The ‘genuineness’ criterion for 457 Visa applications is seen to be a topic of debate in the migration industry because it allows for subjective judgement by the Department and Tribunal to determine whether there is a genuine need to employ 457 Visa holders for a nominated position.
In our own experience, there have been cases where the Department of Immigration and Border Protection’s (DIBP) new changes to the ‘genuineness’ policy guidelines have made it more difficult to prove an application meets the ‘genuineness’ requirements and at times it can seem like the Department has made a subjective assessment.
Recently, migration industry group The Australian Migration Alliance raised debate on the issue of assessing ‘genuineness’, drawing attention to the Australian migration Federal court decision Mahesan v Minister for Immigration & Anor (2016) FCCA 1289 handed down on 30 May 2016.
The Australian Migration Alliance raised concerns on whether assumptions about a business’ needs are a factor in deciding whether a 457 visa application meets the ‘genuineness’ requirements. According to Departmental Policy, ‘genuineness’ is not determined by whether the position is needed by a business, but instead whether the position exists and whether the duties are what they claim to be.
Cases like this one highlighted by the Australian Migration Alliance show that the factors for determining ‘genuineness’ can get a little blurred, which is something we also see as an issue.
A franchisee of a health food store applied for a 457 Visa under the nominated occupation ‘naturopath’ at the health food store she managed. It was claimed that the work undertaken would involve initial consultations with clients to examine the client’s health and lifestyle and identify the root causes of their health concerns.
A Departmental officer found evidence suggesting that “staff hired by the sponsor are sales consultants who are provided with in-house training and does not establish a need for a naturopath as part of their team”.
The Tribunal affirmed the refusal of the visa application, concluding that the nominated position of “naturopath” was not genuine. The Tribunal was not convinced there was a need for a full time naturopath at the health foods store, or that the applicant would be working as a fulltime naturopath fulltime given that they were also the franchisee owner.
The decision was put forward for judicial review on the basis that the Tribunal had “imported” a new requirement that in order for a position to be genuine, the applicant must perform the occupation. The judicial review application was dismissed.
Interstaff regularly reviews migration law cases across Australia. Read the Department of Immigration and Border Protection’s latest update on the 457 Visa ‘genuineness’ requirements or learn more about Skilled Work Visas.