At the moment, for a business to nominate an overseas worker under the Temporary Work (Skilled) (subclass 457) visa program, it is necessary for the position to be ‘genuine.’ The ‘genuineness’ criteria was introduced on 1 July 2013 and has created additional challenges when businesses apply to nominate an overseas worker under the 457 visa program.
Impact of Harsh Application of the 457 Nomination ‘Genuineness’ Criteria
The concern with the genuineness criteria has been that its application is highly subjective and has led to uncertainty as to whether a subclass 457 nomination application will be approved by the Department of Immigration and Border Protection (DIBP). The introduction of the ‘genuineness’ criteria has led to a stark increase in refusal rates for 457 nominations from approximately 5% for the 2013-2014 program year to approximately 11% the following year.
The Migration Review Tribunal (MRT) is now congested with appeals of subclass 457 nomination applications refused on the basis that a case officer of the DIBP determined that the application was not ‘genuine’ when this provision may have been applied harshly or misapplied by a case officer. Waiting times for MRT appeals are now around 12 months given the sheer volume of the ‘genuineness’ appeals.
A host of cases exist where subclass 457 nomination applications have been ‘genuine’ in terms of being legitimate, but have been refused where a case officer decided that a particular business did not require that position.
Good News for the Future of 457 Nominations
In good news for businesses needing to nominate overseas workers on subclass 457 visas, amendments will be made to the ‘genuineness’ criteria. The DIBP has stated that policy will be introduced on 1 July 2016 to clarify application by case officers of this provision. The DIBP published an update today stating:
“The new guidelines clarify that the ‘genuineness’ requirement does not equate to an assessment of whether or not the position is ‘needed’, but whether the position associated with the nominated occupation is genuine. That is, the position must exist and also be what it purports to be.
It explains that officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application unless there are doubts as to the veracity of these certifications or the intent behind the nomination.”
This is a positive step on the part of the DIBP and we hope that the new policy clarification will lead to a greater level of certainty for businesses sponsoring workers on subclass 457 visas as to the chances of success of their nomination application meeting stipulated criteria. We look forward to being able to operate in a more consistent processing environment.
For advice regarding Australian work visas and sponsoring overseas workers, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.
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