Genuine Position Requirements for the ENS Subclass 186 Visa, TSS subclass 482 Visa, & RSMS Subclass 187 Visa. How To Prove Nominated Position Is A Genuine Position.

Overview

The Genuine Position Requirement is enforced by the Department of Home Affairs for TSS visa applications and other work experience entry streams. Whether you would like to migrate to Australia on a short term stream or medium term stream, the nominated occupation in the business must be proved to be a genuine position. Common visas that include a genuine position requirement are the Ens 186 visa, RSMS 187 visa, and the temporary skill shortage (TSS) 482 visa. Registered migration agents can assist you through the migration processes, ensuring you meet all the requirements to regional certifying bodies and the Department of Home Affairs.

What Is The Genuine Position Requirement?

The Genuine Position Requirement is a criterion of all employer-sponsored visa applications that the position which is identified in the nomination application is a genuine position. This requirement is in place to ensure that the employer-sponsored visa pathways are being used to fill genuine positions which the employer has not been able to fill from the Australian labour market.

Genuine Position requires that the position associated with the nominated occupation must be genuine. This means that situations, where the actual position needed in the business does not match the nominated ANZSCO occupation will fail the genuine position requirement.

It is also important to remember that the nominated occupation must be on the relevant list. Without this, no matter how genuine the position may be, the nomination application will not be approved.

What Visas Require Proof Of Genuine Position?

Genuine position applies to all employer-sponsored visas.

This includes the following visas:

• TSS 482 visa
• RSMS 187 visa
• ENS 186 visa
  • Subclass 457 visa (closed for new applications)

If you are applying for one of these visas, it is important that adequate information and supporting evidence is provided to show to the Department that the nominated position is genuine.

Proving The Nominated Position Is A Genuine Position

It is important to provide a large collection of supporting documents and detailed information to show that the position is in fact genuine.

These include:

•  A detailed job description which closely matches the ANZSCO occupation being nominated
• A clear explanation of why the position makes sense within the business

Evidence of the need for the work of the position within the business, such as:

• An increase in demand for the business’ services
• Very detailed business plan, if the position is created by diversification into new services or products
• Evidence that the position had previously existed within the company and been filled by somebody else
• Strong evidence of labour market testing which shows that the position cannot be filled by the local labour market

What Situations Are Closely Examined?

The Department is concerned to ensure that the employer-sponsored program is being used to fill genuine labour shortages for Australian businesses. Through considering a number of applications, there are certain circumstances which more frequently attract heavy scrutiny by your case officer.

The range of aspects:

• The position does not make sense in the context of the business’ services
• Tasks are inconsistent with the ANZSCO description
• An existing relationship with business owners
• Not paying the Australian Market Salary Rate

The position does not make sense in the context of the business

While case officers are not always experts in the field of the business which they are making a decision about, they expect that the nominated position is one which makes sense for the type of business.

As such, an application will be scrutinized where it does not fit within the business. This may include nominations such as for a pastry chef to prepare fresh baked goods in an engineering firm, or

There are other circumstances where the position may be within the field of the business, but may not be deemed reasonable due to the size of the business. A common example of this is a nomination for a full-time accountant in a small business, such as a grocery or restaurant.

If there is a particular reason why an unusual position is needed within your business, then it is important to make sure that this is clearly explained to the Department and to provide a very strong genuine position statement, understanding that the application will be even more carefully looked at.

Tasks are inconsistent with the ANZSCO description

Any nomination must specify an occupation from the ANZSCO which best fits the nominated position within the business.

As the different visas have specific lists of occupations which can be nominated, it is important that the nominated position clearly matches the selected ANZSCO occupation. Certain occupations are given more attention by case officers than others, and where there are duties specified for the position that fall outside of the ANZSCO description, this may get flagged by the assessing officer as not being a genuine position.

