Refused?

Why it was refused

The delegate refused the visa because the evidence available did not demonstrate the applicant had worked in the nominated occupation, or a related field, for at least two years, as required by cl 482.231.

What was put to the Tribunal

• The applicant had accumulated more than two years of relevant experience across three employers
• Detailed employer reference letters and duty descriptions confirmed the roles matched the nominated occupation
• Supporting financial and tax records corroborated each period of employment

The evidence that mattered

• Recommendation letter and translated employment records from an overseas employer covering an Electronics Technician role
• Employment offer letter and position description from an Australian data-centre employer
• Weekly payslips and matching bank statements from a subsequent Australian employer
• Income tax returns showing relevant salary and business income across the periods claimed

How the Tribunal decided

The Tribunal reviewed employment evidence from three periods of work and found that, added together, they established at least two years in the nominated occupation or a related field. It expressly did not rely on a set of invoices from a purported employer because it could not verify that entity on ASIC or ABN Lookup, and the ABN used belonged to an unrelated sole trader — the Tribunal flagged reliability concerns about those documents but still found the requirement met from the other evidence.

What this means for youIf your two years' relevant experience spans several employers, detailed reference letters matched with payslips, bank records and tax returns for each period can add up to satisfy the Tribunal — but shaky or unverifiable documents can undermine the rest of your case.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because, while accepting some graphic design work had been done, they were not satisfied the scale or complexity of the business supported an ongoing need for a full-time graphic designer, considering the work could instead be done ad hoc, part-time or outsourced.

What was put to the Tribunal

• The business has grown into a multi-site retail and franchise operation with an ongoing, recurring need for graphic design across stores, digital platforms and campaigns
• 43 documented design projects show a genuine, recurring workload, not occasional work
• The role is a distinct position in the organisational structure, with no other marketing or brand function duplicating it
• The duties substantially align with the ANZSCO description for Graphic Designer
• The fact that design work could theoretically be outsourced does not mean the position is not genuine

The evidence that mattered

• Company tax returns, financial statements and Business Activity Statements showing turnover growth from about $2 million to nearly $4 million
• Organisational chart showing the role’s place in the business
• Full-time employment contract and position description for the nominee
• Brand guidelines and examples of monthly social media content planning
• An inventory of 43 completed graphic design projects across 10 categories
• Evidence of the business’s growth across multiple retail and franchise locations

How the Tribunal decided

The Tribunal assessed genuineness qualitatively, applying Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the business had grown into a multi-site retail and franchise operation with a recurring, organisation-wide need for visual communication and branding work, evidenced by 43 documented projects and detailed brand guidelines. The Tribunal held that the possibility work could be outsourced did not make the position not genuine, and found the role’s duties substantially aligned with the ANZSCO description for Graphic Designer, so the position was genuine and full-time.

What this means for youA detailed portfolio of completed work, brand documentation and evidence of business growth can overcome a ‘not genuine position’ refusal, even for a role that could theoretically be outsourced.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they were not satisfied the duties and responsibilities to be performed by the nominee were substantially aligned with the ANZSCO occupational guidance for an Information and Organisation Professional (NEC).

What was put to the Tribunal

• The role was a genuine, specialist data collection and analysis position supporting management decisions
• The business had grown in scale and complexity since COVID, creating a real need for a dedicated data function
• The nominee’s duties matched the broader ANZSCO unit group description of analysing and managing information to advise on business methods
• There was no prior personal relationship with the nominee and the position was not created to secure a migration outcome
• The position was, and would remain, full-time

The evidence that mattered

• ASIC and ABN business registration records
• Financial statements and Business Activity Statements showing turnover in the millions
• Organisational chart
• Employment contract and income statements for the nominee
• Oral evidence from the managing director at hearing

How the Tribunal decided

Because the specific NEC occupation is inclusive rather than exclusive, the Tribunal assessed the position against the broader ANZSCO unit group description for Information and Organisation Professionals, applying Cargo First Pty Ltd v MIBP [2016] FCA 30. It accepted the director’s evidence that the business’s growing scale and post-COVID shift to retail and technology required a dedicated data and analytics function reporting to him, and found no indicators the role was designed for a migration outcome. It was satisfied the position was genuine and full-time.

What this means for youA nomination in a broad, ‘not elsewhere classified’ occupation code can succeed if you show, with real business evidence, how the role’s duties fit the wider ANZSCO unit group description.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the applicant was not the subject of an approved nomination by a standard business sponsor, as the employer’s nomination application had itself been refused.

What was put to the Tribunal

• The employer’s nomination application had since been approved by the Department
• The approved nomination meant the visa criterion requiring an approved sponsor nomination was now met

The evidence that mattered

• Evidence that the Department approved the employer’s nomination application

How the Tribunal decided

The Tribunal found the nomination identified in the visa application had since been approved by the Department, satisfying cl 482.212(1), and remitted the primary application. It could not, however, find the secondary applicant met cl 482.312, since that clause requires the primary applicant to already hold the relevant visa, which had not yet occurred.

What this means for youA visa refused only because the sponsor’s nomination was not yet approved can often be resolved once that nomination is approved, though family members may need to wait for the primary visa to be granted.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the sponsoring employer’s nomination application had been refused, so the applicant was not the subject of an approved nomination by a standard business sponsor as cl 482.212 requires.

What was put to the Tribunal

• The employer’s nomination had since been approved by the Department and should satisfy the visa criterion

The evidence that mattered

• Evidence that the Department approved the employer’s nomination application on February 2026

How the Tribunal decided

The Tribunal found that although the nomination had initially been refused, the Department later approved the employer’s nomination application. As the nomination was approved, made by an approved work sponsor, and had not ceased, the Tribunal was satisfied cl 482.212(1) was met and remitted the visa application for the Minister to consider the remaining criteria.

What this means for youIf your employer’s nomination is later approved after your visa was refused for lacking one, you can seek a review to have your visa application reconsidered on that basis.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied the Chef position was genuine, considering the role more closely matched the Cook occupation than Chef.

What was put to the Tribunal

• The role involves complex techniques (multi-day brining, slow-cooking) requiring genuine chef-level skill, not just cook-level tasks
• A detailed duty breakdown shows the role spans menu planning, kitchen management and staff training, matching the Chef ANZSCO description
• The business is a genuine full-service restaurant, not a fast-food or limited-service operation
• The business’s growth and existing staffing structure support the need for a dedicated full-time Chef
• The nominee holds relevant qualifications and over four years' experience in the role

The evidence that mattered

• Detailed duty statement breaking down tasks by percentage of time
• Employment contract confirming a full-time role at about $90,000 plus superannuation
• Kitchen Recipe & Operations Manual prepared by the nominee
• Organisational chart showing kitchen and front-of-house staffing
• Tax return and BAS statements showing business revenue

How the Tribunal decided

Comparing the nominated duties against the ANZSCO tasks for both Chef and Cook, the Tribunal found the role’s menu planning, quality oversight, technique demonstration and staff training aligned more closely with Chef — the qualitative comparison endorsed in Cargo First Pty Ltd v MIBP [2016] FCA 30. It accepted the restaurant’s complex, made-from-scratch menu genuinely required chef-level skill and found the position both genuine and full-time.

What this means for youIf your business’s chef role is being reclassified down to ‘cook’ level, a detailed breakdown of duties against the ANZSCO description can show it’s genuinely a chef position.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because there was insufficient evidence to demonstrate the applicant and sponsor were in a genuine de facto relationship, having regard to the factors in reg 1.09A.

