494 Nomination Refusals: The Genuine Position Test Explained for Regional Employers

Before a worker can be granted a Subclass 494 visa, the regional employer’s nomination has to be approved. A key question is whether the position is genuine. This guide explains how the Department of Home Affairs assesses a 494 nomination in the Employer Sponsored stream, and what evidence helps an employer show the role is real.

What the Department checks in every 494 nomination

• the employer is an approved standard business sponsor (or a party to a labour agreement);
• there is no adverse information about the business or its associates, or it is reasonable to disregard it;
• the position is in a designated regional area at the time the nomination is made;
• the occupation is on the relevant list for the 494;
• the position is genuine, full time and likely to exist for at least five years;
• any unpaid Skilling Australians Fund (SAF) levy has been paid.

---

The genuine position test

The question is whether the role is real, not whether the business needs it. Under policy, decision makers do not second guess commercial decisions. They can usually accept the employer’s certification, especially where the role is highly skilled, clearly fits the business, had a previous occupant or was filled through open recruitment. Extra scrutiny applies where, in the last 12 months, the business has made Australians redundant, cut their hours or pay, or employs temporary visa holders on worse conditions.

---

Warning signs that trigger closer scrutiny

• the worker is a relative or associate of someone in the business, or is a director or owner;
• the worker already works for the business and their visa history suggests the main aim is to stay in Australia;
• the business is very new, for example set up a few months before the nomination;
• the salary is well below the industry standard, or unusually high for the market;
• turnover looks too small to support the proposed staff at the nominated salary;
• the business employs few or no Australians;
• the duties do not suit the size or nature of the business, for example a general manager for a two person business.

A business owner sponsoring themselves is not ruled out, but it is closely examined. A sole trader cannot nominate themselves, because there is no employment contract.

---

Duties must match the occupation

Decision makers look past the duty statement to what the worker will actually do, where the role sits in the business and what other staff do. Most of the worker’s time should be spent on the tasks of the nominated occupation. Task lists copied straight from ANZSCO, and broad occupations such as general manager or marketing specialist, attract more questions. See 494 occupations list.

---

Evidence that supports a genuine position

Evidence	Why it helps
Organisation chart	Shows where the role sits and who it reports to
Explanation of the business and the role’s contribution	Links the position to real business activity
Evidence the role existed before, or became vacant	Shows the position is not newly invented
New contracts, growth in customers or trading hours	Supports the need for an extra worker
Recruitment and advertising records	Shows an open process was followed
Third party documents, such as contracts or purchase orders	Independent evidence carries more weight

---

Full time and five years

Full time generally means 38 hours a week, or between 32 and 45 hours under an award or agreement. Regular excessive hours are a concern. The employer must also declare that it reasonably believes it will provide full time work for at least five years, and this is usually accepted unless there is evidence to the contrary.

---

Employment contract and associated entities

The worker must be an employee of the sponsor, or of an associated entity, under a signed written contract that does not rule out extending the employment. Contracts for services and ABN contractor arrangements do not qualify. A permanent ongoing contract is the simplest option.

---

Salary and the Regional Certifying Body

The worker must be paid at least the annual market salary rate, meaning what an Australian would earn for the same full time work in the same workplace and location, and at least the relevant income threshold. If you employ an Australian in an equivalent role, their pay is the benchmark. Otherwise you can use at least two sources, such as the relevant award or agreement, salary data, or job ads from the last six months for the same regional location. Salaries of $250,000 or more are exempt from these salary rules. See how the annual market salary rate works.

For Employer Sponsored stream nominations, a Regional Certifying Body in the same state or territory must advise that the worker will be paid at least the market rate. The advice must be dated no more than 3 months before the nomination is lodged. The Department usually gives it significant weight, and must give the employer a chance to respond before refusing because of negative advice. See Regional Certifying Bodies compared.

---

Other conditions the Department checks

The worker’s other terms and conditions must not be less favourable than an equivalent Australian’s, and the business must not use recruitment practices that discriminate on the basis of citizenship or visa status. Labour market testing is also required for Employer Sponsored stream nominations unless an exemption applies. See labour market testing and the SAF levy for 494 employers.

---

What you should do now

• Write a business specific submission: explain why this role exists in your business now.
• Benchmark the salary: use an equivalent Australian worker’s pay where you have one.
• Get RCB advice early: it must be dated within 3 months of lodging.
• Use a proper employment contract: contractor arrangements do not qualify.