Making the law work for you

The debate around the genuineness of the 457 Visa applicant

AMALSA MAKES THE LAW WORK FOR YOU From the Director’s Desk It seems like one of the “hot topics” in migration law is establishing that the position for which a 457-visa applicant has been nominated is “genuine”.

It seems like the reason that this requirement has been so controversial is because it allows scope for a huge amount of subjective judgment on the part of a case officer, or, for that matter, the Tribunal, to determine what is genuine, and what is not.

Is this one of those situations where the answer to the question of whether a position is genuine is: “I’ll know it when I see it?”  

This article explains the red flags, which tend to prompt further investigation by the Department of Immigration.

From Elizabeth Wisser

Occupation

Certain occupations attract a higher level of attention from Immigration, and hence require a higher level of supporting evidence.

These occupations include:

  • Cafe and Restaurant Manager
  • Program or Project Administrators,
  • Specialist Managers NEC
  • Accountants and Marketing Specialists
  • Customer Service Manager

Cafe and Restaurant Manager

The Department has a policy that the duties of Cafe and Restaurant Managers should include the planning of menus with chefs, as well as the planning of events or functions.

The Department will also want to see that the business is operating as a cafe or restaurant and not as a takeaway food outlet.

Accountants and Marketing Specialists

We have seen the Department target positions nominated as Accountants and Marketing Specialists.

The Department’s view is that these should be very senior-executive level positions so, if your position involves lower level duties which are not included on the 457 occupation list, they may be inclined to refuse the application.

Program or Project Administrators, Specialist Managers NEC

These occupations were previously, frequently used as “catch all” options for positions that did not clearly fit in a CSOL occupation. They now require a formal skills assessment, which most applications would not be able to pass.

Customer Service Manager

This is another occupation, which was frequently used, and it is only appropriate where the sponsored person is responsible for managing a team of customer service staff. It would include hiring, training, setting policies and procedures and other high level tasks. If your 457 applicant is actually serving customers, they are unlikely to be fit under this occupation.

Sponsorship of a Related Person

Recent changes to the immigration policy means that it is much more difficult to sponsor yourself for a 457-visa if you are a business owner or company officer (“self sponsorship”). This covers situations where:

  • the visa applicant is a director or owner of the sponsoring business
  • the visa applicant is a relative or personal associate of an officer of the sponsoring business

In the above cases, the Department may suspect the nominated position is being created purely for the purpose of securing entry for the owner or family member and will seek further evidence from you to evidence the position is genuine.

Business owners may consider other options such as GSM, Business Migration, ENS/RSMS.

Salary Level

Temporary Skilled Migration Income Threshold (TSMIT)

Whilst 457 applicants must be paid an annual base salary that is at least the relevant TSMIT – currently set at $53,900 – the Department will look unfavourably on your application if your base salary offer is exactly $53,900 or very close to it.

Unless you can evidence that the market rate for a similar position and location is exactly $53,900, you will incur suspicion as to whether the position offered is genuine.

High Salary and the English Language Exemption

Similarly, offering your applicant a base salary above the English language exemption threshold – currently set at $96,400 – may incur further investigation. The Department may suspect the salary offer is inflated simply to avoid meeting the English language requirement and secure a 457 visa.

You will need to show that the position is at an executive level commensurate with the salary you have offered the applicant. If evidence suggests the market rate for a similar position and location is disproportionately lower, further investigations will be conducted to determine whether the position is genuine.

Your applicant will also need to have a skill level commensurate with the salary offered.

Location and Nationality of Applicant

Overseas applicants from certain passport countries may merit investigation, particularly if they have no prior connection to the business. In this case, the Department is likely to raise questions about how the applicant was identified as being suitable to the position and why they would be the best person for the role. Immigration may suspect that the 457 applicant may have paid for the position to be offered, or that they are a relative.

It also appears that certain nationalities receive extra attention from Immigration – perhaps because these practices are perceived to be more common.

Recommendations

Whilst any one of the above scenarios may not necessarily result in your application being a target or refused, it is important that you understand why the provision of additional documents may be recommended to satisfy Immigration that your nominated position is genuine.

Elizabeth Wisser
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