What was put to the Tribunal

• The couple gave a consistent, mutually corroborated account of the relationship from the time they met
• Periods of physical separation were explained by COVID-19 border closures, family circumstances and a period of medical recovery, not by any lack of commitment
• The relationship was registered under NSW law, so the usual 12-month de facto period requirement did not apply
• There was clear financial interdependence, including joint accounts, jointly funded home improvements and each partner nominated as the other’s superannuation beneficiary
• Statements from family, friends, neighbours and colleagues confirmed the relationship was genuine and long-standing

The evidence that mattered

• Joint bank account statements
• Evidence of jointly funded home improvements
• Superannuation nomination documents naming each other as beneficiaries
• Registration of the relationship under the Births Deaths and Marriages Registration Act 1995 (NSW)
• Statements from friends, family, neighbours and colleagues
• Oral evidence from the applicant and the sponsor at hearing

How the Tribunal decided

The Tribunal assessed the financial, household, social and commitment aspects of the relationship under reg 1.09A(3), applying He v MIBP [2017] FCAFC 206. It accepted that the periods spent living apart were explained by circumstances outside the couple’s control, and that the relationship was genuine and continuing rather than one where the parties were living separately and apart on a permanent basis. Because the relationship was registered under state law, the usual 12-month de facto requirement did not apply.

What this means for youTime spent apart does not defeat a partner visa claim if you can show it was due to real circumstances beyond your control, backed by consistent financial and social evidence.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the applicant had not provided the requested state-level police certificates from their home country, and the delegate was not satisfied it was reasonable to waive that requirement.

What was put to the Tribunal

• The applicant had since obtained and provided the outstanding federal and state police clearance certificates
• The completed Form 80 already provided to the Department satisfied the separate requirement in reg 2.03AA(2)(b)

The evidence that mattered

• Federal criminal clearance certificate
• State-level criminal clearance certificates covering each state of residence
• Police clearance certificates from the relevant state authorities
• All certificates provided with certified English translations

How the Tribunal decided

The Tribunal found that although the required state-level police certificates had not been provided to the Department before the original decision, they were later obtained and provided to the Tribunal with English translations. Because a completed Form 80 had also been provided, the Tribunal was satisfied both limbs of reg 2.03AA(2) were met.

What this means for youIf a visa is refused because a police certificate is missing, obtaining and providing the correct document before or during a Tribunal review can resolve that specific ground of refusal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because, at the time of the decision, the sponsoring employer did not have an approved nomination for the applicant and he had not withdrawn his application.

What was put to the Tribunal

• The underlying nomination refusal had separately been reviewed and set aside by the Tribunal
• Following that outcome, the Department went on to approve the nomination
• The sponsor held current standard business sponsor approval with no evidence it had ceased
• The visa criterion requiring an approved, current nomination was therefore now met

The evidence that mattered

• Departmental letter confirming approval of the sponsor’s nomination
• Departmental letter confirming the sponsor’s standard business sponsor approval, effective to 2028

How the Tribunal decided

The Tribunal found the nomination had since been approved by the Department following an earlier successful review, and that the sponsor’s approval as a standard business sponsor remained current. It decided the matter on the papers, without a hearing, under s 106(3) of the Administrative Review Tribunal Act 2024. This satisfied cl 482.212(1).

What this means for youA visa refused only because the employer’s nomination was not yet approved can often be revisited successfully once that nomination is later approved.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because they were not satisfied the applicant had worked in the nominated Chef occupation or a related field for at least 2 years, finding the applicant’s declarations were not backed by adequate verifiable evidence.

What was put to the Tribunal

• An updated resume set out the applicant’s continuous employment as a Chef
• A work reference letter from the Australian employer confirmed full-time chef duties since mid-2024
• Income tax records for three financial years showed income from the employer sponsor
• Work references and a payslip from a prior overseas employer confirmed chef experience back to 2019

The evidence that mattered

• Updated resume
• Work reference letter from the Australian sponsoring employer
• Income tax statements for 2023-24, 2024-25 and 2025-26
• Overseas work references and a payslip evidencing prior chef experience

How the Tribunal decided

The Tribunal found the combined documentary evidence — reference letters, tax records and overseas references — showed duties consistent with ANZSCO 351311 Chef performed for more than two years, satisfying cl 482.231. It decided the matter on the papers, without a hearing, under s 106(3) of the Administrative Review Tribunal Act 2024. The family members' visa outcomes will follow the primary applicant’s outcome on remittal.

What this means for youWhere a refusal turns on unproven work experience, pulling together payslips, tax records and reference letters can establish the required history at Tribunal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the associated employer nomination lodged on the applicant’s behalf had itself been refused, meaning there was no approved nomination in effect as required for the visa to be granted.

What was put to the Tribunal

• The associated nomination had since been remitted by the Tribunal in a separate review and subsequently approved by the Department
• That approval meant the applicant now met the requirement for an approved nomination in effect

The evidence that mattered

• Tribunal decision remitting the associated nomination application with a direction that the sponsor met the relevant criteria
• Departmental notification confirming the nomination was approved on remittal

How the Tribunal decided

Because the issue was confined to whether an approved nomination existed, the Tribunal decided the review without a hearing under s 106(3) of the ART Act. It found that the linked nomination had been approved by the Department following an earlier Tribunal remittal, satisfying the relevant criterion, and it remitted the visa application for reconsideration of the remaining requirements.

What this means for youA visa refused only because a linked employer nomination was refused can often be revived once that nomination is separately approved on review.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the sponsoring employer’s nomination had been refused, so the applicant was not the subject of an approved nomination by an approved work sponsor as cl 482.212(1) requires.

What was put to the Tribunal

• The linked nomination had since been set aside on review and approved by the Department, satisfying cl 482.212(1)

The evidence that mattered

• The Tribunal’s earlier decision setting aside the refusal of the employer’s nomination
• Confirmation that the Department approved the nomination

How the Tribunal decided

The Tribunal noted it had already set aside the refusal of the employer’s nomination in a related review, and the Department subsequently approved it. Because the nomination was approved, made by an approved sponsor and had not ceased, the Tribunal was satisfied the requirements of cl 482.212 were met and remitted the visa application for the Minister to consider the remaining criteria.

What this means for youSuccessfully reviewing a refused nomination can clear the way for the linked visa application to also be remitted for a fresh decision.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because, at the time of the decision, the nomination the application relied on under section 140GB had not yet been approved.

What was put to the Tribunal

• The employer’s nomination had since been approved by the Department
• The nomination met the requirement in clause 482.212(1) — it was approved, made by an approved sponsor, and had not ceased

The evidence that mattered

• Department’s nomination approval dated June 2026
• Confirmation of the employer’s Standard Business Sponsorship, valid to January 2029

How the Tribunal decided

The Tribunal found the only issue was whether the applicant was subject to an approved nomination. Because the Department approved the employer’s nomination while the review was on foot, the Tribunal was satisfied clause 482.212(1) was met. As the matter could be decided wholly in the applicant’s favour on the papers, no hearing was needed.

What this means for youA visa refused only because your employer’s nomination wasn’t approved yet can often be fixed once that nomination is later approved — do not assume refusal is the end of the road.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied there was sufficient evidence of why the position was needed, whether it was full-time, whether it currently existed, how it fit the business, who had been performing it, or how the work related to the nominated occupation.

What was put to the Tribunal

• Business revenue had roughly doubled year on year, driven by an increase in design contracts
• An organisational chart showed a structured design team, including the nominated project interior designer role
• The nominee had already been performing the role full-time since August 2023
• Typical projects run around 22 weeks and require constant client and supplier engagement, supporting a full-time need
• The nominee’s portfolio of work matched the ANZSCO description for the occupation

The evidence that mattered

• ASIC historical company extract
• Organisational chart with position descriptions
• Project pipeline, commission tracker and client proposals
• Supporting letter from the company director
• Portfolio of the nominee’s design work
• Company financial statements, tax returns and BAS for FY2024-2025

How the Tribunal decided

The Tribunal qualitatively compared the position against the nominated occupation and the business’s real labour needs, the approach required by Cargo First Pty Ltd v MIBP [2016] FCA 30. Fresh financial records, the organisational chart and the nominee’s work portfolio, provided after the original refusal, satisfied the Tribunal that the role was genuine, necessary and full-time.

