nominee.
For example, a small medical business is unlikely to require an architect in its employ. Another example is if a restaurant with a turnover of $300K that already has 4 cooks on its payroll were to seek to sponsor yet another cook, all at an annual salary of $55k. It just doesn’t add up and will raise grounds for suspicion.
Other factors that may raise suspicions include:
- Company is not in the position to be hiring – is not doing well financially or industry is in decline
- There is high unemployment in that industry/profession that may indicate that Australian residents are in higher supply
- Company has appeared to be vacating a position to sponsor an employee (on a lower pay)
- Company is an overseas business and attempting to sponsor an employee from that country
- Documents that look very ‘cut and paste’ or templated, especially if the role description appears copied from the ANZSCO as opposed to being tailored for the business
How do we prove a position is genuine?
The assessor will also consider the following to be positive signs that a position is genuine:
- Evidence that shows the position pre-exists – that there was a previous 457 holder in that position, or an Australian employee who has since departed the business
- Evidence of the position having been advertised and filled through a transparent recruitment process
- Position is a highly skilled one that cannot be filled by someone with more ‘general’ skills
- Position fits clearly with business activities
- Evidence can be provided that the business requires those new positions
Materials that can aid the assessor in determining genuine position include:
- Organisational chart – this shows how the position fits into the business structure and business activities
- An overview of the current employee makeup of the company, especially the ratio of Australian resident to sponsored workers
- An overview of how the position contributes to the output of the company, whether this be the position being necessary in maintaining the current status or how the position will directly influence expansion of the business
- Documents surrounding the employment of a previous member of staff in the nominated position
- Reports on the growth of a company (specifically the demand on the company, e.g. hours of operation, overtime demand on current staff, increased customer numbers) that would support the need for the additional employee(s)
Positions that are more ‘general’ tend to face higher scrutiny as they are highly subjective and more easy to ‘fit’ a nominee (that may not have the skills or is using the 457 programme solely as a means to enter Australia) into. These include occupations such as cooks, customer service managers, marketing specialists and project administrators (not exhaustive). If you are a nominee or business looking to sponsor an employee in positions such as these, you would need to take special care in providing evidence that supports the position to be genuine.
Whilst naturally the nominee must show that they are capable and appropriate skilled to fulfil the position, genuine position focuses a little more on how the position is necessary to the company. Understanding this will aid you in determining the type of documents that are required in the application and give rise to less frustration.
The preparation of documents can understandably be tricky and we do advise seeking the counsel of an experienced migration agent to assist in such applications, especially with the heat employer sponsored visas are facing currently. The value of getting it first the right time far outweighs the added expenses as a review of a refused application exceeds the cost of the initial application, will drag the process out possibly over a year and putting in another application with a history of a visa refusal is never a good look.