The genuine position requirement is one of the most important criteria to meet if you are trying to secure a Temporary Skills Shortage (Subclass 482) working visa for your employee. As an employer, you must demonstrate that the position associated with the nominated occupation is genuine and that it has not been created to secure a migration pathway for the applicant. This means that you must satisfy the Department of Home Affairs (DOHA) that an existing position requires the nominee to undertake the duties of an eligible occupation.

This process usually involves providing supporting documentation and information about:

  • your business;
  • the nominated position; and
  • why the role is genuine.

This article will discuss the key factors of a genuine position letter that the DOHA will consider when assessing whether your nominated position is genuine.

Background of the Business

It is important to provide DOHA a summary of your business and its core activities. To do so, you should consider:

  • what the nature of the goods or services you provide is;
  • when you established your business;
  • where your business is located;
  • who is involved in the business; and
  • who your clients or customers are. 

This summary does not need to be extensive but it should provide the case officer with a quick overview of your business.  

This is particularly useful if your business is expanding and recruiting for new roles as part of the process. It is important that DOHA understands how this operation fits with the business’ overall operations.

Size and Scale of the Business

When assessing your application, the case officer will consider the size of your business and whether your business is financially capable of supporting the nominee. 

In this section, it is important to provide detailed information about your business, including:

  • how many employees you currently have;
  • what your annual turnover is; and
  • what your goal for the business is.

If you are operating a smaller business or a startup (i.e. you have been trading for less than 12 months), you must make your capability as a sponsor clear. You do not need to provide any information that you have already provided in your sponsorship application. 

An example of supporting documentation to address this criteria is a business plan.

However, it is important to address any significant business issues you have experienced and explain how you have addressed these issues.

For example, you should provide an explanation if:

  • there is a decline in the revenue;
  • your business has significant staff turnover;
  • there is concern that the industry you operate in is in decline; or 
  • you have previously reduced the working hours of an employee in the same or similar position. 

These factors may increase the chances of the position being found not genuine.

Description of the Position

You will need to provide a detailed description of the nominated position and explain how it fits within your business. You should clearly outline the:

  • overall purpose of the position;
  • duties within the role; and
  • experience, skills and qualifications required for the role.

Most importantly, the nominated occupation must be on an approved list of occupations and the position description must be:

  • consistent with the relevant Australian and New Zealand Standard Classification Occupation (ANZSCO) code; and
  • on the relevant skilled occupations lists (most managerial and professional roles and some technical are on the list). 

The ANZSCO outlines the skills and qualifications required and the tasks that are usually performed within the role.

Example

If your nominated occupation is a restaurant manager, this role is on the Short‑term Skilled Occupation List under ANZSCO code 141111. Therefore, the skills and qualifications you outline in your position description should be consistent with those under the ANZSCO code. 

Your nominated position may be found to be ingenuine if the duties that you have described: 

  • fall outside the ANZSCO description; or 
  • are exactly the same as the ANZSCO description. 

It is therefore important that your position description is not overly vague. Position descriptions also cannot be a direct copy of the ANZSCO guide.  

The case officer will also consider whether your nominated position fits within the nature and size of your business. 

Example

A business that operates a large number of car repair shops around Australia and nominates an accountant (ANZSCO 221111) to work in their head office is unlikely to raise concerns. However, it is still important to provide supporting documents to substantiate such claims, such as an organisation chart showing where the position fits within the business.

By contrast, however, a car repair shop with only two employees that nominates an accountant may raise concerns as to whether the nominee can perform the majority of the tasks ANZSCO outlines. The case officer will also consider whether the car repair shop would be able to afford to nominate an accountant. In this case, the correct role to nominate may be a bookkeeper instead.

If you need to fill an unusual position within your business, you should provide a detailed explanation as to why and how the role fits within the business. You may also need to provide additional evidence to demonstrate that the position is genuine. Such evidence may include:

  • copies of contracts to indicate increased demand for your goods or services;
  • an organisational chart to indicate how the position fits within the business; or
  • evidence that shows developing areas within the business.

Suitability of the Nominee

In this section, you will need to provide details of the nominee and explain why this person is the best person for the role. Reference should be made to the nominee’s:

  • specific skills and experience; and
  • contribution to the business.

You could refer to the nominee’s resume to demonstrate the skills they bring to the role. Nominated positions that are highly skilled with specific tasks outlined in ANZSCO (as opposed to broad, generic roles) will add weight to an assessment that your position is genuine.

You should also explain how your business will benefit from having this person in the nominated position. 

For example, you could say that this person has allowed you to expand your business operations and train more junior employees.

Other Risks and Refusal Factors

Certain factors may increase the chances of failing to meet the genuine position requirement. These include, but are not limited to where:

  • the nominee is a relative of the business owner;
  • there are many foreign workers employed in the business and no, or very few, Australian employees;
  • you made inappropriate or no recruitment efforts for the role; or
  • a reputable source indicates that there is an average or above-average rate of unemployment in the nominated occupation.

If any of these factors are relevant to your nomination application, this may prompt further investigation by the case officer. It is important to disclose this information upfront in your letter with as much supporting evidence as possible.

Summary

Information and supporting documents relating to the genuine nature of the role should conclude with a confirmation that the: 

  • nominated position is genuine; and
  • nominee is the best person for the role. 

You should satisfy the case officer that the:

  • nominated position aligns with the scope and scale of your business; and
  • nominee has the necessary skills and experience for the role. 

Importantly, the letter should be on your company letterhead and signed by an authorised person, such as the CEO, director or line manager.

Key Takeaways

As part of the nomination application under the TSS visa scheme, you will need to provide supporting documentation and information to demonstrate how you have met the genuine position requirement. The key factors that the case worker will consider when determining whether your nominated position is genuine are:

  • the nature of your business;
  • the size and scale of your business;
  • your description of the nominated position;
  • the suitability of the nominee; and
  • any risk factors that apply to your business. 

Supporting documents and information should: 

  • be tailored to and address the specific requirements of your business; and 
  • include as much supporting evidence as possible. 

If you have any questions about the genuine position requirement under the TSS visa, contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.

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