What this means for youFresh evidence at Tribunal stage — updated financials, an organisational chart and a portfolio of work — can succeed where the original nomination application fell short on detail.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination on the basis that transporting goods, the sponsor’s core removalist business, was not consistent with the nominated occupation of Facilities Manager, and found the position had been created to secure the nominee’s ongoing stay in Australia.

What was put to the Tribunal

• The business had evolved from a removalist into a growing storage provider requiring dedicated facilities management
• The nominee’s daily duties centre on operational management of two storage facilities, not removals or transport
• Direct operational control over the storage facilities was maintained despite renting premises from a third party

The evidence that mattered

• Organisation chart and current business and financial information
• The nominee’s employment contract and PAYG summaries for two financial years
• Business invoices for storage services and photographs of the storage facilities
• Oral evidence from the director and the nominee describing daily facility management tasks

How the Tribunal decided

The Tribunal compared the nominee’s day-to-day tasks — overseeing access to storage units, coordinating business partners, and maintaining an inventory database — against the ANZSCO description of a Facilities Manager, applying the qualitative approach from Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the description was not limited to large organisations and that, while the sponsor’s core business remained removals, its storage operations were an integral and growing part of it, supporting a genuine full-time facilities management role.

What this means for youIf your business has grown into a new service line, evidence of that shift and detailed daily task descriptions can establish a genuine need for a role the Department sees as unrelated to your core trade.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied the Electronic Equipment Trades Worker position was genuine — doubting there was enough equipment to justify a full-time role, that the tasks matched the occupation, or that the business’s scale supported the position, and noting there was no history of the role being previously filled.

What was put to the Tribunal

• The role grew from part-time to full-time as the business’s equipment maintenance needs expanded
• Around 80% of the nominee’s time is hands-on equipment repair, calibration and maintenance
• The business could not find a suitably qualified replacement despite advertising the role
• Detailed financial records show the business can sustain a full-time position
• The nominee’s technical background and qualifications match the occupation’s tasks

The evidence that mattered

• Tools and Equipment Register listing 121 items
• Photographs of the nominee working on business equipment
• Financial statements and tax returns spanning FY18 to FY25
• Oral evidence from the business’s office manager and the nominee at hearing
• External accountant’s letter confirming financial capacity
• Organisational chart and employee staff list

How the Tribunal decided

The Tribunal preferred the considerably more detailed evidence put before it than was available to the delegate, including oral evidence from the office manager and the nominee describing the role’s hands-on equipment maintenance work — consistent with the qualitative approach in Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the tasks matched the ANZSCO description, the business’s financial growth supported a full-time position, and the shift from part-time to full-time reflected genuine operational need.

What this means for youA refused nomination can often be turned around at Tribunal review by putting forward more complete evidence — equipment registers, financials and first-hand oral evidence — than was before the original decision-maker.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination on the basis the business was effectively a ‘limited service restaurant’ under the relevant legislative instrument, so the Chef occupation code did not apply, citing a lack of evidence of substantial food preparation, pre-processed menu items, counter rather than table service, and a streamlined menu.

What was put to the Tribunal

• The café/restaurant offers a broad, complex menu including curries and Asian dishes prepared from fresh ingredients
• Full table service is provided by dedicated wait staff during the busy lunch period
• Catering and buffet orders require 24 hours' notice, showing genuine kitchen preparation, not just reheating
• Photographs and details of the kitchen showed real cooking capability, not a fast food setup
• The premises seats up to 150 guests with proper staffing levels

The evidence that mattered

• Menu details covering breakfast, lunch, catering and buffet offerings
• Photographs of the premises and kitchen
• Evidence of seating capacity and wait staff numbers
• Oral evidence of the business principal and the visa applicant at hearing

How the Tribunal decided

The Tribunal treated the definition of ‘limited service restaurant’ in the legislative instrument as exhaustive, applying reasoning from YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 and an earlier unreported Tribunal decision. It found the business’s varied, freshly prepared menu and full table service at lunch meant it did not fall within any category of limited service restaurant, so the Chef occupation code properly applied.

What this means for youA chef nomination knocked back because the business looked like a fast casual outlet can be overturned with strong evidence of a genuine, varied menu and proper table service.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the applicant did not provide strong reasons showing the proposed study would assist her employment prospects at home, and had not adequately shown an intention to depart Australia, indicating her motivation was for reasons other than study.

What was put to the Tribunal

• The applicant’s course built directly on her earlier Australian qualifications and supported a clear career plan in hospitality and tourism management
• She intended to return to Spain to work in, and eventually open, a hotel business with her family
• She had no close personal ties keeping her in Australia and would live with family on return
• Her work and study history in Australia showed genuine, diligent engagement with her studies
• Her broader travel and work history reflected a pattern of temporary stays, not an intention to remain permanently

The evidence that mattered

• Written statement explaining her study and career reasoning
• Oral evidence at hearing about her work, travel and study history
• Certificates of completed and current enrolment (Certificate IV, two diplomas, and current Graduate Diploma)
• Evidence of course fees paid
• Evidence of consistent part-time work compliant with visa conditions

How the Tribunal decided

The Tribunal considered the applicant’s circumstances, immigration history and the value of the course to her future, applying Ministerial Direction No 108 on the genuine temporary entrant criterion. It accepted her account that years of travel and work led her to a clear hospitality career plan, that her course built on prior qualifications, and that she had no personal ties keeping her in Australia. It found she intended a genuine temporary stay and intended to comply with visa conditions, satisfying cl 500.212(a) and (b).

What this means for youA clear, consistent story linking your course to a specific career plan back home, backed by evidence of diligent study, can overturn a genuine temporary entrant refusal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the linked nomination made by the sponsoring employer had itself been refused, so the visa applicant did not have an approved nomination as required by cl 482.212(1).

What was put to the Tribunal

• The linked nomination refusal was itself under review and should be set aside
• Once the nomination was approved, the visa criterion in cl 482.212(1) would be met

The evidence that mattered

• The Tribunal’s earlier decision setting aside the refusal of the employer’s nomination
• The Department’s subsequent approval of the nomination

How the Tribunal decided

The Tribunal noted it had already set aside the refusal of the sponsoring employer’s nomination in a related review and ordered that the nomination met reg 2.72(10). The Department then approved that nomination. Because the nomination was now approved, made by an approved sponsor and still in effect, the Tribunal found the visa applicants met cl 482.212(1) and remitted the visa applications for the remaining criteria to be assessed.

What this means for youA visa refusal linked to a nomination refusal can be resolved once the nomination itself is successfully reviewed and approved.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because at the time of decision the applicant was not the subject of an approved nomination made by the sponsoring employer, so cl 482.212(1) of Schedule 2 to the Regulations was not met.

What was put to the Tribunal

• The employer’s nomination for the applicant’s position had since been approved by the Department
• The employer was an approved work sponsor at the time the nomination was approved
• The applicant therefore now met cl 482.212(1)

The evidence that mattered

• A copy of the Department’s approved nomination decision
• Departmental records confirming the employer’s status as an approved work sponsor at the relevant date

How the Tribunal decided

The Tribunal was notified that the Department had, after the original refusal, approved the employer’s nomination of the applicant for the position of Gardener. Departmental records confirmed the employer was an approved work sponsor when it approved the nomination. On that basis the cumulative requirements in cl 482.212(1) were met, and no hearing was needed because the Tribunal could decide wholly in the applicant’s favour on the papers.

What this means for youIf your nomination is approved after your visa is refused for that reason, tell the Tribunal immediately — it can resolve the case on the papers without a hearing.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they considered the nominee’s migration history and lengthy time in Australia raised concerns the position was created mainly to facilitate his stay, and found the evidence did not adequately show the position was genuine.

