457 Visas – Is The Position Genuine?

The contents of this article are correct as at 15 January 2016

Within the last year the Department has been closely scrutinising the genuine need for nominated occupations under the subclass 457 scheme. In particular, focus has been on the following occupations:

Cook
Chef
Program or Project Administrator
Marketing Specialist
Customer Service Manager
Specialist Manager

Examples of cases before the Tribunal, show that the Department refused 457 nominations in the following cases:

A cook or a chef in a business that primarily operates with counter service and has limited freshly prepared dining options
A program or project administrator in a business with less than 20 employees and a turnover of less than $2,000,000
A marketing specialist in a small business (less than 10 employees) that has been operating for less than 2 years and has a turnover of less than $1,000,000
A customer service manager in a small organisation (less than 30 employees) with limited supervisory duties and a turnover of less than $5,000,000
A specialist manager in an organisation which provides niche services and has less than 20 employees

Generally speaking, in assessing whether a position is genuine, the Department will have regard to whether:

The position has not been created to secure a migration outcome for the nominee and / or any of their family members
The tasks of the position align with the tasks of the nominated occupation as described in the ANZSCO
The position is consistent with the nature, scale and activities of the business
The owner of the business is seeking to sponsor and nominate themselves

The issue of “genuine position” has become contentious under the 457 scheme and the Department usually requires significant amounts of evidence to be satisfied that the criterion has been met.

Each case should be carefully analysed and assessed.

If you are a business or organisation seeking to sponsor a person under the 457 scheme and have questions concerning whether the intended position is likely to be assessed as genuine by the Department, please click this link to contact Visa Lawyers Australia.