Login / Join
Australian Immigration Daily News
Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email help@migrationalliance.com.au
- Font size: Larger Smaller
- Hits: 5201
- 5 Comments
457 Visas and Genuineness - Case of a Naturopath
It seems like one of the “hot topics” in migration law is establishing that the position for which a 457 visa applicant has been nominated is “genuine”.
And it seems like the reason that this requirement has been so controversial is because it allows scope for a huge amount of subjective judgment on the part of a case officer, or, for that matter, the Tribunal, to determine what is genuine, and what is not.
Is this one of those situations where the answer to the question of whether a position is genuine is: “I’ll know it when I see it?”
Or that if “It walks like a duck and quacks like a duck, it is a duck?”
Is there any assistance to be found in the Procedures Advice Manual (“PAM”) to help identify when the position associated with a nominated occupation is “genuine”, and that the requirement of genuineness imposed by subclauses 2.72(10)(f) and 457.223(4)(d)(ii) is satisfied?
Well, PAM tells us that the task in determining “genuineness” is not whether the position is “needed” by the business. Rather, according to PAM, the relevant questions for assessment are whether the position exists, and is what it purports to be. PAM tells us that the purpose of the genuineness requirement is to protect the integrity of the 457 program, and to help ensure that what is in reality is a semi-skilled position is not “dressed up”’ to appear more skilled in order to facilitate approval of a visa application.
PAM also tells us that among the indicators that may be looked to by the Department when assessing “genuineness” will include matters such as whether the tasks of the position align with the description of the occupation as stated in ANZSCO, and whether the position is consistent with the nature of the business.
A recent case decided by Justice Street in the Federal Circuit Court suggests the sort of difficulties that the “genuineness” criterion may pose for 457 visa applications. That case was Mahesan v Minister for Immigration & Anor (2016) FCCA 1289, handed down by the Court on 30 May 2016.
The facts in Mahesan were that the applicant sought a 457 visa to be employed in the role as a “naturopath” at a health foods store. It was claimed that the work to be undertaken by the naturopath would include performing initial consultations with clients to examine the current state of their health and lifestyle, and identifying the root causes of the client’s presenting complaint.
So, was this application problematic?
Unfortunately for the applicant, it was.
In the first instance, the application was refused by a Departmental officer, who found on the evidence 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”.
Can we stop a minute and consider whether the “delegate” decided this application on a basis that is directly contrary to the guidance in PAM, that is, determining whether the position was “needed” by the business?
The application did not fare very well before the Tribunal either.
The Tribunal concluded that the nominated position of “naturopath” was not genuine. It affirmed the refusal of the visa application.
It arrived at this conclusion on the basis of findings that the applicant was the franchisee of the health foods store, and that his work involved running the business and working “when needed”, as a naturopath. The Tribunal determined that while the evidence established that the applicant was a naturopath, and that some of the work he undertook at the health foods store was in the capacity of a naturopath, that it was not satisfied that there was a need for a full time naturopath at the health foods store, or that the applicant worked full time as a naturopath.
I ask again: did the Tribunal also do exactly what the PAM counsels against, and did it not base its decision on whether there was a “need” for the position? Based on the portions of the Tribunal’s decision that are reproduced in Justice Street’s judgment, it surely appears that is exactly what happened.
Well, here’s the next chapter: of this story: Justice Street dismissed the application for judicial review of the Tribunal’s decision, finding that there had not been any jurisdictional error.
The basis of the judicial review application was that the Tribunal had “imported” a requirement that is not imposed by the legislation, namely that in order for a position to be “genuine”, the applicant must perform the occupation on a full time basis.
It was Justice Street’s view that the Tribunal had not superimposed a requirement that the position be full time.
Rather, Justice Street took the view that what the Tribunal had actually done was make a finding that there was not really a position for the occupation of “naturopath” at the health food business. In other words, it was Justice Street’s opinion that the Tribunal had determined that the position of naturopath was not genuine because it did not really “exist” at the business. Instead, what the Tribunal found was that the applicant was in reality a franchisee running the health food business, not really working as a naturopath (even though when there was work at the store that required a naturopath, it was undertaken by the applicant).
What do you think of the result here? Was the result here really a product of the findings by the case officer and the Tribunal that the position was “not needed”, and not that it did not exist? Suppose the applicant had no other duties at the business other than to consult with clients in the capacity of a naturopath, and he was not involved in any respect in any other aspect of running the business, would that have changed the result?
