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What are the supporting document's in migration?
what are the supporting document's in migration?
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More information required - Visa type and category.
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for example a Genuine Position & No equivalent worker.
Here are some extracts from a DIBP request and their policy notes that might help you:for example a Genuine Position & No equivalent worker.
No equivalent worker
You have stated in the application that there are no other Australian citizens or permanent
residents in your business in an equivalent position.
You have indicated that you intend to pay a proposed base salary of xxx to the nominee.
Please provide evidence of how the nominees salary has been determined.
To facilitate the processing of your application, submit a statement explaining why you are
paying this proposed base salary. This may include information regarding the nominee's
years of experience, qualifications, additional skills, expertise and/or background.
Also, provide independent evidence demonstrating that the proposed terms and conditions
of employment for the nominee
are not less favourable than what would be provided to an
Australian citizen or permanent resident performing equivalent work at the same location.
The following are examples of independent evidence:
● If there is a Fair Work instrument, State industrial instrument or transitional
instrument that would apply to Australian citizens or Australian permanent
residents in similar workplaces, and an Australian citizen or Australian permanent
resident would be provided with employment terms and conditions in line with the
instrument, provide a copy of the relevant instrument.
● If a Fair Work instrument, State industrial instrument or transitional instrument
does not apply, and an Australian citizen or Australian permanent resident would
be provided with employment terms and conditions at above award rates on an
individual contract, provide a range of evidence from the following list:
❍ evidence of what Australian employees are paid in similar workplaces
including:
● information from employer associations.
● information from unions.
❍ broader labour market salary data including:
● appropriate references to the Australian Bureau of Statistics (ABS)
Employee Earnings and Hours Survey available at Australian Bureau of Statistics, Australian Government
● appropriate references to the Australian Government's Job Outlook
website available at Job Outlook - Make Your Career a Reality
● copies of remuneration surveys (a number of surveys with an
explanation of how they relate to the nominated position). Where broad
ranges are given in the remuneration surveys provided, also provide
reasons a particular salary level has been selected for the nominee.
● similar job vacancy advertisements together with the salary, duties and
job description. Job advertisements must be recent.
Note that if you choose to provide remuneration surveys, they would need to be
accompanied by a statement explaining how the surveys have been applied to determine
the base rate of pay and terms and conditions of employment that would be provided to an
equivalent Australian citizen or Australian permanent resident.
Also, note that if you choose to provide job vacancy advertisements, include:
● a number of examples that state salary and job description, and
● a submission explaining how each job advertisement is similar to the nominated
position.
If, however, you do have existing Australian employees performing equivalent work, then to
facilitate the processing of your application, provide evidence of the terms and conditions
offered to the equivalent workers, including the guaranteed annual earnings. Evidence may
include copies of:
● relevant Employment Contracts for Australian citizens or permanent residents
holding equivalent positions, and/or
● payslips for other employees (including previous employees) in your business in
equivalent positions, together with their timesheets.
If providing payslips include details of the equivalent workers' title and/or classification level
(personal details such as tax file numbers and other identifying information can be removed
to maintain privacy).
Genuine position
Overview
Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine.
This is considered an important regulatory criterion in terms of ensuring that the intention of the 457 programme is met - that is, it is used to address temporary skill shortages, for specific nominated occupations included in the CSOL, in circumstances where an Australian worker cannot be sourced. It was introduced to provide the Department with the ability to refuse a nomination if there were indicators that a semi-skilled position had been 'dressed up' to appear more skilled in order to facilitate a visa for a person.
To avoid doubt, 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.
For 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 lodged a nomination application for the occupation of Marketing Specialist (ANZSCO 225113), in assessing the nomination against 2.27(10)(f), whether the business has a genuine need for such an employee is irrelevant. For the nomination to be approved, 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.
Officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application in accordance with regulations 2.72(10)(e) unless there are doubts as to the veracity of these certifications or the intent behind the nomination.
Note: Regulation 2.72(10)(d) covers certifications for nominations lodged before 1 July 2010.
When is further assessment appropriate under policy
Further assessment may be appropriate in the three scenarios outlined immediately below; this is because in these scenarios, the nominated position may not actually exist, or while existing, may not be what has been presented in the nomination:
there is information that suggests that the nominated position may have been created to secure a migration outcome for the nominee and/or any of their family members - refer to Position created to secure a migration outcome or
the information provided in the nomination application suggests that the tasks of the position do not align, or at least substantially align, with the tasks of the nominated occupation as described in the ANZSCO - refer to Tasks of the position do not align with nominated occupation or
the position does not appear to be consistent with the nature of the business - refer to Position is not consistent with the nature of the business.
