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Immigration Daily News What will it take to convince the department of immigration to let businesses hire foreign workers?
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What will it take to convince the department of immigration to let businesses hire foreign workers?
Small businesses are facing tough times and the department of immigration is making it harder for them to survive. Many in the industry are saying, DIBP has a policy that discriminates against applications especially by small businesses for hiring foreign workers under the sc457 program.
What is it the purpose of the CSOL which after consultation and consideration at various levels of government and the community has determined essential skills required by Australian companies right now when a DIBP case-officer, despite being presented with a company’s submissions about the realities of its commerce and skills needs, are allowed to make ‘subjective decisions’ about whether the company needs those skills? Are case-officers trained management consultants?
What again is the purpose of the TSMIT which many say already sets an unreasonably high minimum salary rate of $53,900 for foreign workers, when case officers can judge - against the face of market research provided by applicants - that the wages paid to foreigners above this level, are still inadequate?
DIBP seems especially prone to refusing applications by small businesses, who probably are the ones most in need of the specialised skills and experience of foreign workers to maintain productivity levels and profitability of the business. Profit margins are so tight with small businesses that the efforts of a single person can make a difference between success and failure. Failure could effectively mean that Australians in the company could become jobless.
Over the past year, RMAs have been reporting to the Migration Alliance that they have seen a spike in the number of refusals for nominations on various grounds:
Despite being provided market research of the appropriate salary being between $50-60K, it has been reported to the Migration Alliance that the DIBP refused an application which set the nominees salary at $55,000. DIBP said it is too low. They did not provide the sponsor a chance to increase the salary nor did they provide alternative evidence to support their claim of what the appropriate salary should be.
Another common ground is where the case-officer 'deems' that a position is not necessary for the operation of a business and is hence, not a genuine position. An RMA recently reported that a medium sized company with a turnover running in the millions had a nomination refused as the case-officer deemed that this company which hires some 50 employees who are mainly Australians, did not require the additional positions How exactly a public servant can properly determine the human resources needs of such a sizeable business operation is hard to comprehend. What's even more difficult to accept is why the system allows such inexperience to dictate business needs. It goes against the policy objectives of the sc457 visa program.
Migration Alliance invites members to post evidence of unreasonable demands and refusals by the DIBP in order that the Migration Alliance may take up this matter with the authorities. The Migration Alliance has also written to industry bodies for a response to this spike in refusals by the DIBP.
AAT statistics indicate that DIBPs case officers get it wrong one in three times but the reality is that almost 40% of cases are discontinued – skilled workers just do not have the time to wait around on an uncertain future. They move on to where they can focus on contributing to the growth and profitability of a company, leaving local businesses stranded.
Comments
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Friday, 04 March 2016I cannot agree more. On the top of subjective judgment issue, we do straggle with number of RSMS, ENS, 457 decisions affected by judicial error due to negligence or lack of competence of officers assessing nominations. Misinterpretation of financial report, length of business operations, and number of employees or contractors involved in business operations is common.
Request for internal review of the case is always nicely answered, I must admit, in following manner:
Thank you for drawing this matter to the department’s attention. You have requested an internal review of the decision to refuse the nomination application of.......... Pty Ltd.
If the department undertakes a review it may not be concluded before the expiry date of the review period. The department will not undertake a review of the decision if the case is lodged for review with the AAT. Therefore the following options are available to your client:
• Lodge a review application with the AAT as soon as possible and within the timeframe specified in the refusal letter.
• Choose not to lodge a review application with the AAT (ie. let the review period expire) and instead wait for the department to determine if jurisdictional error has occurred. Note that this may not be concluded before the expiry date of the AAT review period.
As a decision has been made we are unable to offer the opportunity to withdraw the application. Please confirm if you wish to proceed with the department considering your claim of jurisdictional error.
Sincerely
........
Manager
Very nice - offer. Isn't it? -
Saturday, 05 March 2016Considering that the law doesn't actually allow internal review, that's pretty good!
