186 Nomination Refused? Procedural Fairness and Review Rights

A refused 186 nomination usually means the visa cannot be granted. Before refusing, the Department must treat the employer fairly, and after a refusal the employer can usually seek review. This guide explains how the process works.

Procedural fairness before a decision

The Department’s instructions say common law natural justice applies to 186 nominations. The employer is entitled to know the critical issues and any adverse information that is credible, relevant and significant. If a refusal would rely on third party information, such as a tip-off or a report from another agency, it must be put to the employer with a reasonable time to respond. Sometimes only the gist of confidential information is given.

Your response matters. A clear, well evidenced reply to a request for information or a natural justice letter is often the best chance of avoiding refusal.

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The decision

A nomination must be approved in writing if it meets regulation 5.19, and otherwise refused in writing. A refusal includes reasons and a statement that it is reviewable. The notice goes to the employer, or to someone they have authorised, such as their migration agent.

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Review at the ART

A refused 186 nomination is reviewable by the Administrative Review Tribunal (ART). Only the employer can apply. Time limits are strict and are set out in the refusal letter.

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What happens to the visa

• the visa cannot be granted without an approved nomination;
• if the nomination is under review, the visa application may remain undecided until the outcome;
• a new nomination cannot be linked to the existing visa application, so a fresh nomination usually means a fresh visa application. See linking new nominations;
• if the nomination is refused because of information about the worker, that information may also be passed to the visa decision maker.

For the 482 equivalent, see 482 nomination refused or withdrawn.

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What you should do now

• Respond to requests fully: answer every concern in a natural justice letter, with documents, by the deadline.
• Read the refusal reasons: decide whether a review or a new, stronger nomination is the better option.
• Act on time: the review deadline is in the refusal letter and is strict.
• Coordinate the visa: check the effect on the worker’s visa and bridging visa before deciding.