What was put to the Tribunal

• The business operates an active construction facade, refurbishment and painting operation with a genuine and ongoing need for a full-time painter
• The role’s duties substantially align with the ANZSCO description for Painter
• The nominee’s lawful visa history in Australia should not be held against the genuineness of the position
• The business has the financial capacity to employ the nominee full-time

The evidence that mattered

• Accountant’s letter describing the business’s financial position
• Financial statements for the 2024 and 2025 financial years
• Project invoices and photographs of completed projects
• The nominee’s taxation notices of assessment
• The nominee’s employment contract
• An organisational chart

How the Tribunal decided

Genuineness was assessed qualitatively, in line with Cargo First Pty Ltd v MIBP [2016] FCA 30. It disagreed with the delegate’s concern about the nominee’s lengthy, lawful time in Australia, finding this did not by itself undermine the genuineness of the position. On the evidence of the business’s construction operations, financial capacity and the nominee’s day-to-day duties, the Tribunal found the painter role was a genuine, full-time position aligning with the ANZSCO description.

What this means for youA nominee’s lengthy but lawful time in Australia is not, by itself, a valid reason to find a sponsored position is not genuine, provided the business’s operational need is properly evidenced.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the applicant’s claimed turnover, business growth and ability to support the position was inadequate and unverifiable, the tasks the nominee would actually perform did not clearly align with the nominated occupation, and there was insufficient evidence of enough full-time work for the role.

What was put to the Tribunal

• The nominated Solid Plasterer role is a genuine, distinct position within the employer’s organisational structure
• The role’s duties substantially align with the ANZSCO description for Solid Plasterer
• The business has strong and growing turnover that supports a full-time position
• The nominee has been employed and paid on a full-time basis for two years, shown by payslips and an employment contract
• The plastering work is ongoing across multiple sites and is not sporadic or incidental

The evidence that mattered

• Two years of company tax returns and financial statements
• 24 months of Business Activity Statements
• Organisational chart showing where the role sits in the business
• Employment contract confirming a full-time role
• Payslips for the nominee over two years
• Photographs of the nominee performing the work

How the Tribunal decided

Comparing the position with the nominated occupation, the Tribunal applied the qualitative genuineness test from Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the role fitted logically within the employer’s organisational structure and its duties substantially matched the ANZSCO description for Solid Plasterer. Strong and growing turnover, combined with two years of full-time payslips and ongoing multi-site work, satisfied the Tribunal the business had the financial and operational need for a full-time plasterer. The Tribunal was therefore satisfied the position was genuine and full-time.

What this means for youIf your business’s growth and the ongoing scope of a role are properly documented with financial records, an organisational chart and evidence of the work actually being done, a ‘not genuine position’ refusal can be overturned.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the student visa because they were not satisfied the applicant met the genuine temporary entrant criterion in cl 500.212 of Schedule 2 to the Migration Regulations.

What was put to the Tribunal

• The applicant has strong family and social ties to Peru, including regular contact with extended family
• He has a consistent history of returning home after travel and study, with no prior visa refusals anywhere
• The Australian course (Certificate III in Painting and Decorating) builds on his legal background and supports a clear career path in Peru’s construction industry
• He intends to comply with all visa conditions and has an unblemished compliance record

The evidence that mattered

• Evidence of family ties and regular contact with relatives in Peru
• Immigration and travel history showing repeated return to Peru after trips to other countries
• Academic record: bachelor degree in International Law completed in Ukraine, then legal employment in Peru
• Applicant’s evidence about construction industry opportunities in Peru relevant to the proposed course

How the Tribunal decided

The Tribunal weighed the applicant’s circumstances in his home country, his immigration history, and the value of the course to his future, applying Direction No. 108. It found his strong family ties, clean immigration record, and the logical link between the course and his intended career in Peru supported a genuine intention to stay temporarily and comply with visa conditions.

What this means for youStrong home-country ties and a clear course-to-career link can overturn a genuine temporary entrant refusal, even after a visa has already been refused once.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they were not satisfied the position was genuine, finding that in the context of the employer’s transport and logistics business the tasks the nominee was actually likely to perform were operational rather than managerial, and did not substantially align with the ANZSCO description of a Transport Company Manager.

What was put to the Tribunal

• The nominee performed senior, group-wide strategic and compliance duties, not routine driving or dispatch work
• The scale and complexity of an interrelated group of transport companies required a dedicated senior management role
• The business had strong and growing revenue supporting the position financially
• The position had existed and been performed by the nominee since the business expanded during COVID
• The employer addressed the Tribunal’s concern about the nominee’s long visa history by confirming the role was genuine and essential

The evidence that mattered

• Detailed organisational chart across the corporate group
• Two years of financial statements, tax returns and BAS across multiple related entities
• Company policies and strategy documents authored by the nominee (health and safety, recruitment, fleet scheduling, KPI reporting)
• Nominee bank statements, invoices and tax returns showing consistent managerial-level remuneration
• Oral evidence from the company director at hearing

How the Tribunal decided

The Tribunal qualitatively compared the nominee’s actual duties with the ANZSCO description for Transport Company Manager, following the approach in Cargo First Pty Ltd v MIBP [2016] FCA 30. It accepted evidence that the nominee performed strategic, compliance and financial-oversight functions across a complex multi-entity group, while routine driving and dispatch tasks were done by others. Despite initial concern about the nominee’s long immigration history in Australia, the Tribunal found the director a credible witness and was satisfied the position was genuine, full-time and financially supported.

What this means for youFor a manager-level nomination in a complex or multi-entity business, detailed evidence of strategic duties, organisational structure and financial capacity can overcome a delegate’s concern that the role looks too operational.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they were not satisfied the nominated position of Retail Buyer was genuine.

What was put to the Tribunal

• The business’s scale, multi-state operations and significant online sales required a dedicated procurement and merchandising role
• The nominee’s duties closely matched the ANZSCO description for Retail Buyer, including sourcing, negotiating with suppliers and managing inventory
• The organisational chart showed the role reporting directly to the director and was not redundant
• Financial records showed sufficient revenue to support the position on an ongoing basis
• The role had not been created to secure a migration outcome but addressed genuine operational needs

The evidence that mattered

• Two years of company tax returns and Business Activity Statements
• Profit and loss statements and balance sheets
• Organisational chart showing all employees and immigration status
• Current employment contract and two years of PAYG payment summaries for the nominee

How the Tribunal decided

The Tribunal compared the nominee’s actual duties against the ANZSCO description for unit group 6392 Retail and Wool Buyers, finding the nominee was engaged in monitoring sales and stock, negotiating supplier arrangements, and implementing pricing and promotional strategies consistent with that description. Given the scale of the multi-location retail and wholesale operation and its significant online presence, the Tribunal was satisfied the position was genuine and full-time.

What this means for youDetailed evidence matching day-to-day duties to the official ANZSCO task list, backed by financial and organisational records, can overturn a ‘position not genuine’ nomination refusal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the delegate was not satisfied that the nominated occupation of Retail Buyer was genuine within the sponsor’s business.

What was put to the Tribunal

• The high-volume, perishable nature of the seafood business creates a critical need for a specialised buyer to manage procurement, supplier coordination and quality control
• The nominee’s duties in inventory forecasting, cost control, margin management and supplier negotiation align precisely with the ANZSCO occupation
• The role could not realistically be absorbed by existing floor, kitchen or casual retail staff
• Extensive recruitment efforts and labour market testing had failed to find a suitable local candidate

The evidence that mattered

• Position description detailing purchasing, negotiation and inventory-forecasting duties
• Industry reference letters from a wholesale supplier and an industry association president describing the nominee’s buying role
• Financial documents showing a highly profitable business
• Evidence of extensive recruitment attempts and labour market testing within the required period

How the Tribunal decided

The Tribunal compared the nominee’s day-to-day tasks, monitoring stock and sales data, negotiating with suppliers, and implementing pricing and promotional strategies, against the ANZSCO description of a Retail Buyer. It found the tasks substantially aligned with the occupation and that the position, supported by industry references and evidence of genuine recruitment efforts, was a genuine, full-time role within the sponsor’s seafood retail business.