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Wednesday, 09 March 2016
Actually the policy DOES allow for internal administrative review where there is jurisdictional error but you have to document your case strongly. You have to clearly show that the error is one of interpretation and not simply a merits review. We have had good success in asking for revocations but we play the card rarely.
See PAM3 Visa Applications Page 3 (paragraph 100), and also See Chapter 17.3.5 of the ACIs for a citizenship example.
- You might get this standard cut and paste paragraph:
"A decision made by a delegate may be revisited only under very specific circumstances including where there is a clear jurisdictional error, subject to certain other specific requirements. An assessment as to whether the decision in this instance was in fact affected by jurisdictional error must be made by relevant colleagues in our Head Office". -
Friday, 04 March 2016
Regardless of salary offers, the department has an enormous prejudice against employers who have migrated here and are hiring someone from "home." This is part of a belief that all employees are basically interchangeable cyphers. It is inconceivable in the bureaucracy that someone might prefer a person with a background similar to their own or that a person might prefer to hire a qualified relative. Preference is equated with racism. That would be true if the preference were determinative of the hiring. Employers are not rejecting white Australians of equal training and experience. If those potential employees existed in our marketplace, they would already be hired.
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Wednesday, 09 March 2016
Have you noticed that many of these case officers are imports themselves, as can be seen from the ethnic names What is the hidden agenda?
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Friday, 04 March 2016
I had a successful 457 grant, but had to increase the salary level nominated by the employer. It was for a production manager position and industry actual salaries in WA were around the $55k to $60k mark; however, the case officer indicated that it was not the market salary rate that he had assessed to be the case. This was a pasta company which I highlighted was very different from the actual industry assessment of a production manager which is more inline with production of cattle (this has a higher yield and is more complex in its processes). It was difficult to obtain position advertising market salary figures because most would not provide this information until the applicant makes it through to the interview stage and the information is usually private and confidential. There were not many available comparison rates because it was a fairly specialised industry. To reduce the risk of refusal, the employer increased the salary to 70K and was accepted.
I do agree that many case officers are not trained accordingly and are making wild guesses on what should be acceptable and non-complying. They should have more accountability when they make silly decisions that have a high chance of being overturned at the tribunal. Maybe applicants should have a right to claim the missing 50% that the tribunal holds back if indeed the case officer is found to have given an unjust assessment.
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Sunday, 06 March 2016
many 457 visas are abused by employers if you take on a 457 visa staff you should also employ & train up a local australians to replace them why are many given permanent residency after 2 years there are still many unemployed australians who want jobs. in the health industry currently there are around 2000 unemployed nursing graduates who are not employed as they many helath allied companies currently employ around 2500 overseas nurses on 457 visas & several hundred international student graduates who have graduate after studying here instead of australian nursing graduates, employers such as primo ( hans small goods ) have employed people on 457 visas usually around 100 & when their 457 visas expire usually 9 to 12 month contracts they then get in another group of 457 visa graduates from a different country & so on they have been doing this for at least 10 years with at least 200 other companies doing the same . i think you people are missing the point this is australia & australian should be employed first not people from overseas with over 800 thousand unemployed australians i accept there are some skill shortages in some areas much of it is because some companies are to lazy to train up australians with qualifications should be employed & trained up first 457 visas should not be converted to permanent residency unless there are genuine vacancies australians are being trained up at the same time there are also many fake 457 visa situations such as managers & many international restaraunts who cant financially survive without international students paying them bribes for 457 visas there appear to be many rorts maybe immigration staff are aware of some employers abusing the 457 visa program putting australians last the above & process 457 visa applicants with that mindset comments & take a blanket view that this is constantly occuring the people who have made the above comments trying to bringing in skilled 457 visa people i assume you are training up australians as well. maybe these reasons are feeding prejudice / belief by some immigration officaks
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Wednesday, 09 March 2016
Criteria not genuine position applies for nomination as well as 457 visa application. How can DIBP justifies this. They approve nomination, which means that genuine position criteria was met, yet they refuse 457 visa application stating that position is not genuine. The case has to got to AAT, by the time hearing comes up another nomination had to be lodged which is approved without delay, then AAT remits it back to DIBP, and this time DIBP comes up with issue that applicant has no relevant skills, though she has by that time worked for sponsor about 3 years plus previous skills. Back to AAT, another nomination 12 months later and now awaiting decision on nomination and pending hearing. In total about 3 years since first application. UNBELIEVABLE
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Wednesday, 09 March 2016
The following feedback was given to the DIBP via Global Feedback web page on 15 December 2015. But no response has been received as of today. Apparently they don't see a need to respond to this type of feedback.
