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457 Visas and the Genuine Position Criterion

What is the correct test for determining whether the position for which an applicant for a 457 visa has been nominated is “genuine”? 

This is a question that is of course of critical importance for applicants for 457 visas and their sponsoring employers, as the Schedule 2 criteria for 457 visas include as a key element the requirement that the Minister be satisfied that “the position associated with the nominated occupation is genuine” - clause 457.223(4) (d) (ii) – and because it is common for 457 visa applications to be refused on the basis that the reviewing delegate is not satisfied that the position is in fact genuine. 

So it is worth noting a recent decision from the Federal Court of Australia in which this issue was revisited, Pasricha v Minister for Immigration and Border Protection (2017) FCA 779. 

The occupation for which the applicant had been nominated in the Pasricha case was that of a “Customer Service Manager” at a carwash. 

In the first instance, the Departmental office who reviewed the visa application determined that the position of Customer Service Manager was “not required for the business”.  The delegate also expressed the view that the position of Customer Service Manager was one that was “found in large businesses that deal with a large customer base such as business call centres” and that was not appropriate for a business like the sponsoring employer’s, which was a “small car wash franchise”. 

When the case was heard before the Tribunal, there was evidence from the applicant that his actual work responsibilities included greeting customers at the carwash; collecting their payments; and trying to sell vouchers.  The Tribunal took the view that a Customer Services Manager is a “specialist managerial position who worked with a team of other specialist managers (such as human resources, sales and marketing or operational managers) who in turn may report to a general manager within a substantial business enterprise”.  

The Tribunal reviewed the description of the occupation “Customer Services Manager” in ANZSCO, which provides that the duties of this occupation are: 

“Plans, administers and reviews customer services and after-sales services and maintains sound customer relations” 

It found that while some of the applicant’s duties matched the description of customer relations manager as specified in ANZSCO, those customer service duties were only part of his responsibilities, and that the materials in the application revealed that in reality the work that the applicant was actually carrying out was that of a “car wash manager”. 

Judicial review of the Tribunal’s decision was then sought in the Federal Circuit Court. 

The FCC held that the correct test for determining whether a position is genuine is the one that was articulated in the Cargo First case, namely, for the decision-maker to compare and contrast the description of the occupation in ANZSCO with the work that the visa applicant has actually done (or is proposed to carry out). In other words, the exercise is to involve what was described in Cargo First as a “qualitative analysis” to determine what work responsibilities are actually involved in the proposed position, and to assess whether those responsibilities “match up” with the description of the occupation in ANZSCO. 

The decision of the FCC was then appealed on to the Federal Court, where a rather subtle and intricate submission was made: 

It was argued that the Tribunal had fallen into jurisdictional error by having regard only to the position description for the occupation of Customer Services Manager in ANZSCO, without taking into account the description of the responsibilities specified elsewhere in ANZSCO for the relevant “Major Group” and “Sub-major Group” in which the occupation of Customer Services Manager is found. (In ANZSCO, the occupation of Customer Services Manager is within the Major Group of “Managers” and within the Sub-major Group of “Hospitality, Retail and Service Managers”. 

The Federal Court did not find any fault in the approach that had been taken by the Tribunal, of limiting the analysis to a comparison between the occupation description in ANZSCO with the actual work and responsibilities of the position for which the visa is sought. 

The Federal Court held that there is no obligation on the part of the Tribunal to look beyond the occupation description in ANZSCO, and to go “higher in the hierarchy” of ANSCO to the work descriptions for Major Groups and Sub-major Groups”. 

The Court’s reasoning was that the 457 visa programmer is designed to address skills shortages only with respect to certain specific occupations, and for that reason the appropriate approach to be taken by the Tribunal is not to assess the genuineness of the position against the broader duties described for the wider range of occupations falling within the Major Group and Sub-major Group, but rather to look only to the ANZSCO description for the particular occupation for which the visa is sought. 

This decision certainly appears to provide some further definition and clarity concerning how the question of genuineness will be assessed, doesn’t it? 

Do you think this is the correct approach?

Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.

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