Introduction
A refusal of a Temporary Skill Shortage (TSS) subclass 482 visa can be a significant setback for both the sponsoring business and the visa applicant. However, a visa refusal from the Department of Home Affairs is not necessarily the end of the road, as a well-prepared refusal appeal can lead to the decision being overturned.
This guide is designed for both sponsors and applicants, breaking down the appeal process for both the nomination and the visa application. Success at the Administrative Review Tribunal (ART) often depends on a coordinated strategy, and this article provides the essential information needed to navigate the review process, address common reasons for refusal, and build a stronger case.
Understanding 482 Refusals: Nomination & Visa
A TSS Subclass 482 visa application consists of two distinct but linked parts. Understanding this dual structure is essential because a refusal can happen at either stage, which then determines who can appeal and on what grounds.
The two key components are:
| Application Component | Description |
|---|---|
| Nomination Application | Lodged by the sponsoring employer, this details the specific position, its duties, and evidence that the role meets the Department’s requirements. |
| Visa Application | Submitted by the prospective employee, this assesses the applicant against criteria related to their skills, work experience, health, and character. |
A crucial aspect of this process is that a valid nomination is a primary requirement for the visa to be granted. Consequently, if the employer’s nomination application is refused, the associated visa application will also be refused. This automatic refusal occurs even if the visa applicant meets all the personal criteria for the visa.
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Common Reasons for a Sponsor’s Nomination Refusal
Failing the Genuine Position Requirement
A frequent reason for a nomination refusal is the failure to prove that the position is genuine. The Department of Home Affairs must be satisfied that the role is truly necessary for the business and has not been created just to help the visa applicant migrate to Australia.
The Department assesses several factors to determine if a position is genuine, and a refusal can occur if there are inconsistencies. Common issues include:
| Common Issue | Explanation |
|---|---|
| Mismatch with Business Operations | The nominated role does not align with the nature and scale of the business (e.g., a small café nominating a Marketing Manager). |
| Inconsistent Duties | The proposed duties for the role do not match the standard tasks for that occupation as defined in the ANZSCO. |
| Unclear Business Structure | The sponsor fails to provide a clear organisational chart, making it difficult to understand the position’s role and reporting lines. |
Labour Market Testing (LMT) Errors
Sponsors are typically required to conduct Labour Market Testing (LMT) to show that no suitable Australian citizen or permanent resident is available to fill the role. The LMT requirements are strict, and even minor errors can lead to a nomination refusal.
Common mistakes that sponsors make during the LMT process include:
| Common LMT Mistake | Description |
|---|---|
| Incorrect Advertising Duration | Job advertisements were not run for the minimum required period of 28 days. |
| Missing Information | Advertisements lacked required details, such as salary (if applicable) or a sufficient position description. |
| Non-Compliant Platforms | Advertising was not placed on approved platforms, which must include the government’s Jobactive website. |
| Incorrect Timing | The LMT was conducted more than four months before the nomination application was lodged. |
Incorrect Annual Market Salary Rate (AMSR)
The salary offered for the nominated position must meet two key requirements. It must be above the Temporary Skilled Migration Income Threshold (TSMIT) and align with the Annual Market Salary Rate (AMSR), which is what an equivalent Australian worker would be paid for the same job in the same location.
A nomination application may be refused if the salary does not meet these standards. Common reasons for refusal include:
| Reason for Refusal | Description |
|---|---|
| Below TSMIT | The proposed salary is below the current Temporary Skilled Migration Income Threshold. |
| Insufficient Evidence for AMSR | The sponsor fails to provide adequate evidence (e.g., market surveys, comparable job ads) to justify the Annual Market Salary Rate. |
| Inflated Salary | The salary appears to be artificially inflated just to meet the TSMIT and does not reflect the true market rate for the role. |
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Common Reasons for an Applicant’s Visa Refusal
Lack of Relevant Skills or Experience
A visa applicant must demonstrate they possess the required skills and work experience for the nominated role. A visa refusal can occur if the applicant’s qualifications and work history do not match the occupation’s definition under the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
To meet the criteria, applicants generally need to prove at least two years of full-time, relevant work experience. A visa application may be refused if the evidence provided is insufficient or lacks detail.
Common issues that lead to refusal include:
| Issue Leading to Refusal | Description |
|---|---|
| Insufficient Reference Letters | Employment reference letters are not detailed enough to substantiate the work experience claimed. |
| Inconsistent Experience | There are inconsistencies between the applicant’s claimed experience and the duties outlined for the nominated position. |
| Lack of Verifiable Documents | The applicant fails to provide verifiable proof of employment, such as payslips, bank statements, or tax records. |
Character & Health Requirements
Every visa applicant, including any dependents, is required to meet Australia’s health and character standards, which are often assessed under section 501 of the Migration Act. The Department of Home Affairs will refuse a visa application if these requirements are not satisfied.