Important:
The sections referenced above provide more information on when these scenarios may apply under policy.
If after further investigation officers do have concerns that regulation 2.72(10)(f) may not be met, the guidelines outlined in Addressing concerns about genuine position should be considered.
Special arrangements are in place for assessing regulation 2.72(10)(f) for nomination applications lodged by accredited sponsors which are eligible for streamlined processing - refer to Assessment of genuine position criterion - Accredited sponsors.
Position created to secure a migration outcome
The 457 programme is designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to "create a position" - for example, in order 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.
Eight examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application are:
The nominee is a relative or personal associate of an officer of the sponsoring business. Officers should check departmental records for details of the sponsorship application and ascertain whether there is a direct or indirect relationship between the nominee and any owner/officer of the sponsoring business.
The nominee is a director or owner of the sponsoring business. If the business is a company and an ASIC historical extract has not been provided the business should be requested to provide one if necessary to ascertain whether the nominee is an owner or director or shareholder.
The nominee is currently in Australia and already working for the sponsor and/or the nominee's immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa.
The business has been in existence for a very short period of time (for example, the business was created in the last 3-6 months and appears to have just been "created" for the purpose of migration).
The proposed salary is significantly lower or significantly higher than industry standards.
The business has a relatively small turnover that could indicate that at the nominated salary provided it would be difficult to support the number of proposed employees at the business.
The business does not employ any or employs very few Australian employees.
There is evidence that the business may have received, or will receive, payment from the nominee for lodging the nomination. In this case, refer the case to 457 programme management - for more information refer to Certification regarding paying for visa sponsorship
Note: The above policy settings do not prevent individuals from sponsoring themselves (that is, "self-sponsorship") - however, in such cases 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).
Overview
Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine.
This is considered an important regulatory criterion in terms of ensuring that the intention of the 457 programme is met - that is, it is used to address temporary skill shortages, for specific nominated occupations included in the CSOL, in circumstances where an Australian worker cannot be sourced. It was introduced to provide the Department with the ability to refuse a nomination if there were indicators that a semi-skilled position had been 'dressed up' to appear more skilled in order to facilitate a visa for a person.
To avoid doubt, 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.
For 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 lodged a nomination application for the occupation of Marketing Specialist (ANZSCO 225113), in assessing the nomination against 2.27(10)(f), whether the business has a genuine need for such an employee is irrelevant. For the nomination to be approved, 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.
Officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application in accordance with regulations 2.72(10)(e) unless there are doubts as to the veracity of these certifications or the intent behind the nomination.
Note: Regulation 2.72(10)(d) covers certifications for nominations lodged before 1 July 2010.
When is further assessment appropriate under policy
Further assessment may be appropriate in the three scenarios outlined immediately below; this is because in these scenarios, the nominated position may not actually exist, or while existing, may not be what has been presented in the nomination:
there is information that suggests that the nominated position may have been created to secure a migration outcome for the nominee and/or any of their family members - refer to Position created to secure a migration outcome or
the information provided in the nomination application suggests that the tasks of the position do not align, or at least substantially align, with the tasks of the nominated occupation as described in the ANZSCO - refer to Tasks of the position do not align with nominated occupation or
the position does not appear to be consistent with the nature of the business - refer to Position is not consistent with the nature of the business.
Important:
The sections referenced above provide more information on when these scenarios may apply under policy.
If after further investigation officers do have concerns that regulation 2.72(10)(f) may not be met, the guidelines outlined in Addressing concerns about genuine position should be considered.
Special arrangements are in place for assessing regulation 2.72(10)(f) for nomination applications lodged by accredited sponsors which are eligible for streamlined processing - refer to Assessment of genuine position criterion - Accredited sponsors.
Position created to secure a migration outcome
The 457 programme is designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to "create a position" - for example, in order 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.
Eight examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application are:
The nominee is a relative or personal associate of an officer of the sponsoring business. Officers should check departmental records for details of the sponsorship application and ascertain whether there is a direct or indirect relationship between the nominee and any owner/officer of the sponsoring business.
