How to address the genuineness criteria in a TSS nomination application

A position associated with a nominated occupation in a TSS application must be genuine. This is considered an important regulatory criterion in ensuring that TSS visas are used to address temporary skill shortages for specific nominated occupations in circumstances where an Australian worker cannot be sourced.

The purpose is to ensure that business do not create a position (for example, to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available) or nominate a position that, despite its title or listed duties, does not align in reality with an eligible occupation as described in ANZSCO (that is, ‘dress up’ a semi-skilled position in order to facilitate a visa for a person).

One of the issues with this provision, however, is the subjectivity with which genuineness assessments are made. Often, adverse assessments are made based on erroneous assumptions. To mitigate an unwarranted refusal based on genuineness grounds, we suggest preparing detailed submissions to be lodged with the initial application. This article provides suggestions as to the content of such submissions.

What documents should be provided to avoid additional assessments?

Under policy, officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application. Specifically, officers should feel confident to do so particularly where:

1. the position is a highly skilled position with specific tasks outlined in ANZSCO
2. the position fits clearly within the scope of the activities of the business
3. the business has provided evidence that demonstrates that new positions are required
4. there is evidence relating to a previous occupant employed in the position, and/or
5. there is evidence that the position has been advertised and filled through a transparent recruitment process

Any genuineness submission should therefore address each of the above headers.

When would you expect a further assessment?

Under policy, case officers may pursue further assessment if there are doubts about any of the above document and there is information which suggests:

1. the nominated position may have been created to secure a migration outcome for the nominee and/or any of their family members;
2. the tasks of the position do not substantially align with the tasks of the nominated occupation as described in the ANZSCO;
3. the position may not be consistent with the nature of the business

In any of these circumstances, further detailed genuine position submissions should be provided (see below).

If genuineness needs to be assessed, which factors would support a genuine position?

Under policy, officers should consider the following factors, which add weight to an assessment that the position associated with the nominated occupation is genuine:

1. The position is a highly skilled position with specific tasks outlined in ANZSCO (as opposed to a generalist ill-defined role)
2. Note: officers should check the duties of the role rather than just using the internal business titles as they may not align with the ANZSCO title
3. The position fits clearly within the scope of the activities of the business
4. The business has provided evidence that demonstrates that new positions are required
5. There is evidence relating to a previous occupant employed in the position – for example, there was a previous 457 or TSS holder in the position or the business has indicated that an Australian was previously holding this position but has since left
6. There is evidence that the position has been advertised and filled through a transparent recruitment process
7. The business has provided evidence of having checked if the nominee is eligible for any licensing and/or registration requirements

Evidence that can be useful to support such an assessment includes:

1. a breakdown of the organisational structure (organisation chart) to indicate how the position fits into the business activity
2. an outline of the goods or services produced by the business and how the position and its associated duties contributes to maintaining or enhancing the volume and/or quality of these outputs (this may include detailed and quantifiable plans for future expansion)
3. evidence that the position has existed and been previously occupied, but has become vacant through attrition or is currently occupied by a temporary resident
4. increase in business activity over previous months or years (for example, new contracts won, increased demand) requiring persons in the nominated occupation
5. hours of operation and/or growth in customer numbers which explain why additional staffing may be required – that is, to meet increased demand and ensure coverage across the working week
6. evidence as to what percentage of the sponsor’s workforce are Australian citizens or permanent residents, and
7. overtime work, or increases in overtime work, for employees currently in the nominated occupation

If genuineness needs to be assessed, which factors do not support a genuine position?

Under policy, factors that might add weight to an assessment that the position associated with the nominated occupation is not genuine are:

1. There is evidence that the industry in which the nominating employer operates is in decline
2. 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
3. The nominating employer has taken one or more of the following four actions in regard to employees in the nominated occupation or similar occupations: (1) retrenchment in the previous 12 months (2) reduction of hours worked during the previous 12 months (3) reduction in pay and conditions within the previous 12 months and/or (4) employment of a temporary visa holder on conditions less favourable than those for Australian employees
4. 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
5. 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
6. The nominated occupation is one that: (1) the ANZSCO dictionary lists only very broad, generic tasks (for example, Marketing Specialist, Program or Project Administrator, Specialist Manager NEC); and/or (2) 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
7. The sponsor is an overseas business and the sponsor seeks to employ the visa holder through an associated entity in Australia
8. 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
9. 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
10. The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description

Distinguish between “is it needed” or “occupation is genuine”?

Department policy holds that the requirement is not that the position itself must be genuine or ‘needed’, rather it is that the position associated with the nominated occupation must be genuine. That is, the position must exist and also be what it purports to be. Specifically, policy provides the example:

“If a fundraising business is seeking to employ a person to dress in an animal costume and collect donations from the general public and has nominated a Marketing Specialist (ANZSCO 225113), whether the business has a genuine need for such an employee is irrelevant. But, for this criterion to be satisfied, the officer would need to be satisfied that a position exists that requires the occupant to undertake the duties of a Marketing Specialist (as described in ANZSCO) – which would appear unlikely in this case. The ‘genuineness’ assessment does not equate to a commercial decision as to whether it makes good business sense to hire a particular worker or pay them a particular salary. It is, however, the department’s role to prevent the misuse of the TSS visa program through the creation of non-genuine positions.”

Conclusion

Despite detailed policy surrounding the genuine position criteria, unfortunately it leaves a great deal of discretion on decision makers given it is an inherently subjective assessment. We work with our clients to prepare detailed genuine position submissions for all relevant applications to sway the case officer of the genuineness prior to deciding on whether to undertake a further assessment. Once an adverse decision (whether correctly or incorrectly) has been made, often the normal course of recourse, being an application to the Administrative Appeals Tribunal, is time consuming and therefore no longer commercially feasible.

For up to date Australian immigration advice, compliance and processing contact Hannan Tew Lawyers on (03) 9016 0484 or send an enquiry to [email protected].

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.