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Genuine Position TSS 482, ENS 186, RSMS 187

The author has recently encountered an increase in the number of clients seeking assistance with refusals for nominations on the grounds of failing the ‘genuine position’ test.

The genuine position test is applied to nomination applications under Regulation 2.72(10)(f) of the Migration Regulation 1994.

The test states that an application must pass the genuine position test I order to be considered a bona fide position. This is as opposed to one that is simply created to achieve a migration outcome.

There are a number of triggers that departmental case officers observe when they are applying the test. These include such things as whether the visa applicant is a relative of the sponsoring business’ management, a misfit of the role to the business and discrepancies in pay for work performed.

Other ways in which the genuine position test is applied is in the emergence of the need for the role in the timeline of the business’ operations. For example, a position that is automatically required that is inconsistent with trading patterns or business history will be flagged for closer attention.

In order to minimise the risk of refusal, an application should be accompanied with a fair depth of supporting evidence of operational requirements for the role. This may include such things as evidence of increased work hours by existing staff or new contractual obligations with new or existing clients.

Nominating employers also need to be careful of incorrect occupation nominations. A genuine role in the business may attract a refusal when the role nominated has tasks and duties that apply to a different occupation classification.

The genuine position test may also risk the success of the nomination application where employment patterns of the business have changed in recent times. For example, retrenchments, changes to working hours and reduction in pay may cause a case officer to arrive at a conclusion that the position is not a genuine one.

If you have any doubts or concerns about the risks posed to your application through the application of the genuine position test, contact us to discuss your matter further.

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