The nominee is a director or owner of the sponsoring business. If the business is a company and an ASIC historical extract has not been provided the business should be requested to provide one if necessary to ascertain whether the nominee is an owner or director or shareholder.
The nominee is currently in Australia and already working for the sponsor and/or the nominee's immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa.
The business has been in existence for a very short period of time (for example, the business was created in the last 3-6 months and appears to have just been "created" for the purpose of migration).
The proposed salary is significantly lower or significantly higher than industry standards.
The business has a relatively small turnover that could indicate that at the nominated salary provided it would be difficult to support the number of proposed employees at the business.
The business does not employ any or employs very few Australian employees.
There is evidence that the business may have received, or will receive, payment from the nominee for lodging the nomination. In this case, refer the case to 457 programme management - for more information refer to Certification regarding paying for visa sponsorship
Note: The above policy settings do not prevent individuals from sponsoring themselves (that is, "self-sponsorship") - however, in such cases 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).
Refer to Addressing concerns about genuine position for more general advice regarding assessments under regulation 2.72(10)(f).
Tasks of the position do not align with nominated occupation
Overview
For a position associated with the nominated occupation to be genuine, the tasks of the nominated position must be equivalent, or substantially equivalent, to the tasks that ANZSCO associates with the nominated occupation. This is consistent with regulation 2.72(10)(e)(i), which requires the sponsor to certify that the tasks of the nominated position include a significant majority of the tasks of the nominated occupation in the ANZSCO.
If an officer has concern regarding the veracity of these certifications, a more detailed assessment of which tasks the nominee will be performing should thus be undertaken. The assessment should compare the tasks described in ANZSCO for the nominated occupation against the position description provided by the sponsor and any other relevant information provided in the nomination application form.
Such assessments are important in terms of ensuring that sponsoring businesses use the 457 programme as intended by Government rather than nominating positions that, despite their title, in reality do not align with an occupation, as it is described in the ANZSCO, that is included on the CSOL.
For example, just calling a front line customer service position a Customer Service Manager (ANZSCO 149212) or copying the relevant task list from ANZSCO into the nomination application does not mean that the Department will accept that the tasks of a Customer Service Manager are being performed. As described in the ANZSCO, a Customer Services Manager is expected to undertake high level tasks such as developing and reviewing customer service policies and programs, and planning and implementing after-sales services.
Assessment approach
In making this assessment, visa officers should consider not just the ‘list of duties’ provided in the application for, but other supporting evidence provided by the applicant – that is, the ‘business context’ in which the nominated position will be operating. Four examples of relevant factors are:
the location where they will be working
their position in terms of the organisational structure of the business
the proposed tasks that they will be performing and
the tasks performed by current employees.
That is, officers should consider whether the person will actually be performing the stated tasks when taken in the context of where the position will be based and will not primarily be undertaking duties at a skill level lower than the skill level of the nominated occupation.
While it is not the Department’s role to make a commercial decision as to whether it makes good business sense to hire a particular worker or pay them a particular salary, the business context is relevant here.
Tasks of the position do not align with nominated occupation
Overview
For a position associated with the nominated occupation to be genuine, the tasks of the nominated position must be equivalent, or substantially equivalent, to the tasks that ANZSCO associates with the nominated occupation. This is consistent with regulation 2.72(10)(e)(i), which requires the sponsor to certify that the tasks of the nominated position include a significant majority of the tasks of the nominated occupation in the ANZSCO.
If an officer has concern regarding the veracity of these certifications, a more detailed assessment of which tasks the nominee will be performing should thus be undertaken. The assessment should compare the tasks described in ANZSCO for the nominated occupation against the position description provided by the sponsor and any other relevant information provided in the nomination application form.
Such assessments are important in terms of ensuring that sponsoring businesses use the 457 programme as intended by Government rather than nominating positions that, despite their title, in reality do not align with an occupation, as it is described in the ANZSCO, that is included on the CSOL.
For example, just calling a front line customer service position a Customer Service Manager (ANZSCO 149212) or copying the relevant task list from ANZSCO into the nomination application does not mean that the Department will accept that the tasks of a Customer Service Manager are being performed. As described in the ANZSCO, a Customer Services Manager is expected to undertake high level tasks such as developing and reviewing customer service policies and programs, and planning and implementing after-sales services.