A refusal on character grounds can result from:
- A substantial criminal history
- Providing false or misleading information
Similarly, a visa may be refused on health grounds if an applicant has a medical condition that could represent a significant cost to the Australian healthcare system or pose a risk to public health.
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The ART Appeal Process for Sponsors & Applicants
Who Can Appeal What Sponsor vs Applicant Rights
The right to appeal a refusal decision to the Administrative Review Tribunal (ART) depends on which part of the application was refused and who was notified. The sponsor and the visa applicant have distinct and separate review rights, making a coordinated approach essential.
When it comes to appeal rights:
| Appealing Party | Scope of Appeal Rights |
|---|---|
| Sponsoring Business | The sponsor is the only party that can appeal a refusal of the nomination application. |
| Visa Applicant | The applicant is the party who must appeal a refusal of the visa application itself. |
An applicant’s location is also a critical factor. Generally, a visa applicant only is entitled to an ART review if they were in Australia when they lodged their visa application.
If the applicant was outside Australia, the Australian sponsor is typically the one who can apply for a review of the visa refusal.
In cases where both the nomination and the visa are refused, it is common for both the sponsor and the applicant to lodge separate appeals, which are often heard together.
Key Steps in the ART Merits Review
The ART conducts a merits review, which means it takes a fresh look at your case based on the facts and law. This process allows for the submission of new and updated evidence to address the original reasons for refusal.
The key steps in the appeal process include:
| Step | Key Actions & Details |
|---|---|
| 1. Lodging the Application | An appeal must be lodged online with the ART within a strict 21-calendar-day deadline from receiving the refusal notification. |
| 2. Paying the Application Fee | A fee of approximately $3,153 to $3,496 must be paid. A 50% refund is provided if the appeal is successful. |
| 3. Providing New Evidence | New, updated, and more detailed information should be submitted to the ART to support the case and address the reasons for refusal. |
| 4. Attending a Hearing | The ART may invite you to a hearing to provide oral evidence and arguments, though a favourable decision can sometimes be made without one. |
| 5. Receiving a Decision | The ART can affirm, vary, set aside, or remit the decision back to the Department of Home Affairs for reconsideration. |
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Evidence Checklist for a Stronger Appeal
Evidence for a Sponsor’s Nomination Appeal
When preparing a nomination appeal for the Administrative Review Tribunal (ART), it is crucial to provide new and more detailed evidence that directly addresses the reasons for the refusal. Compiling a comprehensive set of documents can significantly strengthen your case.
To prove a ‘genuine position’, sponsors should supply:
| Purpose of Evidence | Examples of Supporting Documents |
|---|---|
| Prove ‘Genuine Position’ | A detailed submission on the need for the role, updated organisational charts, recent financial records, and a comprehensive position description aligned with ANZSCO. |
| Address LMT Failures | Copies and screenshots of all job advertisements showing start/end dates, and a summary of the recruitment process justifying why local candidates were unsuitable. |
| Substantiate AMSR | Payroll reports showing salaries of equivalent Australian workers, data from reputable salary surveys, and relevant industrial awards or enterprise agreements. |
Evidence for an Applicant’s Visa Appeal
For a visa applicant, the appeal focuses on proving personal eligibility. Providing clear and verifiable evidence is key to addressing the Department of Home Affairs’ concerns.
To demonstrate the required skills and experience, applicants should provide:
| Purpose of Evidence | Examples of Supporting Documents |
|---|---|
| Demonstrate Skills & Experience | Updated and highly detailed employment reference letters, verifiable records (payslips, bank statements, tax records), a current CV, and certified qualifications. |
| Address Health or Character Concerns | Recent police clearance certificates from all relevant countries, updated medical reports from specialists, and written statements addressing specific concerns. |
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Conclusion
Successfully appealing a Temporary Skill Shortage (TSS) 482 visa refusal requires a coordinated strategy between the sponsor and applicant, as the process involves distinct nomination and visa components. Understanding the common reasons for refusal and the importance of acting quickly within strict time limits is essential for a successful outcome at the Administrative Review Tribunal (ART).
If you are facing a visa refusal and need expert guidance, contact Moya Migration Law’s TSS 482 visa appeal lawyers in Adelaide today. Our team offers trusted expertise and specialised services tailored to handling complex visa appeals, providing the hands-on advocacy needed to secure your best possible outcome.
