Subclass 186 Nomination Refused: What Happens to the Visa Application and ART Review?

A subclass 186 nomination and a visa application are separate decisions

The Employer Nomination Scheme requires a qualifying employer nomination and a visa applicant who independently meets the relevant visa criteria. A favourable employment relationship is not a substitute for either approval. Home Affairs states that the employer’s nomination must be approved before the subclass 186 visa can be granted. That makes the nomination outcome central to the worker’s case, but the procedural effect of a refusal depends on what has actually been decided and whether the associated visa application is still pending. Obtain both applications’ transaction records, correspondence and decision notices before choosing a strategy.

Why an employer nomination may be refused

A refusal can arise from questions about the business, position, remuneration, occupation, genuine need, employment terms or the particular stream’s criteria. Some cases turn on documentary deficiencies rather than an absence of a genuine job. A generic employer letter saying the employee is valued will not resolve a specific market salary or occupation issue. Read each paragraph of the refusal record, identify the legislative criterion applied and separate findings of fact from the decision-maker’s legal interpretation. The review submission should respond to those findings with evidence.

Temporary Residence Transition versus Direct Entry

Subclass 186 Temporary Residence Transition and Direct Entry have different eligibility structures. TRT cases commonly involve the worker’s qualifying sponsored employment history and the employer’s continuing nominated position. Direct Entry can involve skills assessment and additional requirements, subject to exemptions. Do not assume that a worker who meets the TRT requirements can simply move to Direct Entry without considering age, skills, experience, English and other criteria. The same job title may require a different evidentiary strategy under a different stream.

Who can apply for ART review?

Review rights depend on the type of decision, the applicant or nominator’s circumstances, the applicable statutory provisions and any location or sponsorship requirements. A nomination refusal and visa refusal can have different review applicants and time limits. The decision notice should be checked immediately, including who has standing to apply. It is unsafe for the employee to assume they can review the employer’s nomination decision personally. Equally, an employer should not wait for a later visa refusal before investigating its nomination review rights.

Do not confuse a review application with a bridging visa

An ART review of an employer nomination does not automatically grant the employee a bridging visa. The worker’s status may depend on their own visa application, review eligibility and existing visa grants. If a substantive visa is nearing expiry, obtain VEVO records and legal advice about the actual bridging arrangements. An employer’s assurance that the ART case is pending does not establish lawful work rights or permission to travel. These issues should be managed in parallel with the merits of the nomination.

How to build the employer’s evidence bundle

A credible bundle can include financial statements, BAS, payroll, tax and superannuation records, organisational charts, position descriptions, recruitment evidence where relevant, client contracts, project forecasts and records of comparable Australian employees. Select documents to answer the specific reason for refusal. If the Department questioned genuine need, a current project pipeline may be more probative than a generic business brochure. If salary is the issue, focus on the contractual remuneration and defensible market salary comparison. Explain gaps honestly.

Example: nomination refused because the role is not genuine

A medium-sized technology business nominates a developer for permanent residence. The Department questions whether the nominated duties are really those of the selected occupation. The employer supplies a contract and a short reference but no project evidence. A stronger review case may require a detailed duty mapping, examples of actual work, reporting structure, technical systems and a credible explanation of the position’s ongoing need. Simply renaming the role or drafting a more impressive position description after refusal could damage credibility if it does not reflect real duties.

What if the employer has changed ownership or the worker resigned?

Changes after lodgement can affect the factual and legal basis of the nomination. A restructure, business sale, change of employing entity or departure of the nominated employee may require urgent reassessment. The consequences depend on the stream, decision stage and actual arrangements. Do not conceal a material change to preserve an application. Gather the relevant contracts, company records and employment correspondence and obtain advice about notification obligations, review strategy and whether a fresh nomination is viable.

Should you review or lodge a new nomination?

The choice is not purely about which option looks faster. Consider review rights, deadlines, legal merits, the employer’s capacity to correct an evidentiary deficiency, current nomination criteria, visa status and any costs of a new application. In some matters, a new application may address a changed position; in others, the original decision may contain a reviewable error. The strategy must also account for the employee’s existing visa and any section 48 or application-location issues. Avoid withdrawing a pending application before understanding the consequences.

How Emigrate Lawyers can assist

We can examine the nomination refusal record, identify review standing and deadlines, assess the employer’s evidence, and advise how the worker’s separate visa application is affected. We also advise on sponsor compliance, labour market salary evidence and alternative sponsored pathways. See our Subclass 186 Visa Lawyers service and our ART appeals guidance.

Frequently asked questions