Assessment approach
In making this assessment, visa officers should consider not just the ‘list of duties’ provided in the application for, but other supporting evidence provided by the applicant – that is, the ‘business context’ in which the nominated position will be operating. Four examples of relevant factors are:
the location where they will be working
their position in terms of the organisational structure of the business
the proposed tasks that they will be performing and
the tasks performed by current employees.
That is, officers should consider whether the person will actually be performing the stated tasks when taken in the context of where the position will be based and will not primarily be undertaking duties at a skill level lower than the skill level of the nominated occupation.
While it is not the Department’s role to make a commercial decision as to whether it makes good business sense to hire a particular worker or pay them a particular salary, the business context is relevant here.
For example:
If a business operating a car wash with only two employees nominates a Corporate General Manager (ANZSCO 111211), this is likely to raise significant concerns as to whether the nominee will actually be performing the duties of a Corporate General Manager. This is because even if tasks listed in the job description equate with those outlined in ANZSCO and the business can financially support a Corporate General Manager and pay them the market salary rate, it is unlikely that the nominee would be, as outlined in ANZSCO, ‘planning, directing controlling and reviewing the day-to-day operations and major functions of a commercial, industrial government or defence organisation’. It would appear that the nominee would be simply unable to perform a significant majority of the occupation’s tasks listed in ANZSCO due to the business context of the nominated position.
On the other hand, if a business operates a large number of car wash outlets around Australia, and the position is to be based in the head office of the business, a Corporate General Manager position would be unlikely to raise concerns around genuineness as it would be possible for the nominee to undertake the occupation’s tasks.
If, taking into account all information provided (including the business context of the position) and not just the list of proposed tasks provided, the visa officer has assessed the tasks of the proposed position but is not satisfied that the tasks at least substantially align with those of the nominated occupation as described in ANZSCO:
if the tasks align with another ANZSCO position that is not on the CSOL at all, officers should assess the case against regulation 2.72(10)(aa) – refer to Occupation specified in the latest legislative instrument:
this may be relevant if, for example, the tasks of the nominated position align with a non-managerial ANZSCO occupation that is not on the CSOL, or they align with a managerial occupation in the same ANZSCO Unit Group but that is not on the CSOL
or
if they align with another ANZSCO position that is on the CSOL, officers should proceed to make an assessment against regulation 2.27(10)(f).
Important:
The above advice does not mean that the nominee cannot complete tasks that are not described in the ANZSCO for the nominated occupation – particularly in smaller businesses where the nominee’s proposed role may cover a broader range of tasks than in a larger business, which may have sufficient capacity to allow staff to focus on their specialised role only. To meet 457 programme requirements, it is, however, expected that most of the nominee’s time will be spent performing the tasks of the nominated occupation and only limited or ad hoc time would be spent doing other tasks (particularly if these are tasks that could be performed by a non-skilled employee).
If an appropriate occupation cannot be found in the ANZSCO dictionary or the occupation is not listed on the CSOL, then the standard 457 programme is not appropriate. In this situation, the business may consider seeking access to 457 visas under a formal labour agreement, which can cater for skilled and semi-skilled positions in circumstances where there is a demonstrated lack of available employees in the local labour market. For such arrangements to be progressed, information needs to be provided to demonstrate that there is an identifiable skills shortage in the relevant industry and the reasons why, as well as the efforts made to train Australia citizens and permanent residents in the required occupation.
For more general advice regarding assessments under regulation 2.72(10)(f) refer to Addressing concerns about genuine position. For advice on particular occupations, refer to Advice on certain nominated occupations.
Position is not consistent with the nature of the business
If the nominated occupation appears inconsistent with the nature of the sponsoring business, this is another situation in which the nominated position may not be what it is presented as being in the nomination application form and hence, may raise concerns around genuineness.
Officers must, however, be careful when assessing cases where there are concerns in this area, noting the scope of the regulatory criterion and that it is not their role to assess whether the business has a genuine need for the nominated employee.
Under policy, concerns should be raised on this basis only if there appears to be a significant inconsistency between the nominated position and the nature of the sponsoring business, and hence, the position, if it exists, is unlikely to be what it purports to be. This may include situations where:
the scope of the activities of the business do not encompass the duties of the nominated occupation and hence, it appears unlikely that the nominee will actually be undertaking the tasks specified in the application:
for example, nominations of a Landscape Gardener (ANZSCO 362213) or a Multimedia Specialist (ANZSCO 261211) by a physiotherapy practice would not, on face value, be consistent with the nature of the business
such seemingly incongruous nominations should, however, be investigated more thoroughly to determine whether there is a valid explanation, with additional explanatory information and evidence sought from the sponsor. Such a scenario could be valid if, for example, a regional business has identified a business opportunity and is seeking to diversify by offering non-complementary services
or
the size or turn-over of the business would not appear to support such a position.
