The Temporary Skill Shortage (subclass 482) (TSS) visa is a popular employer sponsored visa that allows eligible foreign workers to live and work in Australia temporarily, and in some cases, can lead to permanent residence.
While the TSS visa is a popular choice for skilled workers and employers, obtaining a TSS visa is not always a straightforward process. It is important to note that the visa has strict eligibility criteria, and a refusal may have serious consequences.
Understanding the common reasons for a TSS 482 visa refusal
Some of the more common reasons for a TSS visa refusal include the following:
1. Failure to demonstrate genuine position
A major reason for a TSS visa refusal is when the sponsor fails to demonstrate the genuine need for the full-time position being nominated.
With the TSS program, the Australian government aims to ensure employers are bringing in skilled workers to work in genuine positions where they cannot source an appropriately skilled Australian. Thus, sponsors must prove that the nominated position is necessary for their business, and there is a genuine need for it.
The Department of Home Affairs assesses the genuineness of the position being nominated, taking into account factors such as the size, scale, and nature of the business. There may be concerns if it is suspected that a business has “created a position” to facilitate the entry, or stay, of the visa applicant, or nominates a position that does not match an eligible occupation as described in ANZSCO, despite the job title or stated duties.
For instance, nomination of a Landscape Architect or a Multimedia Specialist by a physiotherapy practice would not, on face value, be consistent with the nature of the business. Similarly, a small business has nominated a Customer Service Manager but already has several Customer Service Managers working for them, may prompt further investigation.
To prevent such refusals, it’s essential to identify these risks at the outset of the application and address them in the nomination submission.
2. Incorrect ANZSCO occupation alignment
One of the requirements for obtaining a TSS visa is that the applicant’s occupation must align with the Australian and New Zealand Standard Classification of Occupations (ANZSCO) codes. If an applicant’s occupation does not align with an ANZSCO Code that is eligible for the TSS visa, the visa can be refused. The tasks for the nominated position must be equivalent, or substantially equivalent to the tasks listed in ANZSCO for the nominated occupation.
It is expected that most of the visa applicant’s time will be spent performing the tasks of the nominated occupation and only limited or ad hoc time would be spent doing other tasks. For instance, if a mechanic business with only two employees nominates a Corporate General Manager, this is likely to raise concerns as to whether the nominee will actually be performing the full range of duties of a Corporate General Manager.
To avoid this situation, it is important to carefully choose the ANZSCO code that best matches your occupation and provide evidence that your job duties and responsibilities align with that occupation. It may also be helpful to provide an organizational chart to show where the position fits within the business.
3. Failure to meet the skills requirement
To be eligible for the visa, applicants must show that they have a minimum of 2 years’ experience working in the nominated occupation or a related field. This is generally proved by providing a CV and employment reference letters. In some cases, evidence of paid employment such as payslips, bank statements and tax documents may also be required.
The work experience must be gained at the appropriate skill level for the occupation which is indicated by ANZSCO. The Department of Home Affairs considers the ‘Indicative Skill Level’ specified for the nominated occupation in the ANZSCO which states the level of qualification and/or the number of years of experience a person should have in order to be able to perform the occupation.
The applicant may fail to meet the skills requirement if they have insufficient qualifications, or lack of relevant work experience.
4. Failure to meet the health or character requirement
An applicant must meet certain health and character requirements. These requirements are put in place to ensure that the visa holder does not pose a risk to the Australian community and that they are health enough to work in Australia.
The reasons for refusal may vary, but some common reasons are:
- Health issues: if an applicant has a medical condition that could pose a risk to public health, cause a burden on the Australian health system, or requirement significant healthcare costs, the visa may be refused.
- Criminal history: if an applicant has a criminal history including convictions for serious offences, they may not meet the character requirements for the visa.
- False or misleading information: if an applicant provides false or misleading information about their health or character, their visa application must be refused.
5. Failure to meet the Labour Market Testing requirements
Unless exempt, Australian sponsors must undertake Labour Market Testing (LMT) to demonstrate that they have advertised the position to the Australian labour market within four months of submitting the nomination application. The advertisements must adhere with specific requirements and run of a minimum period of 28 days
It is necessary to conduct LMT in accordance with the Department of Home Affairs’ strict requirement, and any mistakes in advertising can result in the rejection of the nomination application by the Department. This includes failure to undertake the LMT in accordance with the requirements, or inability to provide evidence that they have advertised the position to the Australian labour market and a suitably qualified and experienced Australian worker is not available to fill the position.
It is important to understand the purpose behind the LMT requirements, which is to necessitate a genuine effort to find a suitable candidate for the role before offering the TSS position to the nominee.
Concluding remarks
In conclusion, there are many reasons why a TSS visa application may be refused, and the above list is only a few of the common reasons. Applying a TSS visa can be a complex and challenging process, but by understanding the common reasons for refusals, applicants can take steps to increase their chances of a successful application.
It is important to seek the advice of an experienced immigration professional who can guide you through the application process and address any potential issues that may arise. At Migration Affairs, we have a team of experienced immigration experts who are dedicated to helping our clients achieve their immigration goals. If you are an employer looking to sponsor foreign workers, or are a visa applicant seeking a TSS visa, we are here to help.
Contact us today to schedule a consultation and learn more about how we can assist you on your immigration journey.
This newsletter should not be construed as legal advice and to obtain current information, please seek the advice of an immigration professional.