What this means for youDetailed task evidence, industry references and proof of genuine recruitment efforts can overcome a ‘position not genuine’ refusal even for a specialist buying role.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate cancelled the visa on the basis that the visa holder had not been enrolled in a full-time registered course for well over a year, in breach of condition 8202, and considered the purpose of remaining in Australia was no longer study, with no extenuating circumstances.

What was put to the Tribunal

• The visa holder had been misled by a previous education and migration agent into believing the enrolment was still valid
• The breach was discovered too late to correct, and there were significant personal and financial pressures at the time
• Rather than re-enrol artificially to appear compliant, the visa holder acted in good faith and pursued a subclass 482 sponsored pathway
• An Australian employer had a real and continuing need for the visa holder, supported by a nomination the Tribunal had already found genuine
• Cancellation would put the pending sponsored visa application at risk and cause disproportionate hardship

The evidence that mattered

• PRISMS enrolment records showing the period of non-enrolment
• Oral evidence at hearing about the advice given by the former agent
• A credible, consistent account of when the problem was discovered and what was done about it
• Evidence that the sponsoring employer’s nomination had been found genuine in a related Tribunal matter
• Evidence of family financial responsibilities overseas

How the Tribunal decided

The Tribunal found the breach of condition 8202 was established, but that the discretion to cancel should not be exercised. It accepted that the visa holder had been misled by a former agent and only discovered the problem once it was too late to fix, and that acting on honest advice to pursue a sponsored visa, rather than re-enrolling artificially, showed good faith. Weighing contrition, the employer’s genuine need and the hardship cancellation would cause against the seriousness of the non-compliance, the Tribunal decided the visa should not be cancelled.

What this means for youIf your student visa is at risk because of an enrolment gap, the reasons behind the gap and what you did once you found out can matter as much as the breach itself — get advice before the deadline passes.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied the Contract Administrator position was genuine — citing the nominee’s family relationship with a company director, the business’s reliance on subcontractors over employees, and doubts the standard contracts used warranted a dedicated role.

What was put to the Tribunal

• The business had grown substantially, including securing a construction contract worth tens of millions, justifying a dedicated contract administration role
• The role’s actual duties go well beyond standard home-building contracts, including complex negotiations, legal correspondence and financial matters
• Heavy use of subcontractors reflects standard industry practice, not an artificially small business structure
• The nominee’s law degree and 14 years' contract coordination experience, plus language skills, suit the role
• The role was created due to genuine business growth, not to facilitate the nominee’s stay

The evidence that mattered

• Updated organisational chart showing clear reporting lines
• Financial records showing income growth of roughly a third over two years
• A major Design and Construct Agreement with an institutional client
• Sample contracts, invoices and correspondence showing the nominee’s substantive involvement
• Evidence that advertising the role attracted no other applicants

How the Tribunal decided

The Tribunal accepted the business’s explanation for its reliance on subcontractors as standard industry practice and, applying the qualitative approach in Cargo First Pty Ltd v MIBP [2016] FCA 30, found the nominee’s actual duties — negotiating variations, managing compliance and handling high-value contracts — matched the Contract Administrator ANZSCO description. Although it noted the familial connection between the nominee and a director, it gave more weight to the nominee’s qualifications, the business’s genuine growth and the lack of other job applicants, concluding the role was created for real commercial need.

What this means for youA family connection to a nominee does not automatically sink a nomination — detailed evidence of genuine business growth and the role’s real duties can outweigh that concern.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they were not satisfied the Contract Administrator position was genuine, as required by reg 2.72(10)(a) of the Migration Regulations.

What was put to the Tribunal

• The steel fixing business runs multiple concurrent commercial and domestic projects needing contract administration
• The director’s evidence detailed the specific duties the nominee performs, including contract negotiation and coordination with trades
• The written duties list matched the ANZSCO 511111 task description closely
• The nominee had already worked in the role, part-time then full-time, since 2017
• Changing the nominee from contractor to employee was a genuine commercial decision, not evidence of contrivance

The evidence that mattered

• Company financial statements, tax returns and BAS statements
• ASIC company details report and Australian Business Register extract
• Accountant’s letters confirming business operations
• Steelfixing services agreements and invoices
• Nominee’s academic transcript and employment history with the applicant since 2017

How the Tribunal decided

Applying SZSRS v MIMIA (2007), the Tribunal assessed genuineness against the business’s actual activities and labour needs. It accepted the director’s evidence that the nominee’s duties matched ANZSCO 511111, and, applying Kaur v MIBP [2017] FCCA, found the planned shift from contractor to employee engagement was a normal commercial decision rather than a sign the position was contrived for migration purposes.

What this means for youA long, documented history of someone already performing the nominated role can be powerful evidence when a nomination is refused for not being genuine.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the sponsoring employer did not have an approved nomination in place at the time of decision, so the applicant was not the subject of an approved nomination as required by cl 482.212.

What was put to the Tribunal

• The employer’s related nomination review had separately succeeded before the Tribunal, meeting the prescribed nomination criteria
• With the nomination now approved, the applicant met cl 482.212(1)
• The applicant relied on academic qualifications, police checks and an English test result filed with the review

The evidence that mattered

• Diploma and Advanced Diploma qualifications with academic transcripts
• Letter from the sponsoring employer
• IELTS test report
• Australian Federal Police and international criminal record checks
• Oral evidence from the employer’s director at hearing

How the Tribunal decided

The Tribunal noted that in a related proceeding it had already set aside the delegate’s decision on the employer’s nomination and found the nominated position met the prescribed criteria in reg 2.72(10). Because the nomination was now taken to meet the requirements, the Tribunal found the applicant satisfied cl 482.212. It found the applicant did not separately qualify as a family member of an existing 457/482 visa holder under cl 482.312, but that was not needed given the primary criteria were met.

What this means for youA successful challenge to your employer’s nomination decision can flow through to fix a linked visa refusal that was only about the nomination not being approved yet.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because bicycle repair work was considered not to align with the ANZSCO description of an Electronic Equipment Trades Worker, and duties involving customer assistance were seen as inconsistent with that occupation. The delegate considered the role more closely matched a Bicycle Mechanic.

What was put to the Tribunal

• The role centres on diagnosing and repairing electrical and electronic e-bike components such as motors, controllers and wiring, not general bicycle mechanics
• A detailed task breakdown showed the majority of time spent on electrical diagnosis, maintenance and safety compliance work matching the ANZSCO occupation
• Industry supplier letters confirmed the nominee’s electrical diagnostic expertise on e-bike systems

The evidence that mattered

• Updated organisational chart and staff list showing Australian and foreign employees
• Detailed task and time-allocation breakdown for the position
• Letters of support from industry suppliers describing the nominee’s electrical diagnostic work
• The nominee’s employment contract and position description

How the Tribunal decided

The Tribunal compared the detailed task breakdown against the ANZSCO description for Electronic Equipment Trades Worker, which covers examining, testing, adjusting and repairing electronic equipment — the qualitative comparison approach required by Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the nominee’s e-bike diagnostic, repair and safety-compliance duties encompassed the majority of the listed ANZSCO tasks, and that the position served the sponsor’s core business, so the position was genuine.

What this means for youWhen the Department says your role fits a different, lower-skilled occupation, a detailed breakdown of time spent on each task can show your role genuinely matches the nominated occupation.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they were not satisfied the Contract Administrator position was genuine, as required by reg 2.72(10)(a) of the Migration Regulations.