"The query is in relation to Subclass 457 visa policies and is directed to the National Policy Section. It has been noted one of the criteria has been listed in both Nomination and Visa Application steps to be satisfied, namely "The position associated with the nominated occupation is genuine." in Reg. 2.72(10)(f) of the Nomination assessment step and in Subclause 457.223(4)(d)(ii) of the Visa Application step. Since they are exactly the same criteria and are related to a same Sponsor, why do they need to be assessed twice? It is respectfully submitted it is an unnecessary and unreasonable requirement for the criterion to be reassessed at the Visa Application step again if the criterion has been satisfied at the Nomination step." -
Wednesday, 09 March 2016
The prejudice and heavy-handed decisions against small business are running rampant these days with 457 nominations, especially where case officers "decide" that certain occupations require a "sophisticated" (code for large) business regardless of the evidence provided. Makes me wonder whether this is a good option:
http://www.finance.gov.au/resource-management/discretionary-financial-assistance/cdda-scheme/ -
Wednesday, 09 March 2016
The applicant, ** name removed**, is involved in the hospitality industry operating a
"contemporary Mediterranean inspired restaurant with specialty in Arabian cuisine".
I have referred to the documents that are available in support of this application including its
submission supporting the position is genuine and financial information such as Business
Activity Statements for two quarters in the previous calendar year.
The applicant stated "the restaurant opens 7 days a week from 11am to Midnight every
day. That is total of 91 hours per week, not to mention that our kitchen staff comes one hour
earlier than the opening time to prepare the kitchen for a day's operation."
"At present, the reality is that our Chefs are way over worked. Our busiest times are
particularly on the weekend. A full time Chef can only work 38 hours per week, and often we
are resorting to working overtime."
I have considered the applicant's submission, however, the applicant has not provided
sufficient evidence to demonstrate the current scope and scale of its business' operations
such as financial information showing an increase in sales.
The organisational chart provided lists among the other a Director, General Manager,
Restaurant Duty Manager, Bar Manager, an Executive Chef, Chef and two other chefs one
of which is the nominated position. However, it does not indicate the employment status of
its employees and further it does not sufficiently demonstrate the scale and size of of the
business.
The applicant claims that they have a need for another chef. "At present, the reality is that
our Chefs are way over worked. Our busiest times are particularly on the weekend. A full
time Chef can only work 38 hours per week, and often we are resorting to working overtime."
However, there is no evidence of an increase in their payroll expenditure to support such a
claim.
When I consider these claims in the context of the scope and scale of the business, I am
not satisfied that the business is operating at a level that would indicate that the nominated
position is genuine. I have formed this view after considering the information provided
relating to the operating environment, current business practices, staffing composition and
the duties currently being performed by these staff, and demonstrated financial position.
In making my assessment I have considered the applicant’s claims regarding its expansion
plan and requirement for the position, but in the absence of independently verifiable
information (eg. increase capacity of operations, independent audit outcome), I can only
attribute limited weight to these statements.
Based on the information available that goes to the current nature and profile of the
business, that has been provided in connection with this application and relevant associated
applications, I am not satisfied that there is sufficient evidence to support the claim that the
position in the nominated occupation is genuine.
