There are subclass 457 changes in operation from July 1st. We take a look at whether the clarifications on the genuineness requirement help or hinder the application process.

The ‘Genuineness Test’ was introduced in July 2013 as an additional requirement in applying for the Temporary Work (Skilled) Visa (Subclass 457). It requires employers to be able to demonstrate to the Department that

  • There is a position that exists within the business that requires the skills of the migrating employee and
  • That the Australian Labor Market has been adequately tested to ensure that there are no suitably qualified Australian employees

The test was introduced as a measure against situations where a nominated position was

  • created in order to secure a migration outcome and
  • the need for a skilled migrant was not genuine.

However, the highly subjective nature of the test has led to huge uncertainty about the likelihood of success of a 457 nomination application.

The July 1 Changes are focused on clarifying the requirements of the ‘Genuineness test’.

  1. Genuineness is not an assessment of whether the position is needed

    The new guidelines clarify that genuineness relates to whether the position associated with the nomination is a position that exists and is what it appears to be.

    Officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application. However, further assessment may be necessary if there are doubts about the truth of the certifications or the intent behind the nominations.

  2. The position does not appear to be consistent with the nature of the business.

    • The size of the business does not appear to support the position such as when there is doubt that there is ability for the business to support an additional hiring
  3. When will further assessments be necessary?

    • There is information that suggests that the nominated position may have been created to secure a migration outcome for the nominee
    • The information provided in the nomination application, considered in the context of the sponsor’s business, 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 Australian and New Zealand Standard Classification of Occupations, or
    • The position does not appear to be consistent with the nature of the business.
    • The size of the business does not appear to support the position such as when there is doubt that there is ability for the business to support an additional hiring
  4. Factors that will add weight to assessment of a position as genuine

    • A position has recently been occupied by a 457 visa holder or Australian
    • There has been a transparent recruitment process
    • The position is highly skills with specific tasks outlined in the ANZSCO
    • The position fits clearly with the scope and nature of the business
    • There is evidence that the business requires new positions
  5. Factors that will not support an assessment of genuineness

    • The business is newly established (operating for up to 3-6 months) or relatively small in size and has a turnover that would not appear to support the salary of the nominated position
    • It is not clear or evident that the significant majority of the tasks of the position align with those outlines in the ANZSCO at the appropriate level
    • Where minimal documentary evidence is provided in support of a nomination application

The further clarifications on the genuineness test will assist in better assessment of a company’s ability to sponsor a nominee and the position that is being nominate.

However, it does not address the inherent subjectivity of the genuineness test. It remains to be seen whether the changes will result in more consistent determinations in the application process and a greater certainty for businesses sponsoring workers on the subclass 457 visa.

We will be covering more subclass 457 changes in the next post, stay tuned!

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. Please contact Verity Law for further advice.