For example, a small restaurant with an annual turnover of AUD 300 000 is unlikely to be able to afford to nominate a cook on an annual salary of AUD 55 000, if they already have four cooks on staff at the same salary.
If a business operating a car wash with only two employees nominates a Corporate General Manager (ANZSCO 111211), this is likely to raise significant concerns as to whether the nominee will actually be performing the duties of a Corporate General Manager. This is because even if tasks listed in the job description equate with those outlined in ANZSCO and the business can financially support a Corporate General Manager and pay them the market salary rate, it is unlikely that the nominee would be, as outlined in ANZSCO, ‘planning, directing controlling and reviewing the day-to-day operations and major functions of a commercial, industrial government or defence organisation’. It would appear that the nominee would be simply unable to perform a significant majority of the occupation’s tasks listed in ANZSCO due to the business context of the nominated position.
On the other hand, if a business operates a large number of car wash outlets around Australia, and the position is to be based in the head office of the business, a Corporate General Manager position would be unlikely to raise concerns around genuineness as it would be possible for the nominee to undertake the occupation’s tasks.
If, taking into account all information provided (including the business context of the position) and not just the list of proposed tasks provided, the visa officer has assessed the tasks of the proposed position but is not satisfied that the tasks at least substantially align with those of the nominated occupation as described in ANZSCO:
if the tasks align with another ANZSCO position that is not on the CSOL at all, officers should assess the case against regulation 2.72(10)(aa) – refer to Occupation specified in the latest legislative instrument:
this may be relevant if, for example, the tasks of the nominated position align with a non-managerial ANZSCO occupation that is not on the CSOL, or they align with a managerial occupation in the same ANZSCO Unit Group but that is not on the CSOL
or
if they align with another ANZSCO position that is on the CSOL, officers should proceed to make an assessment against regulation 2.27(10)(f).
Important:
The above advice does not mean that the nominee cannot complete tasks that are not described in the ANZSCO for the nominated occupation – particularly in smaller businesses where the nominee’s proposed role may cover a broader range of tasks than in a larger business, which may have sufficient capacity to allow staff to focus on their specialised role only. To meet 457 programme requirements, it is, however, expected that most of the nominee’s time will be spent performing the tasks of the nominated occupation and only limited or ad hoc time would be spent doing other tasks (particularly if these are tasks that could be performed by a non-skilled employee).
If an appropriate occupation cannot be found in the ANZSCO dictionary or the occupation is not listed on the CSOL, then the standard 457 programme is not appropriate. In this situation, the business may consider seeking access to 457 visas under a formal labour agreement, which can cater for skilled and semi-skilled positions in circumstances where there is a demonstrated lack of available employees in the local labour market. For such arrangements to be progressed, information needs to be provided to demonstrate that there is an identifiable skills shortage in the relevant industry and the reasons why, as well as the efforts made to train Australia citizens and permanent residents in the required occupation.
For more general advice regarding assessments under regulation 2.72(10)(f) refer to Addressing concerns about genuine position. For advice on particular occupations, refer to Advice on certain nominated occupations.
Position is not consistent with the nature of the business
If the nominated occupation appears inconsistent with the nature of the sponsoring business, this is another situation in which the nominated position may not be what it is presented as being in the nomination application form and hence, may raise concerns around genuineness.
Officers must, however, be careful when assessing cases where there are concerns in this area, noting the scope of the regulatory criterion and that it is not their role to assess whether the business has a genuine need for the nominated employee.
Under policy, concerns should be raised on this basis only if there appears to be a significant inconsistency between the nominated position and the nature of the sponsoring business, and hence, the position, if it exists, is unlikely to be what it purports to be. This may include situations where:
the scope of the activities of the business do not encompass the duties of the nominated occupation and hence, it appears unlikely that the nominee will actually be undertaking the tasks specified in the application:
for example, nominations of a Landscape Gardener (ANZSCO 362213) or a Multimedia Specialist (ANZSCO 261211) by a physiotherapy practice would not, on face value, be consistent with the nature of the business
such seemingly incongruous nominations should, however, be investigated more thoroughly to determine whether there is a valid explanation, with additional explanatory information and evidence sought from the sponsor. Such a scenario could be valid if, for example, a regional business has identified a business opportunity and is seeking to diversify by offering non-complementary services
or
the size or turn-over of the business would not appear to support such a position.