When considered in the context of the current operating environment, based on the
information provided, I am not satisfied the nominee is likely to be regularly performing the
full breadth of duties as defined in ANZSCO of a Chef in the relatively modest financial
environment of a business of this scope and scale.
I find that the position associated with the nominated occupation to be inconsistent with the
nature of the business based on the information provided to date. As such, I find that the
position associated with the nominated occupation is not genuine, as per Regulation 2.72(10)
(f). I do not consider the position associated with the nominated occupation to be genuine, and consequently the applicant does not satisfy paragraph 2.72(10)(f).
I am therefore not satisfied that the applicant meets subregulation 2.72(10).
** We submitted evidence that the restaurant has spent $3 million dollars in expansion expenses which was supported by documentary evidence, we discussed the restaurant's urgent need for at least 5 more chefs due to the enormous expansion, however the case officer chose to ignore all this evidence,
We are absolutely astonished by his complete disregard of the information and documents
all documents provided in support can be independently verifiable, however, the case officer chose to simply neglect all documents and information and refused the application on the core basis that our client did not provide evidence of increased business activity.
This is utterly unacceptable , we voice our deep concern about the case officer’s method of assessing the application and particularly by failing to take into account readily available information and documents. ** -
Monday, 14 March 2016
You are right. These case officers don't take into considration any specific supporting evidence at all, whatever they may be. They just copy and paste the standard reason for refusal. Voila, another case is refused!
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Wednesday, 09 March 2016
It is a good way of closing the visa category down.
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Wednesday, 09 March 2016
Another example of similar refusal (in which the fast growing business is desperately in need of a customer service manager who can speak Chinese): the case officer has paid no attention (or no understanding ) of this particular business, including photos of business, contracts, financials and very detailed and realistic business plan)
As described in ANZSCO, the occupation Customer Service Manager involves planning,
administering and reviewing customer services and after sales services, and maintaining
sound customer relations.
The position is therefore a high level role that significantly shapes organisations and
business direction. Given the far reaching impact of this position, the role of a Customer
Service Manager is typically associated with organisations operating within a competitive and
complex business environment, with a significant number of staff, product lines and client
commitments.
I have considered all of the documents in connection with the application, including the
prospective tasks of the nominee. I note that some of the duties to be performed by the
nominee are consistent with the role of a Customer Service Manager as described in
ANZSCO, including preparing customer service policy and procedure.
However when I consider these claimed duties in the context of the scope and scale of the
business, I am not satisfied that the business is operating at a level that would indicate that
the nominated position is genuine. I have formed this view after considering the information
provided relating to the business operating environment, current business practices, staffing
composition, as well as current and immediate future client commitments.
While I acknowledge the applicant’s claims regarding projected growth and requirements for
the position, based on the information provided, I can only attribute limited weight to these
statements. When considered in the context of the current operating environment, based
on the information provided, I am not satisfied the nominee is likely to be actually regularly
performing the full breadth of duties of a Customer Service Manager, as defined in ANZSCO.
Having considered the information available that goes to the current nature and profile of the
business that has been provided in connection with this application and relevant associated
applications, I am not satisfied that there is sufficient evidence to support the claim that the
position in the nominated occupation is genuine. As such, I find that the position associated
with the nominated occupation is not genuine, as per Regulation 2.72(10)(f). -
Monday, 14 March 2016
Policy owners have once again got it very very wrong, but they are getting away with it.. again! The fact is that Policy has NO industry source to determine the size and scope of businesses. Policy is incorrectly applying wording from the Australian Bureau of Statistics (ABS), at an incorrect UNIT GROUP and SKILL LEVEL which is driving all these refusals. They got the ABS instructions wrong.
The Australian Bureau of Statistics (ABS) is the approved wording under the legislative Instrument. It is their guidelines that are to be used to interpret ANZSCO and the subsequently the Ministers Instrument for the Consolidated Skilled Occupation List (CSOL).
