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Refuse, refuse, refuse: 457 nominations and visas refused
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.
My crystal ball prediction
If this continues, people desperate to stay will have no other option but to become unlawful because it is all too hard. Either that or other subclasses of visa will be rorted so that they can stay in Australia. No wonder 62,000 foreigners are now living in Australia without any visas.
DIBP....... QIN WO PI GU!
Comments
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Wednesday, 29 July 2015
Yes, and now we have a comment in about the student visa processing centre at the DIBP as well. Not just the 457 section. Is the DIBP infected with problematic decision-making across the board? Have your say.
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Wednesday, 29 July 2015Hi Liana,
Fantastic post however very alarming.
It is very concerning to read some of the information you have provided me. I believe us as RMA's need to take a stance to this, it is jeopardising our clients, and our businesses.
What ever happened to Australia giving people 'a fair go'. -
Wednesday, 29 July 2015
I am considering lodging a complaint letter to the 457 Business Director. Eventually these refusals are going to end up at the tribunal causing unnecessary inconvenience for all parties. Their recent refusal decisions are so ridiculous!
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Wednesday, 29 July 2015
This was my concluding remark on an MRT appeal case to be heard on the 5th August:
It says it all on an 187 RSMS reg 5.19(4)
13. The Department’s policy of requiring decision ready application and making adverse statutory decision without extending the opportunity to provide clarification, over a non conventional business operations, under natural justice principles adversely affects the economy of the nation. It is humanly impossible for the applicant to predict any adverse, sometimes flawed, inference drawn by the delegate, as it was in this case, to provide an explanation at the outset as decision ready application. It is not conducive to smooth growth and management business. -
Wednesday, 29 July 2015
Just got a request for a skill assessment for the following reason; -
'Please note that the Certificate IV in Hospitality that you have provided with your application
is not sufficient to meet the skills requirement as it was gained under RPL’
Now to explain to my client that the Australian government does not recognise qualifications awarded by the Australian government.
Gotta love my job. -
Wednesday, 29 July 2015
Could not agree with you any more, Liana. I received a refusal of nomination for 457, the case officer even did notbe bothered to put the details of reasoning, just stating "I am not satisfied the documents provided on 23rd May 2015 within the line of related legislation". The officer of DIBP really need a good understanding that the goverment officers are bound to observe the rule of law in making the decision.
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Tuesday, 30 August 2016
hi
i just read your post, i have the same situation as yours, my 457 is refused and the reason is same the co is not satisfied,
i want to know did you applied for review of your application after refusal, as we are planning to request the review. any help is much appreciated -
Wednesday, 29 July 2015While we have not got jet any refusals on 457 visa applications , nominations , SBS lodged recently all applications /nominations for customer service managers has been put on hold . We are waiting already 4 months for decision. I presume clients can expect site visits.
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Wednesday, 29 July 2015
There are notorious case officers who have a reputation of refusing anything that comes before them. They should be outed my name on a blog so we can all see their names and the decisions they make.
Refusing visa applications before any decision is made on nomination applications is also a new trend. When this happens there are no merits review rights according to the decision in lee's case. If the client happens to be on a bridging visa when the 457 is refused, they have 28 days to leave the country despite no decision having been made on the nomination.
I recently had a case where the delegate refused the 457 before any decision was made on the nomination. The 457 was refused because there was not yet any approved nomination. To my amazement, a few days later the nomination was refused. What was amazing in this situation was that the same case officer refused the nomination. So much for natural justice and transparency. He had 2 files on his desk being the nomination and 457 application but chose to pick up the 457 file to refuse it before he even looked at the nomination application. Again no merits review in this situation. obviously he was going to refuse the nomination in order to justify his 457 refusal. Try explaining this to the client!
What is also evident is the departments refusal to revisit decisions that are plainly wrong in fact and law. I recently had a 457 refused because the delegate assumed the IELTS test was more than 3 years old at time of application when it clearly was not. It was a valid IELTS at time of application. Despite bringing the matter to the attention of the delegate and department head and the fact that i had limited time for MRT (AAT) appeal rights and despite the fact that i was assured that i would receive a response before the MRT deadline, no response was received so there was no choice but to lodge an MRT at great expense to my client. he now sits in a long MRT que waiting for his case to be determined all because no one in the department could be bothered to look at the IELTS test to see that it was valid and the decision to refuse was plainly wrong.
They are doing this knowing full well then in some cases there is no merits review (lee's case) and knowing full well that any merits review will take 1 year or more to be decided by the AAT.
A carefully thought out strategy by agents and lawyers needs to be implemented as to how we are all going to respond to this obvious trend by the department to refuse anything that comes before them. A decision that a hair salon with only one part time hairdresser does not need a full time hairdresser and that a cafe that has employed a pastrycook for 1 year and who produces Italian patisseries is not required by the cafe (as according to the case officer, pastrycooks are normally engaged in cake shops and not cafe's) are now regular occurrences which leaves all of us trying to explain what happened to clients.