For example, a small restaurant with an annual turnover of AUD 300 000 is unlikely to be able to afford to nominate a cook on an annual salary of AUD 55 000, if they already have four cooks on staff at the same salary.
Note:
Officers are reminded that they are assessing here whether the position associated with the nominated occupation is genuine. Consequently, if for example, a small business has nominated a Customer Service Manager (ANZSCO 149212) but already has several other Australian workers or other 457 visa holders working for their company as a Customer Service Manager, this may be a factor suggesting that further investigation is required. This is because it may raise concerns that the nominee may not actually be completing the tasks of the nominated occupation – with, for example, insufficient work at the level outlined in the ANZSCO task description available in the organisation, given the employees already hired. However, this in itself is not sufficient to suggest that the position associated with the nominated occupation is not genuine. In this situation, a relevant consideration is whether the nominee will be undertaking managerial level tasks, as opposed to what sort of manager they are – refer to Tasks of the position do not align with nominated occupation.
If an officer has concerns that the turn-over of small business does not warrant the nominated position – with the salary level appearing inconsistent with the financial turnover of the business and the salary level of other employees, it is suggested that they consult the ATO website to determine whether the upper end of the ATO wages ratio would be exceeded if the business sought to take on this additional position – refer to the ATO webpage Small business benchmarks methodology and ratio calculations.
If a significant inconsistency between the nominated position and the nature of the sponsoring business has not been identified as outlined above (for example, the nominated occupation appears to align with the nature of the business and its turnover supports the hiring of multiple employees), officers with residual concerns regarding the intent behind the nomination should instead consider:
whether the Tasks of the position do not align with nominated occupation or
whether the Position created to secure a migration outcome
- if these situations do not , under policy, apply, regulation 2.72(10)(f) can be considered met.
Important:
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 457 programme through the creation of non-genuine positions.
Case officers who notice a trend of larger companies appointing multiple individuals in the same nominated position and have residual concerns regarding potential over-use of the 457 programme at the expense of Australian workers should escalate such matters to their local manager so that these concerns can be discussed with the business or, if the concerns are significant, a referral to the Sponsor Monitoring Unit can be made.
For more general advice regarding assessments under regulation 2.72(10)(f), refer to Addressing concerns about genuine position.
Addressing concerns about genuine position
Further guidance
To facilitate consistency in decision-making and ensure the policy settings are being implemented as intended, it is important that officers consider the additional guidance provided immediately below when assessing a nomination application against regulation 2.72(10)(f), taking into account information provided in the individual nomination application, as well as any relevant supporting documentation.
Acknowledging that regulation 2.72(10)(f) is subjective in nature, under policy, officers should consider the following five factors, which adds weight to an assessment that the position associated with the nominated occupation is genuine:
There is evidence relating to a previous occupant employed in the position – for example, there was a previous 457 holder in the position or the business has indicated that an Australian was previously holding this position but has since left.
There is evidence that the position has been advertised and filled through a transparent recruitment process.
The position is a highly skilled position with specific tasks outlined in ANZSCO (as opposed to a generalist ill-defined role).
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.
Factors supporting ‘genuine position’
Evidence that can be useful to support such an assessment is provided in the Border website’s Nomination document checklist (Temporary Work (Skill) Visa (Subclass 457) Document Checklist for Visa Applicants) and includes:
a breakdown of the organisational structure (organisation chart) to indicate how the position fits into the business activity
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)
evidence that the position has existed and been previously occupied, but has become vacant through attrition or is currently occupied by a temporary resident
increase in business activity over previous months or years (for example, new contracts won, increased demand) requiring persons in the nominated occupation
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
evidence as to what percentage of the sponsor’s workforce are Australian citizens or permanent residents and
overtime work, or increases in overtime work, for employees currently in the nominated occupation.
Note:
Additional advice for clients and agents on useful evidence in this space is on the Border website’s Nomination document checklist.
If possible, independently verifiable evidence should be provided (for example, copies of contracts, purchase orders from third parties) as this will be given the greatest weight by visa decision-makers.
Under policy, ‘genuineness submissions’ containing information specific to the business that are written by the sponsoring business should be given reasonable weight.