This is especially the case where a very similar occupation is not on the relevant list (such as for 242111: University Lecturer and 242112: University Tutor on the TSS 482 visa or ENS 186 visa), or where there is a lower-skill occupation which could possibly be "upgraded" to the nominated ANZSCO occupation (such as 551211: Bookkeeper to 221111: Accountant (General)). Duties which appear too routine in nature or below the skill level of the nominated occupation may lead the Department to find that the nominated position is not genuine.

However, when considering whether a position is genuine, a job description which seems to be a copy and pasted off the ANZSCO description will not be looked upon favourably.

An existing relationship with the business owner(s)

Nominating relatives for an employer-sponsored visa is very unlikely to be successful and will attract the scrutiny of a decision maker. Such a nomination will usually be found to have been contrived to achieve a migration outcome.

Not Paying the Australian Market Salary Rate

As listed in the Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate, the nominated position must be paid at or above the Australian Market Salary Rate.

This is the salary which an equivalent Australian citizen or permanent resident working in the nominated position would be earning. If there are no Australians employed by the business in the same role, then you must look at a relevant award or relevant information about how Australian workers in similar positions are paid.

This is a strict requirement for the TSS subclass 482 visa, ENS subclass 186 visa and RSMS subclass 187 visa.

Attempts To Fill Position

The Department will look at a business' attempts to locate somebody in Australia to fill the position in the business.

Strict labour market testing requirements must be met for the following visas:

• TSS 482 visa
• RSMS 187 visa
• ENS 186 visa

The labour market testing requirements are different for each kind and you should refer to the requirement for the relevant subclass.

On top of these, the case officer will be looking at how the business attempted to look for someone. If the advertising and recruitment process looks as though it was not a genuine attempt to locate an Australian PR or Citizen worker, the decision maker may not find that the nominated position is genuine.

It is important to ensure that the recruitment process is clearly outlined in your genuine position statement and that the reason why any Australian applicants were not suitable is clearly explained.

Genuine Position Statement Templates

The genuine position statement is the cornerstone of a strong employer-sponsored nomination application.

We understand that some applicants are interested in using a genuine position statement template to strengthen their application.

So as to be genuine, it is important that any information is specific to the business and to the nominated position. Generic statements will not strengthen your application and may, in fact, put it at a disadvantage.

The best genuine position statement is an authentic letter, written by a representative of the business who understands the important role the vacant position plays in the business and the difficulties experienced by the company in sourcing an Australian citizen or permanent resident worker to fill the position.

 Genuine Position at the Administrative Appeals Tribunal

Administrative Appeals Tribunal Migration and Refugee Division Caseload Report outlines that Employer-sponsored sponsorship and nomination refusals made up the largest number of cases lodged in the second half of 2018. This is more than student visa refusals and partner refusals, which were previously the leading appealed refusals.

This is linked to an increase in the number of nomination refusals, many of which are related to the genuine position requirements.

If your nomination application is refused due to genuine position, you are able to provide more evidence to support this, due to the nature of the merits review process at the Administrative Appeals Tribunal. Again, it is important that you clearly show the Tribunal member that the position within the nominating business is genuine and understand the areas which will be more carefully scrutinized by the Tribunal.

Other Considerations

While the genuine position requirement is an important consideration, there is also a range of other requirements which must be met for the application to be successful.

For the TSS 482 visa in the short-term stream, for example, it is important that you show you are a genuine temporary entrant.

Many ENS 186 visa and RSMS 187 visa applicants will also need to obtain skills assessments, through the relevant skills assessment authority, such as VETASSESS. Certain TSS 482 visa applicants will also need to obtain a skills assessment, depending on their nominated occupation and country of passport.

Certain other pathways which might allow you follow your dream of living and working in Australia may have further additional requirements, such as the recent Global Talent Scheme of the TSS 482 visa (if your sponsor is an entrepreneur or new start-up) or the new Supporting Innovation in South Australia (SISA) stream of the subclass 408 visa (if you yourself are more of an entrepreneur).

Do You Need Help With An Australian Visa Application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer-Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956

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