Employer sponsored visa or nomination refused?

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Which decision was refused?

A visa cannot be granted without an approved nomination (cl 482.212(1), 494.213(1), 186.223(2)–(3)), so a nomination refusal usually decides the visa as well.

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Nomination refused: the position is not genuine

This is the most common reason a nomination is refused. For a 482 nomination the Department must be satisfied that the position associated with the nominated occupation is genuine and full-time (reg 2.72(10)). For a 494 it must also be likely to exist for at least five years (reg 2.72C(12)). For a 186 there must be a genuine need for the worker to be employed in the position, under the employer’s direct control (reg 5.19(5)(k), with equivalent requirements in the other streams). The 482 and 494 visa criteria repeat the test (cl 482.212(2), 494.213(2)).

The question is whether the position exists and is what the employer says it is, measured against the occupation’s description in ANZSCO. It is not an assessment of whether hiring the worker makes good business sense. The Department looks more closely where:

• the position may have been created to secure a visa for the worker or their family, for example where the worker is a relative or associate of someone in the business, or a director or owner of it;
• the business is very new, or employs few or no Australian citizens or permanent residents;
• the tasks of the position do not substantially match the occupation’s tasks in ANZSCO, given the size of the business and where the role sits in it;
• the position does not fit the nature of the business.

Evidence that helps includes an organisation chart, how the position contributes to what the business produces, whether the position existed before and became vacant, growth in business activity, the share of the workforce who are Australian citizens or permanent residents, and overtime worked by existing staff.

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Nomination refused: adverse information about the business

The Department must be satisfied that there is no adverse information known to it about the employer or a person associated with the employer, or that it is reasonable to disregard any that is known (reg 2.72(4), 2.72C(4), 5.19(4)(b)). The 482 visa has the same criterion about the employer (cl 482.216).

Adverse information is anything relevant to the employer’s suitability as a sponsor or nominator. It includes information that the employer or an associate (reg 1.13A):

• has contravened a Commonwealth, State or Territory law;
• is under investigation, subject to disciplinary action or subject to legal proceedings for such a contravention;
• has been the subject of administrative action, including a warning, by a regulator;
• has become insolvent;
• has given a bogus document, or information that is false or misleading in a material particular.

Because the test allows the information to be disregarded where that is reasonable, what the employer can show about what happened, and what has changed since, matters.

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Visa refused: skills, qualifications or work experience

For a 482 in the Core Skills stream the worker needs at least 12 months of full-time work (or the equivalent) in the nominated occupation or a related field, within the five years before the application. The worker must also have the skills, qualifications and employment background the Department considers necessary for the tasks of the occupation, and a skills assessment where one is required (cl 482.231). The Specialist Skills stream has the same skills test (cl 482.221).

The 186 Direct Entry stream and the 494 have their own skills assessment and work experience requirements. See the 186 and 494 guides.

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Visa refused: English language requirements

The worker must meet the English language requirements the Minister sets by legislative instrument, and demonstrate them in the way specified where asked to (cl 482.222, 482.232). The required test results and exemptions sit in that instrument, which changes, so check the version in force when the application is made.

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Visa refused: PIC 4020 and other integrity grounds

The Department must be satisfied that the applicant has not given a bogus document, or information that is false or misleading in a material particular. Most integrity refusals rely on it, and it can carry an exclusion period (Schedule 4, PIC 4020). It applies to the 482, 186 and 494 (cl 482.217 and the equivalent 186 and 494 criteria).

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Visa refused: health requirements

The 482, 186 and 494 require public interest criterion 4007. The applicant must be free from tuberculosis, and from any disease or condition that is a threat to public health or a danger to the community. They must also be free from a disease or condition that would be likely to need health care or community services that would result in a significant cost to the Australian community, or prejudice Australians’ access to those services (Schedule 4, PIC 4007).

A waiver of that last part is available in some circumstances (Schedule 4, PIC 4007(2)).

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What to do after a refusal

Read the decision letter and find two dates: the date of the decision, and the day you are taken to have been notified. Review time limits run from notification, and they are strict. Our refusals and review guide explains who may apply to the Administrative Review Tribunal and how long they have.

Representing you at the Tribunal is work a registered migration agent is authorised to do. Send us the complete letter as early as you can.

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Related information.