As a young lawyer working in the International Assignment Services division of a Big 4 accounting firm, I was faced with the daily challenge of balancing production and quality (not much has changed really). On one occasion, I recall handing my senior a seven page submission for a concessional resident return visa atop twenty items of evidence and the incredulous look on his face as he declared “you don’t need a Rolls Royce, when you can get by with a Mitsubishi”.
I replied: “fair enough” and walked over to 26 Lee Street to lodge (by hand) my senior’s abridged version of the aforementioned concessional resident return visa application. After collecting a number, I was called a few hours later and was promptly met with derision by the counter staff for presenting an application that had not properly addressed the key factors which warrant the grant of a concessional resident return visa. I was then berated by a team leader after I made oral submissions on how my client had strong employment and family ties and that it would be a grave mistake to refuse the application. “Don’t tell us how to do our job!” was the response. I stood my ground and asked for permission to submit further evidence as I knew that there was much additional evidence to provide and refusing the application would only land it in the (now defunct) Migration Review Tribunal thereby creating unnecessary work and delays for the Government and our client. Fortunately, cooler heads prevailed that day and I was granted an opportunity to provide further submissions by close of business.
I raced back to the office and quickly printed off my seven-page submission addressing precisely how our client had made a primary identification with Australia which was supported by a myriad of substantial ties crossing employment, cultural and family aspects. I pulled out the character references from family and friends and bundled them together with my client’s employment records and personal assets which I then handed back to my senior, who promptly signed the submissions without nary a mention of that Rolls Royce staring back at him.
The balance between advancing a client’s case and finding production efficiency has long been the challenge for any corporate immigration practice. Whilst high volume engagements can often result in a minimalist approach to visa processing, it is evident from recent processing behaviour that the immigration department is slowly (but surely) returning to an environment where the onus is entirely on an applicant to convince a decision maker of his or her eligibility, and this is particularly true when it comes to genuineness under the subclass 482 visa. Whilst this has fundamentally always been the case, long gone are the days when a work visa application could rely solely on an employment contract, CV and passport.
So, what exactly is a genuineness submission under the subclass 482 visa program?
As the name suggests, a genuineness submission or genuine position submission seeks to elicit from the employer, genuineness on a number of fronts, inter alia:
- how a position arose within the business;
- the decision-making process taken to hire the nominee.
In dealing with the first proposition, employers are often asked to address a range of considerations with many (seemingly) arising from a misguided understanding of business. To illustrate you will find below an extract from a departmental request:
- an explanatory statement and/or evidence that shows that the position has not been created for the purpose of facilitating the entry to, or stay in, Australia for your nominee
- an explanatory statement and/or evidence that the tasks of the position are consistent with the tasks of the nominated occupation as listed in the ANZSCO when taken in the context of where the position will be performed
- an explanatory statement and/or evidence that the position is consistent with the nature of the business (for example, explain why it fits within the activities of the business and how the business can support the position)
- an explanatory statement and/or evidence that describes the core activities of your business
- a structure chart for the business including full names of current employees and details of any visa held, which indicates how the position fits into the business activity
- an explanation of the split in duties between the nominated position and that of their direct supervisor
- an explanation of how duties will be shared between the nominated position and existing positions at that level in the business
- an explanation of the percentage of time expected to be spent on the tasks you have outlined that the nominee will be undertaking
- a workforce breakdown which indicates how many employees your business has and the ratio of Australian citizens / permanent residents to temporary visa holders
- a description and photographs of the setting in which the tasks will be performed
- financial records (independently verifiable where possible) which demonstrate that the business can support the nominated position
- if the position has been previously occupied, evidence of this and a statement of reasons why it has become vacant
Hmm… where are the keys to the Rolls Royce when you need them?
How are jobs created? It would seem that the immigration department assumes that unless otherwise evidenced, most positions requiring sponsorship have been created for the purpose of facilitating entry and stay in Australia and not for genuine resourcing needs. The resulting position taken by the immigration department has also led to the reintroduction of labour market testing (more on this later).
Now let’s look at the second proposition which may seem simple enough, but on closer inspection it really becomes a question unto itself that might prod into proprietary knowledge and essentially confuse the decision maker.
What thought processes does a business, wait – do businesses’ think? People think. Let me rephrase, what thought processes do business leaders and managers undergo to decide whether or not to hire:
- Growth – fiscal or production?
- Backlog of work – inefficiencies?
- Work life balance for existing staff?
- Exit strategy – directors looking to exit?
- Departure of key personnel – management exit?
- Labour market considerations.
There may literally be a hundred different variations of why a position has arisen within a business and why a decision has been reached. Often, it is privy to the needs of a single stakeholder willing to take a punt that a decision of this nature may or may not lead to some tangible benefit for the business.
Business is competition. There is no business without competition and with 75% of businesses purportedly going bust within 2 years, a simple hiring decision can often (albeit subtly) be the life or death of a business. The collaborative and collective energy that is created by the right mix of people can be dynamite for a team – which is why there is a growing theme in human capital circles that validate the value of hiring the right mindset as opposed to the right skillset. More importantly, business owners are placing trust and authenticity above all else as a necessary quality to team building. How does trust translate in a visa application when the stance taken by the immigration department is one of a lack thereof?
Now where does this leave us?
Basically, a request of this nature (which is becoming the norm) results in a hill to climb and it is best to start recording how positions emerge within your business’ organisational blueprint as a normal part of operations. Whilst financials are perhaps the most appropriate objective evidence of growth (and thereby need), it is not the only way of explaining the rationale behind sponsoring an overseas worker.
Some other items of evidence may include:
- New contracts;
- Departure of existing staff;
- Labour market reports on skills shortages;
- Organisational structure and industry standards on human capital needs;
- Labour market testing.
On the final item of evidence, we note that the immigration department has introduced this as a mandatory requirement to prove that a position is genuine. To a lay person, this might appear logical but let us ponder alternate recruitment processes as outlined by the Australian Government
Other ways to find staff
Aside from finding staff through advertising, other methods you can use include:
- searching for job seekers with the skills you need through professional networks or communities
- finding workers through your family and friend networks
- taking on employees through programs such as Australian Apprenticeships.
As a business owner, my first point of call when seeking new staff is and always my immediate professional network. For micro businesses and small businesses, the urgency of hiring is critical as the opportunity cost is generally higher.
So does this mean if a small business owner identifies a candidate through her business network, the requirement for labour market testing is waived? The answer is no. Unfortunately, the requirement remains and what transpires is a futile process of advertising a role which cannot be filled because it is already filled. Does this not sound like a complete waste of time and resources to you?
It does to me and for the sake of business agility, it would show a real understanding of business if the immigration department could consider further waivers for labour market testing so that business (and in particular the engine room of our economy, i.e. small business) is not hindered by a process with no real benefit.
It’s a bit like driving a Rolls Royce when a Mitsubishi will do.