What was put to the Tribunal

• The business runs multiple concurrent construction projects requiring ongoing contract administration
• The director’s oral evidence described the day-to-day duties of the role in detail
• The written job description matched the tasks of ANZSCO 511111 Contract Administrator
• The nominee’s qualifications and prior contract administration experience suited the role
• Moving the nominee from a contractor to an employee was a genuine commercial decision, not a device to support the visa

The evidence that mattered

• Company activity statements and tax returns
• Company financial statements and profit and loss reports
• Organisation chart
• Job description and employment contract
• Job advertisements, recruitment summary and labour market testing attestation
• Sample work contracts, invoices and site photographs

How the Tribunal decided

The Tribunal applied the principle from SZSRS v MIMIA (2007) that genuineness must be assessed against the real activities and labour needs of the business, not a hypothetical structure. Based on the director’s evidence and supporting documents, the Tribunal found the duties performed matched ANZSCO 511111. It accepted, applying Kaur v MIBP [2017] FCCA, that changing the nominee’s engagement from contractor to employee was a normal commercial decision and did not show the position was contrived.

What this means for youA ‘position not genuine’ nomination refusal can be overturned with clear evidence of real business activity and how the role actually fits the day-to-day operations.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because, at the time, the applicant business was not an approved standard business sponsor as required by reg 2.72(5).

What was put to the Tribunal

• The business had since become an approved standard business sponsor
• The sponsorship had not lapsed or ceased

The evidence that mattered

• Department notice confirming standard business sponsorship approval effective from October 2024 to October 2029

How the Tribunal decided

Acting on a Tribunal direction to provide evidence of current sponsorship status, the applicant produced a Department notice confirming its sponsorship approval. Finding no evidence the sponsorship had lapsed or ceased, the Tribunal was satisfied reg 2.72(5) was met and decided the matter without a hearing, wholly in the applicant’s favour.

What this means for youIf your nomination is refused only because your sponsorship approval wasn’t yet in place, getting that approval and putting it before the Tribunal can resolve the issue.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the student visa because they were not satisfied the applicant was a genuine temporary entrant under cl 500.212, given concerns about whether his study plans reflected a genuine intention to return home rather than remain in Australia long-term.

What was put to the Tribunal

• The applicant had a consistent career transition from law to hospitality, supported by ongoing work as a chef since 2018
• His studies in Australia built directly towards his stated goal of opening his own restaurant in Brazil
• He had strong family and economic ties in Brazil, including plans to raise his and his wife’s child near relatives
• Limited technical hospitality training options in his home region justified study in Australia
• There was no adverse immigration history or country-risk factors

The evidence that mattered

• Oral evidence at hearing from the applicant and his wife, with interpreter assistance
• Confirmation of enrolment in an Advanced Diploma of Hospitality Management filed after the hearing
• Evidence of the applicant’s earlier career and subsequent hospitality work overseas
• Evidence of the wife’s pregnancy and the couple’s family ties in Brazil
• PRISMS enrolment records raised by the Tribunal

How the Tribunal decided

The Tribunal weighed the applicant’s full circumstances rather than treating any single factor as decisive, as Direction No 108 requires. Although it raised concerns about a gap in enrolment and a late-disclosed further enrolment, it accepted the applicant’s explanation that he was awaiting the hearing outcome. It found his career trajectory consistent, his family and economic ties to Brazil strong, and was satisfied on balance that he genuinely intended a temporary stay.

What this means for youIf there is a gap between finishing one course and starting the next, act quickly and be upfront with the Tribunal about your ongoing study and career plan.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the sponsor’s business appeared to focus on waterproofing and caulking rather than tiling, and the delegate was not satisfied there was a genuine need for a full-time wall and floor tiler.

What was put to the Tribunal

• Waterproofing work in wet areas such as kitchens, bathrooms and balconies commonly requires tiling, so the two trades overlap
• The business’s revenue growth supported a genuine, full-time need for the position

The evidence that mattered

• Business Activity Statements for the most recent financial year showing total sales of about $800,000
• Company financial documents showing increasing revenue year on year

How the Tribunal decided

The Tribunal accepted that repairing or constructing waterproof areas commonly involves laying tiles, so a waterproofing-focused business could still have a genuine need for a tiler — the qualitative approach to genuineness endorsed in Cargo First Pty Ltd v MIBP [2016] FCA 30. Reviewing the sponsor’s rising BAS turnover, the Tribunal was satisfied the business could support a full-time tiling position and found the genuineness and full-time criteria met.

What this means for youA refusal over whether a position is genuine can be overturned by showing how related trades and revenue growth actually support the role in practice.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the sponsor’s staffing list did not show a logistics coordinator or inventory manager for the nominee to supervise or collaborate with, and there was no administrative support staff, so the delegate was not satisfied the nominee would actually perform the managerial tasks of a Transport Company Manager rather than lower-skilled driving or administrative duties.

What was put to the Tribunal

• The role manages an 8-vehicle delivery fleet and 9 drivers, not just administrative or driving tasks
• The position involves scheduling deliveries, supplier and client liaison, vehicle maintenance oversight and compliance with delivery and food-safety procedures
• Any hands-on assistance with loading is incidental to, not the substance of, the management role
• The business’s scale, around 70 deliveries a day and turnover in the tens of millions, required dedicated fleet and logistics management

The evidence that mattered

• Updated organisational chart showing the transport team structure
• Business Activity Statements evidencing annual turnover in the tens of millions
• Written transport, delivery and product handling policy document
• Oral evidence from the Finance Manager, General Manager and the nominee at hearing

How the Tribunal decided

The Tribunal compared the nominee’s actual duties — organising vehicle purchase and maintenance, liaising with clients on delivery schedules, and maintaining records and compliance — against the ANZSCO description of a Transport Company Manager, applying the qualitative comparison approach from Cargo First Pty Ltd v MIBP [2016] FCA 30. It found none of the low-skill, small-business or low-turnover exclusions in the occupation instrument applied, and that the fleet, delivery volume and business scale supported a genuine, full-time managerial role.

What this means for youIf the Department doubts your role is genuinely managerial because your staff list looks thin, oral evidence and documented policies describing what the role actually does day to day can fill that gap.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the student visa because they were not satisfied the applicant genuinely intended to stay in Australia only temporarily, as required by cl 500.212.

What was put to the Tribunal

• He was clear his current course finishes in October 2025 and he plans to return to Brazil straight after
• He has strong ties to Brazil — family, a home, and savings to start a business there
• He has no partner, family or established community ties in Australia
• His change of study field reflects a genuine, explainable career shift rather than an attempt to stay longer
• He has a good compliance record with his visa conditions

The evidence that mattered

• PRISMS enrolment and course completion records
• Applicant’s oral evidence given with an interpreter
• Evidence of savings held in Brazilian bank accounts
• Property title documents for his home in Brazil
• Representative’s submissions explaining the applicant’s study and career plans

How the Tribunal decided

The Tribunal weighed the applicant’s circumstances in Brazil, his lack of ties in Australia, his immigration history and his clear, specific plan to return home after finishing his current course, applying Direction No 108. It accepted his explanation for shifting from business studies to painting and decorating and found no evidence the visa was being used to maintain ongoing residence. On balance it was satisfied he was a genuine temporary entrant.

What this means for youA clear, specific return plan and evidence of strong ties to your home country can overcome a genuine-temporary-entrant refusal, even after a change in study direction.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied the Solid Plasterer position was genuine, as required by reg 2.72(10)(a).

What was put to the Tribunal

• The trade is a genuine, diminishing skill in high demand for restoring buildings after asbestos removal
• An extensive recruitment campaign across three platforms produced only two applicants
• The business is financially healthy and can sustain the salary offered
• The role and salary align with the ANZSCO description and market rates
• The nominee’s qualifications and hands-on experience match the role

The evidence that mattered

• Recruitment results from JORA, Indeed and Adzuna over about a month
• Financial records including BAS statements and profit and loss statements
• Accountant’s letter confirming the business’s financial capacity
• Current ASIC company registration details
• Employment contract, position description and photographic evidence of work performed

How the Tribunal decided

The Tribunal’s starting point was a qualitative comparison of the position with the nominated occupation, the approach set out in Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the diminishing supply of skilled solid plasterers, the difficulty the business had recruiting despite a market-rate salary, and the business’s financial strength all supported genuineness. It was satisfied the position was both genuine and full-time.

