I am sure you would relate to this article if you are a practicing migration agent dealing with 457 visas and the transition of 457 to ENS visa . In case you are not a migration agent, you can still relate to this if you recently applied for your 457 or the transition from a 457 to ENS visa after completing two years on your 457 visa and your nomination was refused due to trivial reasons provided by the delegate.
There has recently been a lot of noise created by the news that the Department is in the process of reviewing the CSOL list but what’s surprising to me is that hardly anyone is talking about the real issue with the 457s and the ENSs.
The Department in it’s very usual manner has passed on a strong message to the sponsors by going on a rampage in refusing the 457 and ENS nominations especially the 457 to ENS transitions. Migration agents have been discussing horror stories where the delegates have refused the nominations because of reasons unheard of in the past.
The reasons for refusals are ranging from training benchmark not being met although the sponsor and the migration agent believed otherwise. Another flimsy reason is that the delegate believes that the business hasn’t got the financial capacity to sponsor the nominee although the business has been running successfully since people my age were in their nappies.
My favourite pick amongst all of these reasons is the ” Genuine Need for a Paid Employee” requirement which I am sure has stung almost all of us in the migration agent fraternity. This is an area where the migration agent ( and the applicant ) are at the mercy of the delegate’s discretion . It’s a well known fact that this very grey area has been used and abused by the Department and often leads to a refusal unless the sponsor makes the delegate believe that the Nominee is as dear to them as their own kids and he/she is the only person who would take care of them in their yesteryears. In case you think I was being sarcastic, this very reason was suggested by one of my clients who badly needed the services of a Motor mechanic at a busy workshop in Melbourne.
Please don’t get me wrong . I am no way condoning a process where the Department should not be conducting any probity checks to curb the 457 or ENS rorting. The point I want to make is that may be it is a great idea to not apply a ” one size fits all approach ” and view every case on it’s merits.
My recent conversation with a well known immigration law specialist in Melbourne was indeed very interesting. I can’t name the gentleman as I haven’t got his permissions to do so . He said he believes that the Department has got a very uncanny habit of trying to let loose on a particular visa class and after a specific timeframe try to be in the damage control mode by refusing the visas left, right and centre .
I strongly believe that most of these cases would be remitted back by the AAT which would be followed by the AAT providing the Department with some harsh feedback in terms of unnecessarily increasing it’s workload where a fair decision could have been made at the very first go.
Having lamented enough at the recent trend observed, I think it’s imperative to share the ” Must do ” list which would help achieve a successful outcome . I personally will put my 2 cents on having these checks in place to present a strong case. So here we go.
- Every effort should be made to make sure that the application is decision ready and all the required documents have been attached immediately after the application is lodged. There is no harm in attaching documents which may not be in the checklist but may help present a strong case .
- Sponsors should make sure that the Training Benchmark is met year after year and is not left to the last moment. A very important point to note here is that the training expenses could only be claimed for training provided to Australian Citizens or permanent residents only .
- In case of new businesses, the most recent financials should be in sync with the business plan that was submitted when the initial 457 visa was lodged.
- In case of established businesses for the last few years, the financials should be able to justify the proposed salary of the 457 and ENS applicants.
- Submissions regarding ” Genuine Need For a Paid Employee ” should be robust and thorough enough to convince the delegate that the services of the nominee would add value to the business. Needless to say that poor quality submissions would lead towards a refusal. The fact that the case officer has asked for the submission even when it was submitted initially is the best proof of a low quality submission.
- Organisational chart should clearly highlight how the proposed position would fit within the business . It’s a good practice to add a submission related to this which also explains any sharing of duties between the employees or their superiors.
- Last but not the least, add photos of the workplace including the signage, staff time sheets, any recent resignations from the positions similar to the proposed position .
The video below ( although in Hindi ) would be quite handy to help avoid some of the common errors whilst lodging the 457 visa application.
The key to success at the moment lies in being very articulate with the presentation and leaving no room for the case officer to dig deeper.
That’s all from me in this edition . Would love to hear your comments or recent experiences on the same topic. More from me next week. Till then prepare for the worst and hope for the best.