Australia: Addressing the Genuine Position criteria for the Temporary Skills Shortage (TSS) visa – Subclass 482

The Temporary Skills Shortage (TSS) visa – Subclass 482, introduced in March 2018, is comprised of three applications; the Sponsorship, the Nomination, which relates to the position to be filled, and the Visa, which relates to the individual who will fill the position.

The focus of the 482 is the Nomination. The Nomination involves complex criteria and employers would be well advised to ensure that the documents and application form are well prepared to address these criteria. Criteria include 'Labour Market Testing', 'Market Salary Rates', and 'Genuine Need' or 'Genuine Position', among others.

The Genuine Position (sometimes referred to as Genuine Need) criterion is among the most likely to result in a refusal. Its purpose is to ensure the 482 program is being used to meet genuine skill needs. However, the criterion is highly subjective involving consideration of whether the role is consistent with the nature of the sponsoring business or its 'size and scope' and must be addressed with care by sponsors.

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To ensure the Genuine Position criterion is met, sponsors should consider and consciously address the following factors:

Nature of the business

Case Officers from the Department of Home Affairs will look closely at the business activities and the proposed position. In many respects, this amounts to a 'commercial' assessment of the nature of the role and the business the sponsor is operating.

Core business

The first factor for consideration is the sponsor's business activities. Does it operate in the finance or insurance sector? Hospitality? Construction or Engineering? Sponsors should not underestimate the value of presenting this information clearly to Case Officers.

Size and scope of the business

The second factor the Case Officer will consider is the size of the business. The Case Officer will assess whether they consider the business capable of meeting the sponsorship obligations, salary commitments, and provide ongoing employment for the employee.

If you are operating a smaller business then it is important to ensure that your capacity to sponsor is clear. This can be done by providing additional information about the business turnover, profitability, or current staff numbers (for example by providing an organisational chart).

If the business is small, a start-up, or has experienced substantial losses in recent years, particular attention should be given to demonstrating the businesses approach to addressing these issues. Current business plans, commercial contracts, and other documents may be beneficial. Normally these documents would not be provided with the Nomination, as they are not perceived to relate to the position. However, a broader approach recognises that commercial viability is going to factor into the Case Officer's assessment. Given the substantial financial risks associated with refusal and loss of visa and other levy charges, sponsors should address these concerns up front in order to mitigate risk.

Nature of the position

Once the Case Officer has firmly established the nature of the business, they will consider the position. The type of position is conveyed through the nominated ANZSCO code, the position title, and the position description.

Duties

Providing a detailed position description is critical. Some organisations have highly detailed descriptions, in some cases amounting to multiple pages setting out duties, responsibilities, competencies, reporting, and so on. Other organisations tend towards broad descriptions, in some cases with little more detail than what is seen in job advertisements.

We recommend that sponsors tend towards more detail rather than less. Key requirements to be addressed include (a) overall position purpose (b) duties of the role, potentially in dot points (c) skills and experience required (d) other competencies including soft skills, technical knowledge, etc. These requirements should be detailed and provide a clear outline of the scope of the role.

Sponsors must be familiar with the Australia & New Zealand Standard Classification of Occupations (ANZSCO) system and understand how to assess the nominated position against a suitable occupation. The occupation itself must feature on the Short Term Skilled Occupation List (STSOL) or Medium and Long Term Skilled Shortage List (MLTSSL). To properly align, nominated positions must include a 'significant majority' of duties outlined under the ANZSCO code. The tasks must also not be inconsistent with any special 'inapplicability criteria' that apply to the occupation.

Case Officers will consider whether the nominated position is consistent with the nature of the business. Ensuring Case Officers have an understanding of how the position will fit into the business is essential. In some cases this requirement is straight forward – a chef in a restaurant, a dentist in a dental clinic, or an engineer in a civil construction business. In other cases, the fit may be less obvious – an IT support technician in an accounting firm, an accountant in a mid-size retail business, or a sales and marketing manager in a food manufacturer.

Where there is a potential for misunderstanding the 'fit' of the position in the broader business, efforts should be made to demonstrate how and why the role fits into the organisation. This can be achieved by providing business plans, evidence of current project work or new areas of development within the business. Where small and mid-size businesses are engaging professional service staff (such as a mid-size retailer seeking a full time internal accountant) a statement about the financial benefits of engaging the position may be necessary.

Demonstrating that the position is consistent with the broader business is one of the most critical aspects of this assessment and sponsors should spend time considering how this can be proven and what supporting materials show that there is a legitimate need for the position.

Remuneration

Remuneration is considered closely by sponsors under the 'Genuine Position' requirement. While it may appear that remuneration is only a factor for assessment against 'Market Salary Rate' requirements, the level of remuneration will be considered by Case Officers when assessing the genuine nature of the role. A General Manager or CEO with a seemingly below market remuneration rate will trigger concerns from Case Officers.

Sponsors should place themselves in the shoes of the Case Officer and seek to address concerns about low salary levels in advance by providing statements from internal or external stakeholders explaining why the remuneration may be below expected levels. This data can and should also be used to support Market Salary Rate claims.

Risk factors

There are many risk factors relating to 'Genuine Position' and we recommend that sponsors (a) disclose these where they exist and (b) address them up front with as much supporting evidence as possible. The below are a list of clear risk factors that should be taken into consideration when preparing and lodging an application:

  • Family or other personal relationships between business stakeholders and visa applicants
  • Whether there are already existing employees in the same position (for example, a mid-sized retailer engaging a second Accountant)
  • Retrenchment of Australians in the past 12 months
  • High level of non-Australians employed in the business
  • Industry or sector decline or drop in business turnover

Each of these factors requires specific consideration and documentation to address. Where possible, sponsors should provide independently verifiable evidence (ie, contracts with 3rd parties or other information from an external source) or prepare their own statements. Generic submissions are given little weight by the Department of Home Affairs.

Conclusion

The Genuine Position requirement is one of the most challenging to address in the 482 Nomination. Real consideration should be given to providing high quality supporting evidence with each application. If the sponsor has previously applied for similar or the same positions, they should not assume that future applications will be successful.

As with all immigration requirements, knowing the Department's approach is essential to ensuring a successful application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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