What this means for youStrong evidence of a genuine recruitment effort, financial capacity and how the role fits your business can overturn a ‘position not genuine’ refusal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because photographs and a menu of mainly breakfast items, burgers, sandwiches and pre-made baked goods did not satisfy the delegate that the business was not a ‘limited service restaurant’, meaning the relevant occupation caveat applied and excluded the nominated occupation.

What was put to the Tribunal

• The restaurant offers table service, reservations, a full menu of complex dishes and a curated dining ambience typical of a full-service restaurant
• The lunch and dinner menus feature dishes prepared to order from fresh ingredients, not fast or limited food service
• Photographs and supplier invoices show a fully equipped commercial kitchen preparing meals and sauces from scratch
• The business is financially strong and planning to expand into a full dinner service

The evidence that mattered

• Operational evidence including lunch and café menus
• Updated employee list and financial information
• Sample invoices and daily reports showing business operations
• Photographs of the kitchen and dining area
• Oral evidence from the director and the nominee at hearing

How the Tribunal decided

The Tribunal compared the restaurant’s actual operations against the characteristics of a full-service restaurant, including table service, reservations, a paced dining experience and a diverse menu of dishes prepared to order. It found the applicant’s food offering, supplier invoices and photographs of a fully equipped kitchen showed a genuine full-service restaurant rather than a limited service restaurant as defined in the relevant occupation instrument, so none of the caveat’s exclusions applied.

What this means for youA hospitality business hit by the ‘limited service restaurant’ caveat can succeed by evidencing table service, a genuine menu and a fully equipped kitchen, not just asserting it is not fast food.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the sponsor’s financial records showed sustained carried-forward tax losses over several years without an improving profitability trend. The delegate found this insufficient to show the sponsor had the capacity to pay the nominee the annual market salary rate for two years, although the appropriateness of the proposed salary itself was not disputed.

What was put to the Tribunal

• The sponsor’s venture-capital-funded growth model, not traditional profitability, was the correct lens for assessing financial capacity
• Recurring revenue growth and recent investor funding rounds demonstrated genuine financial viability
• The nominee had already been paid without interruption for over two years, evidencing ongoing capacity
• The sponsor held a scarce regulatory licence that was a valuable business asset
• The Department had approved a comparable nomination shortly before on the same company documents

The evidence that mattered

• Two financial years of company tax returns and BAS statements
• Letter of solvency and a 24-month cash flow review from the sponsor’s accountants
• A letter of support from an institutional investor
• Payslips confirming uninterrupted salary payments to the nominee for two years
• An updated organisational chart showing the team around the role

How the Tribunal decided

The Tribunal accepted that a venture-capital-funded business model is not inherently inconsistent with having the financial capacity to meet sponsorship obligations. It found the sponsor’s investor backing, regulatory licence, uninterrupted salary payments and accountant’s solvency letter gave it comfortable assurance, rather than a guarantee, that the sponsor could sustain the role for two years.

What this means for youIf a nomination is refused over financial capacity, growth-stage businesses can succeed by presenting investor funding, revenue trends and uninterrupted salary payments rather than relying on profit figures alone.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the evidence provided to the Department did not establish that the nominating business had the financial capacity to employ the nominee for at least two years and pay at least the annual market salary rate for the occupation.

What was put to the Tribunal

• The nominee had worked for the business since 2021, moving from subcontractor to full-time employee in February 2024
• An employment agreement showed an annual base salary of about $75,000 plus superannuation
• Payslips showed an hourly rate of $50 and an annualised salary of about $100,000
• Consolidated financial statements showed turnover exceeding about $2 million and net profit over about $490,000 in the 2024 financial year

The evidence that mattered

• Employment agreement dated May 2022
• Payslips from February to December 2024
• Consolidated financial statements for the 2024 financial year
• Documents provided in response to a Tribunal direction under s 79(1) of the Administrative Review Tribunal Act 2024

How the Tribunal decided

The Tribunal decided the matter on the papers under s 106(3) of the Administrative Review Tribunal Act, without a hearing. Based on the employment agreement, payslips and financial statements, it was satisfied the business had sufficient turnover and profit to employ the nominee for at least two years at or above the market salary rate.

What this means for youStrong, up-to-date financial records, including tax returns, payslips and profit figures, can resolve a financial capacity refusal without needing a hearing.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the employer’s business appeared to be a demolition company and its website made no mention of painting services. The delegate was not satisfied there was a genuine need for a full-time painter consistent with the nominated occupation.

What was put to the Tribunal

• The business had evolved from demolition to also include internal strip-outs, plastering and painting
• The painter’s role was to follow stripping and plastering work to ensure interiors were properly finished
• Commercial contracts obtained after the original application included painting and finishing scope of works
• The company had grown as intended and now also engaged plasterers, even though its website was outdated

The evidence that mattered

• Updated employee staff list showing three plasterers engaged
• Post-hearing contracts detailing painting and plastering scope of works
• Oral evidence of the company representative on the business’s evolution and current work
• Oral evidence of the nominee describing his painting duties and lack of heavy machinery licences

How the Tribunal decided

The Tribunal qualitatively compared the actual position with the ANZSCO description of a painter, applying the Cargo First test. Although the applicant’s public marketing still described a demolition-only business, the Tribunal accepted oral and documentary evidence that the company had genuinely expanded into commercial painting, plastering and interior finishing work. It found the painter position matched this real operational need and was full-time.

What this means for youIf your business has grown or changed since you applied, make sure your evidence, not just your website, reflects your current operations before a Tribunal hearing.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the applicant’s 2021 financial statements showed a turnover of about $180,000 and a net loss, which the delegate considered insufficient to financially support employing a full-time painter, and so was not satisfied the position was genuine.

What was put to the Tribunal

• Business turnover had grown significantly since 2021, exceeding about $420,000 by 2024
• The nominee was currently engaged as a subcontractor pending the visa grant, converting to direct employment once approved
• Wages and salary figures in the financial documents should be read together with contractor payments for the same role
• The director drew only nominal dividends personally and relied on other income sources
• The position was a critical, full-time (38 hours per week) role with a proposed four-year term

The evidence that mattered

• 2023 and 2024 company tax returns and financial statements
• Accountant’s letter dated August 2024
• The nominee’s employment contract and job advertisements
• Oral evidence of the nominee, confirmed as skills-assessed as a qualified painter

How the Tribunal decided

The Tribunal considered updated financial evidence rather than the figures the delegate relied on, applying the Cargo First test. It accepted that turnover had grown to around $400,000 per annum and that combined subcontractor and salary expenses aligned with employing a full-time painter plus a contractor. On that basis it found the applicant had the financial means and a genuine need for the position, and that it was full-time.

What this means for youUpdated financial evidence matters. If your business’s financial position has improved since you first applied, give the Tribunal current figures, not just the numbers the delegate relied on.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the evidence provided did not establish that the position of Electronic Equipment Trades Worker was genuine. The nominee was a personal friend of the sponsoring director with no formal qualifications in the field, and it was unclear whether a genuine business need for the role existed.

What was put to the Tribunal

• A supply and distribution agreement for a pool automation product required the business to employ a full-time Electronic Equipment Trades Worker
• The nominee had five years of relevant experience installing and maintaining electronic systems overseas
• The business’s growing client base and device installations had increased the need for the role
• The duties of the position matched both the ANZSCO description and the business’s operational requirements

The evidence that mattered

• Details of the supply/distribution partnership agreement and product
• Evidence of over 350 device installations for clients
• Financial statements, company tax returns and business activity statements
• Payroll records and the nominee’s employment agreement and PAYG summaries
• Oral evidence of the managing director at hearing

How the Tribunal decided

Comparing the position qualitatively against the ANZSCO description and the business’s operational needs, the Tribunal applied Cargo First Pty Ltd v MIBP [2016] FCA 30. It found the tasks matched ANZSCO and that financial and payroll records supported a genuine business need for the role. Based on the nominee’s employment agreement and PAYG summaries, it also found the position was full-time.

