Sub-regulation 2.72(10)(a) provides that the delegate must be satisfied that the position associated with the nominated occupation is a genuine position.
Due to the economic impacts of the COVID-19 pandemic, it is critical that job opportunities for Australian workers are prioritised. When considering whether the position is genuine, decision makers give particular attention to nominations made by a business who employs or has recently previously employed Australian workers in the same or similar occupations.
Factors supporting “Genuine position”
The position is a highly skilled position with specific tasks outlined in ANZSCO
The position fits clearly within the scope of the activities of the business
The business has provided evidence that demonstrates that new positions are required
There is evidence relating to a previous occupant employed in the position, and/or
There is evidence that the position has been advertised and filled through a transparent recruitment process prior to the position being offered to the nominee.
Factors not supporting "Genuine Position"
There is evidence that the industry in which the nominating employer operates is in decline.
According to a reputable source (for example, joboutlook.gov.au) there is an average or above-average rate of unemployment in the nominated occupation/industry.
The nominating employer has taken one or more of the following four actions in regard to employees in the nominated occupation or similar occupations: retrenchment in the previous 12 months, reduction of hours worked during the previous 12 months, reduction in pay and conditions within the previous 12 months and/or employment of a temporary visa holder on conditions less favourable than those for Australian employees.
The sponsor is a small business employing multiple 457 or TSS visa holders or other temporary foreign workers in similar positions and/or the sponsor has no, or very few, Australian employees.
The nominated positions are managerial in nature and the proposed salary is at the lower end of the market salary rate range for such a position.
The ANZSCO dictionary lists only very broad, generic tasks.
The Department has previously identified a trend of sponsors using the occupation in an attempt to utilise the subclass 457 or TSS visa program inappropriately – that is, accommodate semi-skilled workers or undermine other visa programs.
The sponsor is an overseas business and the sponsor seeks to employ the visa holder through an associated entity in Australia.
The sponsor is an overseas business that has been approved to establish a branch of the business in Australia and the positions nominated are not such that the nominee would be assisting in establishing the Australian business or be responsible for a substantial part of the operations of the business in Australia.
There appears to be inconsistent information provided regarding the tasks that the nominee will perform and/or these do not appear to align with those outlined in ANZSCO.
Reflection
The assessment of genuine position criteria leaves a great deal of discretion on decision makers despite detailed policy has been provided. We assist our clients to prepare a range of supporting evidence to strengthen the genuineness of the position, eg, evidence of company financial capacity, recruitment efforts, detailed organisational chart, and (GPS) genuine position submissions for all relevant applications.
For more information, contact our team and book a consult via info@xmmigration.com.au
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