Employers wanting to nominate a foreign employee for permanent residency (subclass 186 visa) must prove that the employee is a ‘genuine need’ for the position available on an ongoing basis.
The ‘genuine need’ criteria is relevant to both the Temporary Residence Transition Stream and the Direct Entry Stream. There is a certain amount of confusion regarding the ‘genuine need’ requirement as evidence provided must be in the form of Labour Market Testing. This article will explain the ‘genuine need’ criteria and provide examples of what evidence can be utilised for the Department of Immigration to take into account.
Temporary Residence Transition Stream (TRTS):
Paragraph 5.19(5)(k) of the Policy for TRTS states that a nominator must have a genuine need to employ the person to work in a position under control.
Since the implementation of Temporary Short Skill (TSS) visa, there is no guaranteed pathway to permanent residency within Australia.
When assessing the ‘genuine need’ requirement, Home Affairs will consider the following:
- Must establish that there is a position available; and
- Verify the genuine need claims made in the subclass 457/TSS nomination.
This is different to the evidence required for Labour Market Testing for a TSS visa.
What Evidence will the Department Consider?
The application form provides answers to questions regarding the position in question. For example, the business structure, number of foreign employees and length of employment.
Providing a current annual financial report will give the case officers insight into the business and any increased activity. A business may find it beneficial to include documentation regarding expansion or any new projects the business may be taking on in the future. The Department will also take into account any negative impacts that may hinder the business if the application were to be refused.
Direct Entry Applications (DE):
The Department holds DE applicants to a higher threshold requirement as they are considered to be untested in the Australian Labour Market. The DE requirements are outlined below:
Scenario 1 – Perform Activities to lead or assist with diversification
An example of this would be a business currently running as a restaurant proposes a business development manager on the ground that they want to open several restaurants.
A case officer would take into account the business’s intention and financial capability to support such an expansion. Evidence that would be considered:
- Market research
- Business plans including expansion details and due dates
- Financial budgets including present and future revenue
- Proof of available funds such as bank loan statements
It is advised that any genuine need for DE applications be supported by a submission from the employer with appropriate evidence.
Scenario 2 – work within the new environment
An example here could be a fitness centre wanting a physiotherapist to diversify their business. The case officer would have to be content with the business’s capacity to diversify. The case officer would assess the following evidence:
- Business plans to include revenue and expenses
- The availability of the business premises
- Evidence of any purchased or lease equipment
- Proof of available funds such as bank loans
Any information that may not strengthen the case should also be presented to give the case officer a whole picture.
Any of the actions below by an employer gives evidence that the nominated position may not be genuinely needed:
- Cost-cutting in the last year
- Reduction of hours worked in the last year
- Reduction of pay and/or conditions in the last year
- Conditions that may be imposed on a temporary visa holder are less favourable than an Australian employee, or
- The temporary visa holder’s role is not within the scope of the business
Each case will be decided on a case-by-case basis which means it is imperative that any details regarding the business are correct.
If you require further information, please contact the friendly team at Results Migration. Call us on 1800 808 717 of email us on firstname.lastname@example.org and book your free consultation today!