What have your experiences been in dealing with cases involving questions of “genuineness”?
How do you think these issues should be dealt with?
I note that this case was run by the firm of our colleague Christopher Levingston, so perhaps he will wish to chime in on what happened here!
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
-
Wednesday, 13 July 2016I think that because the decision was made by Street J speaks volumes.
I would be lodging an appeal at the full Federal Court. -
Wednesday, 13 July 2016Dear Christopher
If any part of the submission has the statement "the applicant was the franchisee of the health foods store, and that his work involved running the business and working “when needed”, as a naturopath." then the case officer and Tribunal has taken the right decision. It means that the nominated position is not required on full time basis and the contract is for the nominated position for 35-38 hrs of work. Which means that the nominee will not work in the nominated occupation/position during his/ her working hours. Instead, if the submission included the breakup of daily tasks along with the % of time allocated to each task related to the nominated occupation, it would have been difficult for the case officer to refuse.
In my view with the evidences indicated above, it seems that the position partially exists and is partially genuine. So it is always easy for the case officer to take a refusal decision rather than an approval decision. And this "partially" can only be converted into "fully" only with evidences like client entries/ visits/ recommendation records and letter from the franchisor etc. -
Thursday, 14 July 2016
I'm not surprised that this was the decision. The first issue was the fact that the Nominee was also running the Franchise and was actually more of a GM with some Naturopath duties. In this scenario, Naturopath would not be the most appropriate choice of ANZSCO occupation. Generally speaking, the system's requirement to choose a single ANZSCO occupation is not very forgiving on small businesses that often have 'blended' roles like this. This to me is the biggest flaw in the current system given that small business is the biggest employer in the country. Seems like a big chunk of business are not adequately served by the current approach.
The other issue is even if the applicant had no other duties, the fact that customers were not paying for or booking a Naturopath consultation, rather they were buying products that came with free advice, this makes the role more of a sales function. A health food store with an in-house naturopath is a great business idea but in my experience, in the eyes of the Department this would be seen as quite different from a Naturopath clinic that might also sell some products.
I think it comes down to the primary purpose of the role and in this case it seems that was to sell products rather than to give advice which would make the choice of Naturopath not the best option and the Case Officer's decision not entirely surprising. -
Saturday, 16 July 2016
The decision by all three is wrong. I would also question the value of the PAMS.
457 Visas allow companies/businesses that cannot source an employee locally to do so. In adding value to a business it is common to include new positions that offer new services or provide for increased revenue of a company to take over duties of the current owners/managers or other employees. This can only be assessed as existing position if the company so determines.
Defining if a position exists is flawed with so many scenarios. How to impose this on a newly registered business/company? When a company is expanding there is a need for new employees to handle the work. What if a contractor has been servicing the business and they now want a new employee? The need beckons the position as is always the case. Taken as a narrow view the job must exist so would have been occupied by another person in the past. How does this support reality in business?
REGS
(e) if the nomination is made on or after 1 July 2010 — the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A) the nominated occupation listed in the ANZSCO; or
(B) the nominated occupation specified in an instrument in writing for paragraph (aa); and
The comments in the decision relating to Full Time Position have not taken this into account. The definition of significant Majority is not afforded weight here.
I remember a CPD in Brisbane many years ago with the Head of Policy Peter Spellwinder) attending stating that the 457 Visa program is a demand driven model. Incidentally I questioned this at the time based on the long processing times for 457 Visas). Demand driven implies need.
Demand implies need. A position exists if the business determines they have a need and make provisions for it and it fits the general nature of the business. The argument can go on in many ways but simply any position is always based on need. Logically a business will not employ people if they do not need them so this raises validity of the policy approach for Immigration.
I can see where Immigration has come to the current approach with Pizza shops with 1 or 2 employees nominating a customer Service manager, however those decisions are more based on the position being created for the applicant and not relevant to the business.
If an occupation is relevant to a business, even if it is a newly opened position it should be assessed according to the occupations relevance to the business and the operation of the business.
Immigration blog
It is almost impossible to convince Judge Street in migration matters. Last month, the Minister conceded jurisdictional error in two of my cases. Accordingly, as is usual practice, "Proposed Consent Orders" along with the notation/statement were forwarded to his Associate at FCC to quash the Tribunal's decision. One of them was returned 3 times with remarks. He finally made those Orders in Chamber after forwarding an Affidavit annexing evidence to support the Applicant's claims ( not merit review though !!).