The Department of Immigration can use any 1 of the 9 reasons 186 Nomination/Visa refusal (pursuant to reg. 5.19(2) and 5.19(3) of the Migration Regulations 1994. If your employer’s ENS Subclass 186 Nomination is refused, the Department will also refuse your ENS Subclass 186 Permanent Visa application (click here to learn more about ENS Subclass 186 Visa Application under TRT stream or ENS Subclass 186 Visa Application under Labour stream or ENS Subclass 186 Direct Entry stream).
9 Reasons For 186 Nomination/Visa Refusal & How to Avoid
The followings are the 9 reasons for the Department to refuse a 186 Nomination application:
- Subclass 186 Nomination must be made online, prescribed fee must be paid, identified the nominee and the nominated occupation, no payment or benefit was received in return for nominating the nominee
- The nominator or the sponsoring company must be an approved standard business sponsor who is actively and lawfully operating a business in Australia
- If the nominee is a holder of a valid Class UC Subclass 457 visa or a GK Subclass 482 Visa (click here to learn more), s/he must have been employed for at least 2 years (if holding 457 visa) or 3 years (if holding a 482 visa) in the 3 years before making the nomination application. You should include the nominee’s initial Subclass 457 or Subclass 482 visa grant notification to show date, initial employment contract to show the employment starting date, job description, and terms and conditions of employment
- The employer must offer the nominee employment for at least 2 years and the employment can be extended or renewed. The employer must have the financial capacity to maintain employment over the contract term. The employer should provide:
- Employment contract;
- Lease agreement;
- Accountant’s Statement of Viability;
- P & L for at least the last 2 years;
- BAS for at least the last 2 years;
- PAYG for all employees
- Evidence of Superannuation contributions made for the nominee (if applying for ENS Subclass 186 TRT stream) for at least the last 2 years;
- Bank statements for at least the last 2 years showing wages and entitlements paid for employees
- The terms and conditions offered to the nominee must not be less favourable than those offered to an Australian citizen or permanent resident doing the same or equivalent work in the same workplace at the same location. Evidence provided should include:
- Recent salary survey information from Seek and Payscale (click here to find average salary)
- The employer must provide evidence of meeting training requirements. Evidence provided should include:
- Evidence of Training Expenditure for at least the 2 last SBS periods;
- PAYG for all employees for at least the last 2 years
- Evidence of Superannuation contributions made to all employees for at least the last 2 years;
- Evidence of Training Expenditure must include names of employees trained, eg invoices from training provider(s), training report detailing the name(s) of trainee(s) and their training outcomes
- The employer must not have any adverse information known to the Department of Immigration. Adverse information can include the employer or associated entity:
- has contravened a law
- is under investigation, subject to disciplinary action or subject to legal action
- has been the subject of administrative action, including being issued a warning, for a possible contravention of a law by a Department or regulatory authority that administers or enforces the law
- has become insolvent
- has given, or caused to be given, to the Minister, an officer, the AAT or an assessing authority a bogus document, or information that is false or misleading
- The employer must have a satisfactory record of compliance with workplace relations law.
- The employer must be actively and lawfully operating the business in Australia. Evidence that can be provided include:
- the person authorised to speak and make decisions on behalf of the employer (eg ASIC name extract)
- current and historical ASIC extract of the business
- Tax returns for at least the last 2 financial years
- Audited Profit and Loss statements for at least the last 2 financial years
- Audited Balance Sheet statements for at least the last 2 financial years
- BAS lodged with the ATO for at least the last 2 financial years
- Organisation chart showing the nominee’s position, all staff with their residency status (eg, Australian citizen or permanent resident or temporary visa holder)
- Employment contract or letter of engagement detailing the nominee’s roles and duties, terms and conditions of employment
The Department of Immigration can use any 1 of the above 9 reasons for 186 Nomination/Visa refusal. However, 1 of the most common reasons for 186 Nomination refusal is the employer has not demonstrated that it has the financial capacity to be able to pay the full-time salary for the nominated position for at least the next 2 years. In making this finding, the Department of Immigration will conclude that the employer has not demonstrated the employment will provide the nominee or employee with full-time employment for at least the next 2 years. Hence, concluding that the employer failed to satisfy r. 5.19(3)(d)(i) of the Migration Regulations.
Sometimes the Department may write to you to comment on certain information that may be the reason to refuse your visa application (click here to learn more).
You should note that if your visa application has been refused or your visa cancelled while you are in Australia, you may be prevented from lodging another visa application (click here to learn more about section 48 bar and visa application limitations).
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a free 15 minutes consultation to help you with reasons for 186 nomination/visa refusal. Click here to learn when and how you can apply for an AAT hearing.
041 222 4020 or WeChat: AUDvisa
This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.