“Genuineness submissions” that contain generic template information (for example, use a template provided by an outsourced company) or that rely heavily on speculative or non-specific reports or media articles should be given little weight. Such information is usually not tailored to individual companies and hence may not accurately reflect the current situation in the business.
Factors not supporting ‘genuine position’
Under policy, eleven factors that might add weight to an assessment that the position associated with the nominated occupation is not genuine are:
Officers are reminded that they are assessing here whether the position associated with the nominated occupation is genuine. Consequently, if for example, a small business has nominated a Customer Service Manager (ANZSCO 149212) but already has several other Australian workers or other 457 visa holders working for their company as a Customer Service Manager, this may be a factor suggesting that further investigation is required. This is because it may raise concerns that the nominee may not actually be completing the tasks of the nominated occupation – with, for example, insufficient work at the level outlined in the ANZSCO task description available in the organisation, given the employees already hired. However, this in itself is not sufficient to suggest that the position associated with the nominated occupation is not genuine. In this situation, a relevant consideration is whether the nominee will be undertaking managerial level tasks, as opposed to what sort of manager they are – refer to Tasks of the position do not align with nominated occupation.
If an officer has concerns that the turn-over of small business does not warrant the nominated position – with the salary level appearing inconsistent with the financial turnover of the business and the salary level of other employees, it is suggested that they consult the ATO website to determine whether the upper end of the ATO wages ratio would be exceeded if the business sought to take on this additional position – refer to the ATO webpage Small business benchmarks methodology and ratio calculations.
If a significant inconsistency between the nominated position and the nature of the sponsoring business has not been identified as outlined above (for example, the nominated occupation appears to align with the nature of the business and its turnover supports the hiring of multiple employees), officers with residual concerns regarding the intent behind the nomination should instead consider:
whether the Tasks of the position do not align with nominated occupation or
whether the Position created to secure a migration outcome
- if these situations do not , under policy, apply, regulation 2.72(10)(f) can be considered met.
Important:
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 457 programme through the creation of non-genuine positions.
Case officers who notice a trend of larger companies appointing multiple individuals in the same nominated position and have residual concerns regarding potential over-use of the 457 programme at the expense of Australian workers should escalate such matters to their local manager so that these concerns can be discussed with the business or, if the concerns are significant, a referral to the Sponsor Monitoring Unit can be made.
For more general advice regarding assessments under regulation 2.72(10)(f), refer to Addressing concerns about genuine position.
Addressing concerns about genuine position
Further guidance
To facilitate consistency in decision-making and ensure the policy settings are being implemented as intended, it is important that officers consider the additional guidance provided immediately below when assessing a nomination application against regulation 2.72(10)(f), taking into account information provided in the individual nomination application, as well as any relevant supporting documentation.
Acknowledging that regulation 2.72(10)(f) is subjective in nature, under policy, officers should consider the following five factors, which adds weight to an assessment that the position associated with the nominated occupation is genuine:
There is evidence relating to a previous occupant employed in the position – for example, there was a previous 457 holder in the position or the business has indicated that an Australian was previously holding this position but has since left.
There is evidence that the position has been advertised and filled through a transparent recruitment process.
The position is a highly skilled position with specific tasks outlined in ANZSCO (as opposed to a generalist ill-defined role).
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.
Factors supporting ‘genuine position’
Evidence that can be useful to support such an assessment is provided in the Border website’s Nomination document checklist (Temporary Work (Skill) Visa (Subclass 457) Document Checklist for Visa Applicants) and includes:
a breakdown of the organisational structure (organisation chart) to indicate how the position fits into the business activity
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)
evidence that the position has existed and been previously occupied, but has become vacant through attrition or is currently occupied by a temporary resident
increase in business activity over previous months or years (for example, new contracts won, increased demand) requiring persons in the nominated occupation
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
evidence as to what percentage of the sponsor’s workforce are Australian citizens or permanent residents and
overtime work, or increases in overtime work, for employees currently in the nominated occupation.
Note:
Additional advice for clients and agents on useful evidence in this space is on the Border website’s Nomination document checklist.
If possible, independently verifiable evidence should be provided (for example, copies of contracts, purchase orders from third parties) as this will be given the greatest weight by visa decision-makers.
Under policy, ‘genuineness submissions’ containing information specific to the business that are written by the sponsoring business should be given reasonable weight.
