"Not a Genuine Position"

[DanFinchamCooke]

Hi agents!

 

I was recommended to post in here for your advice. I have a question I was hoping someone could answer.

 

I'm currently on a bridging visa for a 457 but it might be rejected as they believe it is "Not a Genuine Position". If it gets rejected because of this I was thinking of applying for a 189 visa.

 

Now if I do apply for a 189 visa, will the previous 457 rejection because of the "Not a Genuine Position" concern get flagged by immigration? Which would mean any points gained for this experience being disregarded, and the 189 visa application being rejected?

 

 

Or, as long as I get a letter from my employer confirming I was employed by the company in that position, immigration will consider this and what I submit for the 189 application?

 

I'm in a pickle as I have not idea what to do!

 

Thanks in advance

 

Dan

 

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[Mark Northam]

Hi Dan -

 

Refusal for "genuine position" generally refers to a 457 nomination (or sometimes 186/187 nomination) and is about the business and the position, not about you. However if the 457 nomination is refused, you will have the choice of either having your 457 visa refused, or withdrawing your 457 application. Once your 457 app is refused (if you choose to allow that vs withdrawal), you can lodge an appeal of that 457 refusal and the business can lodge an appeal of the nomination refusal, and both together will generally be heard by the AAT Tribunal. However once your 457 app is refused, you would be barred by section 48 of the Migration Act from making a further onshore application on this visit to Australia - this would prevent you from making an onshore 189 application.

 

Re: points for employment, success of that or not would depend on looking at the actual tasks/responsibilities of your paid work vs the ANZSCO definitions for that nomination. However, having a 457 refusal based on genuine position would not necessarily cause a problem for work previously done in that position for that employer - the key of the genuine position legislation is whether or not the business has a need for a full-time xxxx (your occupation), not whether or not the work you were doing as you worked in that position fully met the ANZSCO requirements. That being said, I would expect DIBP to take a close look at any work done in a position that was later deemed a non-genuine position - one way you might hedge against any problems would be to have your skills assessor assess the work you did in that position - normally DIBP defers to the opinion of a skills assessor in determining whether work experience is relevant to your occupation.

 

Hope this helps -

 

Best,

 

Mark Northam

[DanFinchamCooke]

Hi Mark.

 

Thanks for the detailed reply.

 

I think immigrations has concern is that the company do not need a full-time employee in my position. My position is and Online Marketing Specialist, so it's qualifies under the Marketing Specialist category on ANZCO.

 

If I were to withdraw my 457 application, would that be flagged the same way a rejected application would be, should I look to apply for an offshore 189 visa? Or does a withdrawal not get highlighted as much?

 

I can get the extra points I need to qualify for the 189 visa from my current position under the "skill on COSL" and "length of employment" criteria.

 

Thanks.

 

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[wrussell]

From a RMA:

 

DIBP are refusing 457 SBS, nominations and 457s for

any reason

The Department of Immigration and Border Protection (DIBP) are doing their utmost best to

refuse any component of the 457 application process, but most of all, 457 nominations.

Example of a large supermarket refusal

A large supermarket with more than 20 staff in a regional area is trying to sponsor a marketing

specialist. The DIBP have refused the application on the basis that the salary offered is too low,

at $55,000. However the market salary rates show $50K-$60K and TSMIT is $53,000. And yet

the DIBP are still saying that $55,000 is too low and have refused the application without giving a

chance for the sponsor to increase the salary. The sponsor is more than happy to increase the

salary to whatever the DIBP want it to be as they need the person badly. See the end of this

article for the interesting salary offered to ACS ICT case assessors in Sydney city. Proceed to

roll your eyes.

Refusal on 'Genuineness' Criteria

Now let's look at the 'genuineness' criteria. The DIBP have for a while 'deemed' that a position is

not necessary for the operation of a business and is hence, not a genuine position. Don't you

just love the word 'deem' in the context of a case officer and their decisions?

Take the example case of Mr S. Mr S is a man who has given up a career in his home country

and moved to Australia on a 457 visa in around 2009. Mr S qualified for permanent residency

(PR) to Australia but the business Mr S was sponsored by was taken over by another company

with a different ABN. The PR application could therefore not be lodged. Mr S originally started

on his 457 as a project and programme administrator, but now to obtain a new 457 visa for the

same job at the second company, he needs to undergo a skills assessment for the position of

project and programme administrator (the position he currently holds and has held since

2009). Mr S holds a bachelors degree in nursing from Indonesia.

