In recent months, we have encountered (really for the first time in our history) a spate of subclass 457 visa refusals based on the lack of genuineness or bona fides.
This obviously shocked our business to the core and as such we started to explore the reasoning and thought process involved with the recent decisions. In one application, the department stated the following:
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 operating environment, current practices, staffing composition, current and immediate future client commitments, and demonstrated financial position.
In that decision, the application was refused, inter alia, because the department considered that marketing was not a critical part of a newly established business despite a raft of evidence from clients of the sponsor confirming the nature of the visa applicant’s role together with independent industry staffing profiles, human resource guides et al which all indicated that a business required a marketing person particularly in the start up or growth phase. The decision suggested that marketing was unimportant and unnecessary and purported to argue that there could be no semblance of bona fides to such an application.
Contrary to that decision, we consider the Minister’s comments suggesting that the migration program is here to help foster economic growth:
“The visa system is a key enabler of Australia’s ability to attract and capitalise on the expertise and ideas of foreign innovators within a global marketplace.”
Clearly, we are at a cross roads economically and socially. On one hand, we are constantly bombarded by media and the need for economic growth and innovation whilst being hampered by bureaucracy to enable growth. And at this juncture, the department can wield some interesting powers. It seems that the immigration department are now human resource experts and understand how businesses operate at a granular and strategic level. By introducing the ‘genuineness test’ the department has effectively hijacked business’ decision making ability to hire overseas staff. This handicaps micro businesses as well as multinationals who crave certain skills at time critical phases in their growth and development.
What about an appeal?
Our legal system offers a review mechanism but as that process can take up to a year, we find a system that lends itself to a certain type of autocratic decision making without any genuine reprieve. It harks back to the days when discretion and departmental behaviour could skew the application of law to achieve a different outcome. Lengthy processing times, benefit to Australia test, genuineness are all embedded in the legislation and can be drawn upon at any time to sway the program and to flavour the sentiment of industry.
As it stands, clients have to think twice before considering expansion. Particularly if it involves overseas talent. That consideration is always thrice.
So, what’s the solution?
To be continued.