“Genuineness submissions” that contain generic template information (for example, use a template provided by an outsourced company) or that rely heavily on speculative or non-specific reports or media articles should be given little weight. Such information is usually not tailored to individual companies and hence may not accurately reflect the current situation in the business.
Factors not supporting ‘genuine position’
Under policy, eleven factors that might add weight to an assessment that the position associated with the nominated occupation is not genuine are:
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 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 nominated occupation is one that:
the ANZSCO dictionary lists only very broad, generic tasks (for example, Marketing Specialist, Program or Project Administrator, Specialist Manager NEC) and/or
the Department has previously identified a trend of the sponsors using the occupation in an attempt to utilise the 457 programme inappropriately - that is, to accommodate semi-skilled workers, or undermine other visa programmes.
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.
The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description.
The sponsor seeks to nominate a General Manager and:
is a company involved in trading activity (imports/exports) with no other employees except for its directors or
is a business whose main source of revenue is rental income from domestic properties it owns (for example, renting rooms to overseas students).
Note: Under policy, nominations lodged for certain occupations should also be carefully scrutinised to determine whether the position associated with the nominated occupation is not genuine. These are nominated occupations in which the Department has previously identified sponsors attempting to utilise the 457 programme inappropriately - that is, to accommodate semi-skilled workers, or to circumvent/avoid having to use other visa programmes. For advice on particular occupations, refer to Advice on certain nominated occupations.
Important:
This does not mean that nominations in such circumstances cannot be approved and are not acceptable within the 457 programme. Nominations that meet the regulatory criteria must be approved.
If concerns are raised pre or post finalisation of a nomination application, it is noted that a referral can be made to the Sponsor Monitoring Unit who can visit the business, check the nature of the tasks being performed by the visa holder, and ensure that the sponsor is complying with their obligations under the 457 programme.
These posts might seem somewhat lengthy, but if you still have not got the message about DIY 457 in the current environment - Have fun.
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 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 nominated occupation is one that:
the ANZSCO dictionary lists only very broad, generic tasks (for example, Marketing Specialist, Program or Project Administrator, Specialist Manager NEC) and/or
the Department has previously identified a trend of the sponsors using the occupation in an attempt to utilise the 457 programme inappropriately - that is, to accommodate semi-skilled workers, or undermine other visa programmes.
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.
The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description.
The sponsor seeks to nominate a General Manager and:
is a company involved in trading activity (imports/exports) with no other employees except for its directors or
is a business whose main source of revenue is rental income from domestic properties it owns (for example, renting rooms to overseas students).
Note: Under policy, nominations lodged for certain occupations should also be carefully scrutinised to determine whether the position associated with the nominated occupation is not genuine. These are nominated occupations in which the Department has previously identified sponsors attempting to utilise the 457 programme inappropriately - that is, to accommodate semi-skilled workers, or to circumvent/avoid having to use other visa programmes. For advice on particular occupations, refer to Advice on certain nominated occupations.
Important:
This does not mean that nominations in such circumstances cannot be approved and are not acceptable within the 457 programme. Nominations that meet the regulatory criteria must be approved.
If concerns are raised pre or post finalisation of a nomination application, it is noted that a referral can be made to the Sponsor Monitoring Unit who can visit the business, check the nature of the tasks being performed by the visa holder, and ensure that the sponsor is complying with their obligations under the 457 programme.
These posts might seem somewhat lengthy, but if you still have not got the message about DIY 457 in the current environment - Have fun.
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That's fantastic information! are there people that write these types of supporting documents for migration?
I assume the process is you supply all applicable evidence to a Registered Migration Agent (such as the poster Westly) they compile a application with a very detailed submission letter that covers every part of the requirements, and within the guidelines of the DIBP.
That is only a small part of it, selected to address the specific query.That's fantastic information! are there people that write these types of supporting documents for migration?
whether the person dont have equivalent work experience also can apply ?
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whether the person dont have equivalent work experience also can apply ?
Is it possible to apply without going through a migration agent, I know using one is costly. And it is not guaranteedI assume the process is you supply all applicable evidence to a Registered Migration Agent (such as the poster Westly) they compile a application with a very detailed submission letter that covers every part of the requirements, and within the guidelines of the DIBP.
It seems almost a fail with a DIY, why don't you ask (think was) Westly for a quote?Is it possible to apply without going through a migration agent, I know using one is costly. And it is not guaranteed
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