I also had recent refusal for Customer Service Manager stating that: The Size, scope and scale of the business does not warrant a Customer Service Manager, which is a High Level Position. The same business had the same position with the same employee APPROVED 2 years ago, but as they were a new business at the time we had to reapply at 12 months, only to be refused?
Absolute Bollocks!
Reg 2.72 – Criteria for approval of nomination – subclass 457 (Temporary Work (Skilled) visa,
2.72(aa) if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and it’s corresponding 6-digit code specified by the Minister in an Instrument of writing for this paragraph
IMMI 12/022 - Specification of occupations for Nominations in relation to Subclass 457 (Business (Long Stay)) (Paragraphs 2.17(10(aa)): 149212 - Customer Service Manager
The ANZSCO Guidelines provide very specific rules for the concept and interpretation of the Major, sub-major, minor and unit group definitions. Each Unit Group is distinguished separately and on the basis of a finer application of skill specialisation and Skill Level.
Current policy is reflecting MAJOR GROUP 1 - MANAGERS for MINOR GROUP - SKILL LEVEL 2 - Customer Service Managers. Policy is incorrectly applying the size and scope of a business that would employ a HIGH LEVEL Major Group Level 1 Manager to the MINOR GROUP 6 digit occupation.
Excerpt from ABS: Page 1 – Under Heading: CONCEPTUAL MODEL
Within unit groups, the distinction between occupations amounts to differences between tasks performed in occupations. All occupations are at one skill level.
ANZSCO - 149212 - is a MINOR GROUP - Skill Level 2
Contents >>Major Group 1 Managers >> SUB-MAJOR GROUP 14 Hospitality, Retail and Service Managers >> MINOR GROUP 149 Miscellaneous Hospitality, Retail and Service Managers >> UNIT GROUP 1492 Call or Contact Centre and Customer Service Managers
Excerpt from Page 3 - ABS Instructions – under heading
PROFILE AND SUMMARY OF ANZSCO STRUCTURE
From explanatory note: The first three tables (Major Groups, Sub-Major Groups and Minor Groups) show the predominant skill levels applying to EACH group
QUESTION: So how does Policy get is so WRONG and continually get away with it?
Policy are applying the wording at the WRONG GROUP LEVEL and they are using it prescriptively.
Here is another gem from ABS: Excerpt from Page 4 – under heading
INTERPRETING ANZSCO OCCUPATION DEFINITIONS
"ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively"
ANZSCO 6 Digit UNIT levels are the ONLY correct interpretation of ANZSCO as per Reg 2.72(aa) - The Department is assessing occupations incorrectly from the route source - the Ministerial Instrument and the instructions from the Key Stakeholder - ABS.
Isn't Policy meant to be a Guide only to interpret the law? Seems the current Policy Owners can't read instructions very well.
Dear SC457 Integrity group - please explain. How can Policy get away with getting it wrong AGAIN?
Immigration blog
Reg 2.72: If the person is a standard business sponsor the Minister is satisfied that:
10(cc) the base rate of pay, under the terms and conditions of employment mentioned
in paragraph (c), that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident, will be
greater than the temporary skilled migration income threshold specified
by the Minister in an instrument in writing for this paragraph
(10A) The Minister may disregard the criterion in paragraph (10)(cc) for the purpose of
subregulation (2) if:
(a) the base rate of pay will not be greater than the temporary skilled
migration income threshold specified for that paragraph; and
(b) the annual earnings are equal to or greater than the temporary skilled
migration income threshold; and
(c) the Minister considers it reasonable to do so
DIBP refused one of my recent application for a difference of $0.743 per hour!!! The local manager has 8 years experience and the new nominee has 4.5 years and is new to this country. We submitted that the company would review the performance in 6 months and award the salary accordingly. The officer didn't bother to contact me or the employer to discuss, just a flat refusal!!