What will be the strategy to respond to this heavy handed approach by the department? Peak industry associations meeting with the minister? MA meeting with the Minister or department head? Or do we all just flood the AAT with applications?
Do we all lodge complaints to the commonwealth ombudsman and to the department global feedback unit?
Or do we just sit back at take this nonsense from the department? -
Wednesday, 29 July 2015
I got one nomination refusal because case officer thought: "It is expected that the directors/managers of small businesses like the applicant's have close control towards decision making and planning and are therefore likely to perform some of the tasks of a Marketing Specialist. I am therefore satisfied that the applicant would not be in a position to justify a full time position for a Marketing Specialist within their organisation, given the size of the business.
My client commented: since when, DIBP started coaching us how we are going to operate our business.
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Wednesday, 29 July 2015
I received 457 Nomination refusal to day (29-7-15). The reason mentioned was that labour market testing document was not provided at the time of Nomination Application. However case officer did mention that it was provided but post dated.
I applied nomination on 17-7-15 along with 457 visa. and uploaded all document by 20-7-17. In these document labour market testing document was uploaded to Immi Account on 20-7-17. The labour market testing document was dated 13-7-17 but case officer says it is post dated or it may mean that it has been uploaded late. According to my understand document needed to be consider up until the time of decision. -
Wednesday, 29 July 2015
I have nomination refusal due to same reason of not uploading LMT document at time of application. I lodged the application again on the same day and it was approved in a week time. What a punishment to upload the document on the following day or to just grab another $333.
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Thursday, 30 July 2015
Yes, and just what WE can do about it?
May I suggest, NOTHING? -
Thursday, 30 July 2015
You can continue to blame the individual case officers but the truth is that a lowely public servant will be implementing department and therefore government policy. They do not risk their jobs by making silly decisions that can be later challanged. The fact is the government is useing the application process as a means of reducing visa numbers. They are effectively closing australia without too much adverse publicity. Rather than remain illegal i advise clients to look at migrating to another country like canada that has its borders open and have a better life
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Thursday, 30 July 2015
Hrajinder Chouhan.. Thanks for comment I did the same thing and applied again the same day and uploaded all docs... I hope I get the decision within 28 days...Otherwise visa application will be at risk..because applicant has been given 28 days to defend on natural justice ground...
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Thursday, 30 July 2015
Qazi Nadeem, Please provide new nomination TRN to case officer and make a request to link Visa application with new lodged nomination if you haven't done it yet. Good Luck!!
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Thursday, 30 July 2015
We have just received a natural justice letter for qualification could not be verified due to the college not providing information (due to local privacy laws). We got a confirmation that there is no email or phone call logged on the university student file.
Given that there is no phone numbers anymore i've took the brave step to call 131881... i would bet that i can get my Vodafone problem sorted than get anything out of the person (who now CANNOT give position numbers out over the phone but a given name). We got given 28 days as normal. Given that i have received no response to emails, we submitted qualification/transcript/graduation photo etc and currently waiting for a decision (or a potential MRT case).
Since the epidemic of fee increase the service level has significantly decreased. Documents uploaded aren't looked at. Not to mention there seems to be no accountability as there are no case officers anymore (as far as i understood from the person from the 131call). Something a private sector company could not possibly afford.
RMAs pay a decent amount of money to DIBP each year for that 7 digit registration number and to be monitored, however there is no "privilege" or "assistance" that comes for the price. I am yet to understand the DIBP mentality on this, imagine that we could make their life easier and sit at the same table with them. it would create easier life for them, for the client and for us.
I know, someone now reading this and thinks about the famous quote from The Castle : "Tell him he's dreamin'" -
Thursday, 30 July 2015
Does DIBP publish any statistics about small businesses and fraud in the 457 visa? I always felt that the case officers believed as an article of faith that small businesses were the big offenders in this area. Are the case officers privy to some studies to which we don't have access? Or is it just a predilection on the part of case officers who work in a large bureaucracy to believe that small businesses are run by lesser beings?
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Thursday, 30 July 2015
Typical reasons of nomination refusal on the ground of genuiness which seems like copy and paste for Customer Service Manager position: I find that the nature of the business, the current staffing, size and scale of the
business does not demonstrate a need for managerial position and that of a full
time Customer Service Manager.
Based on the information provided, given the size of the business, it is reasonable to conclude
that the Customer Service Manager functions would be carried out by a combination of staff
including the Directors or other Managers.
Immigration blog
Victorian student visa centre is not paying attention to the documents provided through ImmiAccount and it is resulting in visa refusals.