What to do when an employer nomination is refused on the genuine position test

An employer nomination is refused most often because the Department is not satisfied the position itself is genuine, rather than because the applicant is unqualified. Where an Employer Nomination Scheme (subclass 186) nomination has been refused on the genuine position test, there is generally a right of merits review in the Administrative Review Tribunal, and the deadline to use it is short and fixed. Below is what the genuine position requirement asks, why a signed certification does not answer it, and how the appeal works.

What the genuine position requirement asks

For a subclass 186 nomination, the approval criteria sit in regulation 5.19 of the Migration Regulations 1994. Among them is the requirement that the position associated with the nominated occupation is genuine. It is a substantive test.

A genuine position is one the business needs filled by a paid employee, on an ongoing basis, doing the work described in the nominated occupation. The occupation for a Direct Entry nomination must sit on the relevant list, currently specified in the Migration (Specification of Occupations and Relevant Assessing Authorities, Subclass 186 Visa) Instrument 2024 (F2024L01618). Being on the list is the starting point. The harder question is whether the role, as it exists in the business, matches that occupation and reflects a real commercial need.

The Department looks past the job title to the substance. It asks whether the tasks the person will perform correspond to the ANZSCO description for the nominated occupation, whether the business is large enough and active enough to support the role, and whether the position would exist regardless of the visa outcome. A role that appears to have been created to secure a visa, rather than to meet a business need, will not satisfy the test.

Why a signed certification does not settle it

Many refusals surprise employers who have certified in writing that the position is genuine. That certification carries weight, but it is not the end of the inquiry.

The Federal Court made this clear in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, where the Court confirmed that a sponsor’s written certification that a nominated position is genuine is not conclusive. The decision-maker must independently assess genuineness and whether the tasks correspond to the nominated occupation. A sponsor cannot certify its way past a mismatch between what the business does and what the occupation describes.

Evidence therefore matters more than assertion. A statement that the role is genuine, unsupported by financial records, an organisational structure, position descriptions and a coherent account of the business need, invites refusal. The Department is entitled to test the claim, and if the material does not stack up, the certification will not save the nomination.

Common reasons a nomination fails the genuine position test

Refusals under the genuine position requirement tend to cluster around a few recurring problems, and recognising them is the first step to meeting them on review.

The tasks do not match the occupation. This is the most frequent issue. The nominated ANZSCO occupation carries a defined set of duties, and where the actual role involves substantially different or lower-skilled work, the position is not genuine for that occupation. A “Marketing Specialist” nomination fails if the day-to-day work is general administration or reception.

The business cannot support the role. A small or newly established business nominating a senior position may struggle to show the role is genuine and ongoing, particularly where turnover, staffing levels or the nature of the operation do not point to a real need for that seniority.

The position looks contrived. Where a role is newly created around a particular applicant, or the duties appear inflated to reach the skill level of an occupation on the list, the Department may conclude the position exists to support a visa rather than to serve the business.

Inconsistent evidence. Contradictions between the position description, the employment contract, the organisational chart and the business’s own website or advertising undermine the claim that the role is genuine as described.

How to appeal to the ART

A refused subclass 186 nomination decision is generally reviewable on the merits in the Migration Jurisdictional Area of the Administrative Review Tribunal. Merits review means the Tribunal stands in the shoes of the original decision-maker and decides the nomination afresh on the evidence before it, including new evidence the applicant provides. It is a second decision on the merits, and it goes further than a check for legal error.

Two features of the process require close attention.

The review right belongs to the employer, and the deadline is strict

For an employer nomination refusal, the person who may apply for review is the nominator, meaning the sponsoring business, not the visa applicant. Where the working relationship has soured, this creates real risk, because the applicant cannot force the employer to lodge. Confirm early who will run the appeal and secure the employer’s cooperation before the clock runs out.

The time limit to apply is set by statute: under section 347(3) of the Migration Act 1958, the application must be made within 28 days after the day the nominator is notified of the decision, and section 347(5) removes the Tribunal’s power to extend that period. The Federal Court confirmed in Khabra v Minister for Immigration and Border Protection [2015] FCA 1405 that a statutory time limit of this kind is jurisdictional and cannot be extended, however sympathetic the circumstances. A late application is no application at all. Calculate the deadline the moment the decision arrives and lodge well inside it.

Come ready to answer the actual reasons for refusal

At review, the applicant must engage directly with the specific concerns that led to the refusal. The refusal decision record identifies the issues the decision-maker was not satisfied about. Those are the issues to meet with evidence.

The Tribunal is also required to give the applicant a fair opportunity to respond to the matters on which its decision may turn. The High Court held in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 that where a decision turns on specific issues, the applicant must be given a genuine chance to address those issues. Use that opportunity. If the Tribunal raises a fresh concern at hearing, the applicant is entitled to respond to it, and should ask for time to provide further material where needed.

Strengthen the record with the evidence the original decision lacked: audited or management financial statements, a detailed and accurate position description mapped against the ANZSCO occupation, an organisational chart showing where the role fits, evidence of the business’s activity and need, and a clear explanation of why the position exists independently of the visa. The aim is to leave the Tribunal in no doubt that the role is real, ongoing and correctly classified.

Be realistic about the room for movement. Merits review corrects an assessment on the evidence; it does not lower the standard. The genuine position requirement must still be satisfied. If the fundamentals do not support the role, better presentation will not manufacture a genuine position.

What to do now

If a nomination has been refused, read the decision record carefully, identify exactly which limb of the genuine position requirement the Department was not satisfied about, and confirm who holds the review right and by when it must be exercised. Then build the evidentiary case the first application was missing. The same discipline applies whether the refusal concerns a subclass 186 nomination or a related employer sponsored pathway.

Visa Plan Lawyers advises employers and applicants on employer nomination refusals and represents them at the ART. To discuss a refusal and the review options, book a consultation, or see our employer sponsored visas service, our guidance on the subclass 482 Skills in Demand visa, and our skill assessment resources.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.