Visa 186 Nomination Refused: Appealing to the AAT

Can the AAT review a Visa 186 nomination?

When the Department of Home Affairs (DHA) refuses a nomination within the Visa 186 framework, the employer has the right to ask the Administrative Appeals Tribunal (AAT) to review the decision. This is a merits review, which means the AAT does not only check procedural validity but reassesses the whole case as a fresh decision based on the evidence.

The usual deadline to lodge an appeal is 28 days from the date the refusal notice is received. An appeal fee applies under the AAT fee schedule and may be partly refunded if the appeal succeeds.

Common reasons a Visa 186 nomination is refused

The DHA may refuse a Visa 186 nomination on a range of grounds, the most common of which include:

1. The position is not genuine: the DHA considers that the nominated position does not really exist, or was created only to support a visa. This reason often arises with small businesses, where the position is newly created, or where the job description does not match the registered ANZSCO code.

2. Labour Agreement conditions not met: for nominations under a Labour Agreement, the DHA may refuse if the agreement’s specific conditions are not fully complied with, or the agreement has expired.

3. The nominee is not eligible: although this relates to the nominated person, the DHA may refuse the nomination if the nominee clearly does not meet the skill, qualification or experience requirements set out in the case.

4. The employer is not eligible to sponsor: for example, the business is not lawfully operating, lacks a valid business licence, or is insolvent.

An evidence strategy for an AAT appeal

Success or failure at the AAT largely depends on the quality and completeness of the additional evidence compared with the original case. Some effective strategies:

• Analyse the refusal decision carefully: identify exactly what the DHA did not accept and prepare evidence to rebut each specific point.
• Add documents about the genuine position: a detailed job description, the organisational structure of the business, client contracts, evidence of revenue and real staffing needs.
• Evidence of business activity: financial statements, tax records, invoices and commercial contracts to show the business is genuinely operating.
• Statutory declarations: from the employer, colleagues or clients confirming the real role of the position.
• Expert industry opinion: especially useful where the ANZSCO code is in dispute or where the occupation has particular features.

Timeframes at the AAT

The wait at the AAT depends on the queue and the complexity of the case. Typically:

• A straightforward case may be resolved in 6–12 months.
• A complex case, or one requiring a hearing, may take 12–24 months or longer.

While the AAT is reviewing, the nomination is treated as pending and visa processing may be paused. The nominee is not required to leave Australia for this reason alone, as long as their current visa remains valid.

Success rates by ground of refusal

Success rates at the AAT for Visa 186 nominations vary quite widely:

• Genuine position: this is the hardest ground to appeal. Success requires very strong business evidence. The success rate is estimated to be low to moderate without legal representation.
• A technical condition overlooked: an appeal on the basis that the DHA assessed the evidence incorrectly or overlooked it tends to have a higher success rate.
• Nominee not eligible: if the issue is missing documents that can be supplied, the prospects are relatively good.

Overall, experienced legal representation in migration law at the AAT significantly increases the chance of success. The AAT may affirm the refusal, direct the DHA to re-grant, or itself decide to approve the nomination.

When the AAT refuses: next steps

If the AAT upholds the refusal, the employer may still consider an appeal to the Federal Court on points of law (judicial review), but this is a far more complex and expensive path. In practice, most cases will need an alternative solution, such as preparing a fresh case or switching to a different visa pathway.