Refusal due to PAMS conflicting with ANZSCO

On closer inspection, there is a discrepancy between the skills assessment requirement

(qualification plus work experience) and ANZSCO requirement. ANZSCO states that only work

experience is required, and not necessarily a qualification.

In the case of Mr S, the DIBP case officer inflexibly applied PAMS. Whoever created this rule in

PAMs is probably referred to as the 'PAM GOD' within the DIBP, such is the size of the brick wall

for applicants and their sponsors. Registered Migration Agents are getting to the point where

they just tell clients that applying is like gambling and say, 'do you want to go ahead or not?'

Refusal based on 'Training Receipts'

In relation to the Standard Business Sponsorship (SBS) it is interesting that refusals are coming

through saying there is no evidence that the training receipt provided has been used to train

Australians, even though the company structure chart shows that all employees are Australian

citizens. This was previously not happening.

Refusal because a 'Small Business'

It seems that DIBP are prone to refusing small businesses. The DIBP case officers automatically

assume that the small business owner should do the job themselves and do not need the

employee or any managerial position. Typical refusals for small businesses are in the

occupations of Customer Service Manager, Facilities Manager, Retail Buyer and other

Managerial positions. DIBP case officers, with all their business management experience in the

real world (cough) assume that the business owners can carry out these functions on their own,

and hence refuse the applications.

Think about the feeling of a small business owner if they are forced to do the work themselves

instead of expanding the business do do other upper-level development on their business. All

because a DIBP case officer says they should be able to. Case officers are now deciding for

small business owners who and what they need to run their businesses, stifling business owners

and preventing optimum growth.

Refusals since the DIBP's name change to 'Border Force'

Agents are reporting that since the DIBP changed it's name to Border Force, their refusal rates

are up as high as 80%. Migration Agents, do not lose heart. There is now a pattern of refusals

that cannot be ignored. This blog post serves as a line in the sand and trumpet sound that

something is going on in there. The legislation remains the same but the way the DIBP handle

and decide assessments is at a completely different level now.

Refusals because of a disjointed assessment process

The process is now disjointed and haphazard within the DIBP.

First, 457 applications now go through initial division will have one case officer look at it and send

a request for further information whenever they are not satisfied. The requested documents and

extra information are then attached online by the RMA.

The application then moves back to the queue and is then allocated to a different case officer

who will then make a decision on the information in front of them. The trend now is that the

second case officer makes the decision without asking for any additional information.

The following is a typical example of the disjointed assessment process:

The first case officer asks for extra documents A C and F.

The second case officer refuses the application because B, D and E do not satisfy them.

The fact that the first case officer did not ask for B, D and E along with their request for A, C and

F deprives the sponsor / applicant of the opportunity to provide what is actually needed. The

second case officer requests nothing and therefore deprives the sponsor / applicant of chance to

have their application/s fairly assessed.

I call this 'case officers working in silos'.

DIBP case officers refusing cases like street rangers fine cars

DIBP are now acting like street rangers who must book and fine a target number of cars per

day. The more you fine the more rewarded you are.

The greater scrutiny of 457 visa applications is leading to a fall in grants. Red tape has gone

mad, with 457 applications even voided because of typos and spelling errors.

DIBP decisions are hypocritical

It is interesting to note that a full time 'Case Assessor - ICT skills assessment' position at the

Australian Computer Society in Sydney city (non-regional) is being advertised on SEEK.com at

$45,000. If that is not a kick in the teeth then what is? I rest my case.

[Mark Northam]

Excellent post, Westly. The carnage in 457 refusals over the last 6-12 months is clear and unmistakable - I've seen several of the circumstances described in your post. I've been fortunate enough to be able to successfully turn some of these around via AAT review, where the apparent prejudice against marketing positions, smaller businesses, etc seems to be less, perhaps due to the difference in training and accountability between a case officer and an AAT Member, but it's a huge cost and time imposition on small businesses to have to go through the visa application AND review process.

[DanFinchamCooke]

Thanks guys!

 

Mark, if my visa gets rejected I would be interested to get your opinion and help going through an AAT review. I know it will cost , but if there is a good chance to get it overturned it will definitely be worth it!

 

Thanks

 

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