What this means for youA nomination can succeed without formal qualifications in the role if the employer can show a real business need and consistent employment and financial records to back it up.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the student visa because they were not satisfied the applicant was a genuine temporary entrant under cl 500.212, meaning they were not convinced she genuinely intended to study in Australia temporarily and then return home.

What was put to the Tribunal

• The applicant intended to complete a Certificate III in Painting and Decorating to build new career prospects and eventually a business in Colombia
• Her accounting and auditing background combined with painting skills and English would give her an advantage in Colombia’s construction industry
• Limited technical painting courses were available in Colombia, justifying study in Australia
• She had strong family ties in Colombia including a jointly-owned family home
• There was no adverse immigration history or other risk factors

The evidence that mattered

• The applicant’s oral evidence given via video hearing
• A written statement addressing her career transition and business plans in Colombia
• Evidence of family home ownership in Colombia
• Evidence of eight years' prior work history as an auditor in Colombia

How the Tribunal decided

Rather than as a checklist, the Tribunal weighed the applicant’s circumstances, immigration history and other relevant matters as a whole, as required by Direction No 108. It found no adverse immigration or country-risk factors, accepted her explanation for studying in Australia rather than Colombia, and was satisfied on balance that she genuinely intended a temporary stay to gain qualifications valuable to her career and business plans at home.

What this means for youA clear, well-evidenced explanation of how your course connects to your career and life plans back home can overcome a genuine temporary entrant refusal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because they were not satisfied that, at the time of application, the applicant and sponsor were in a genuine de facto relationship as defined by s 5CB of the Migration Act 1958.

What was put to the Tribunal

• The couple had been together for more than a decade and were raising children together
• They had pooled financial resources and shared household expenses
• Family, friends and a workplace witness could corroborate the relationship
• Their relationship history, including time spent together overseas, supported a long-term commitment

The evidence that mattered

• Financial records, including tax returns, transfers between them and a will naming the applicant
• Residential tenancy agreements and household bills
• Photographs, messages and social media evidence
• Statutory declarations from friends and family
• Oral evidence from both partners at hearing, with a further witness available
• Evidence of shared care of the children and involvement with extended family

How the Tribunal decided

Working through the financial, household, social and commitment factors in reg 1.09A(3), the Tribunal found consistent, credible oral evidence about a decade-long relationship, a shared household, joint parenting and close ties to extended family, and placed particular weight on the household and social evidence. Despite concerns about limited photographic evidence, an unexecuted will and an earlier non-disclosure, it was satisfied overall that the relationship was genuine and continuing.

What this means for youA genuine partner relationship can be established through consistent oral evidence and everyday shared-life evidence, even where photographic records are limited and paperwork was previously mishandled.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because they were not satisfied the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Roof Plumber, as required by cl 482.212(3).

What was put to the Tribunal

• The applicant has over a decade of relevant roofing and roof plumbing experience across two countries
• His overseas vocational qualification and Australian Certificate III in Roofing are genuine and relevant
• His actual duties in both his prior and current roles align with the ANZSCO description of a Roof Plumber
• Reference letters and employment records corroborate his skills and work history

The evidence that mattered

• A Certificate of Vocational Education and Training (Roofer), with translation
• A Certificate III in Roofing obtained in Australia
• Reference letters from two former and current employers
• The applicant’s resume
• An employment contract dated November 2020

How the Tribunal decided

The Tribunal checked the applicant’s qualifications for authenticity and was satisfied they were genuine. It compared the duties he actually performed, in both his earlier overseas role and his current Australian role, against the ANZSCO description for Roof Plumber and found an appropriate alignment. On this basis the Tribunal was satisfied the applicant had the necessary skills, qualifications and employment background, meeting cl 482.212(3).

What this means for youOverseas qualifications and work history can satisfy the skills requirement for a sponsored visa if the applicant’s actual duties genuinely match the nominated occupation’s ANZSCO description.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the employer had not demonstrated that the position associated with the nominated occupation of Plumber (General) was genuine.

What was put to the Tribunal

• The business has a genuine, ongoing need for a full-time plumber
• The nominee’s actual duties matched the ANZSCO description for Plumber (General)
• The business had employed the nominee in the role since 2019 and could afford the nominated salary
• Labour market testing showed no suitable local candidate was available
• The nomination met all procedural and payment requirements

The evidence that mattered

• An organisational chart showing eight employees, including the nominee
• Business financial statements and BAS for July 2022 to June 2023
• Employment contracts dated December 2020 and November 2023
• Job advertisements on SEEK, JobActive and Indeed with salary details
• Market salary reports and Plumbing and Fire Sprinklers Award pay rates
• Written submissions on the trade shortage for plumbers

How the Tribunal decided

The Tribunal compared the nominee’s actual duties with the ANZSCO description for Plumber (General) and found they matched closely, applying the approach in Cargo First Pty Ltd v MIBP [2016] FCA 30. Considering the size and nature of the business, its financial capacity to pay the nominated salary, and that the nominee had already been employed full-time in the role since 2019, the Tribunal found the position genuine and full-time. It was also satisfied the salary exceeded the required threshold, employment conditions met Fair Work standards, and labour market testing and payment requirements had been met.

What this means for youA genuine-position refusal can be overturned with strong documentary evidence — an organisational chart, financials, a matching job description and proof the role has actually been performed.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the employer had not demonstrated sufficient financial capacity to employ the identified person for at least two years and pay the required annual market salary rate, based on financial data and work-in-progress projections that were shown to be quotations rather than contracted work.

What was put to the Tribunal

• The business, together with its associated entity, had increased turnover and was profitable
• The identified person had a genuine, ongoing role under the employer’s direct control
• The offered salary of about $70,000 was well above both the market rate and the TSMIT
• The employment contract did not exclude extending the employment period
• All procedural, visa-history and occupation-matching requirements were also met

The evidence that mattered

• Latest financial statements showing turnover of about $1 million and profit of about $70,000 in FY2023
• ASIC registration and BAS statements for the business
• An employment contract dated October 2023 showing a salary of about $70,000
• PAYG payment summaries and payslips showing full-time employment since 2017
• Oral evidence from the nominee and the company director at hearing
• Market salary data for a comparable role

How the Tribunal decided

The Tribunal worked through each requirement of reg 5.19 in turn. On the financial capacity issue, it accepted the latest financial statements showing improved turnover and profit, and found the associated company satisfied the criteria for future employment. It found the offered salary of about $70,000 exceeded both the comparable market salary rate and the TSMIT, and that the identified person had genuinely performed the occupation’s duties for several years. Satisfied that every element of reg 5.19(4) and (5) was met, including the nominator’s capacity to fund at least two years of employment, the Tribunal approved the nomination.

What this means for youA nomination refused over financial capacity can succeed on review with up-to-date financial statements and evidence the business can genuinely fund the role for two years.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the applicant relied heavily on subcontractors rather than employees, had not provided substantial evidence of a genuine need for the position, and the delegate was not satisfied the business could financially support the position for four years or that it was operating at a level consistent with a genuine need.

What was put to the Tribunal

• The business had genuinely employed the nominee full-time in the painting trade since well before the nomination
• Recruitment advertising for the role produced numerous applicants, showing a real vacancy existed
• The business’s income and expense history over several years supported its capacity to pay the nominee’s salary
• The nominee’s duties matched the ANZSCO description for a painting trades worker

The evidence that mattered

• Employment contracts dated January 2020 and July 2023 showing salary rising from about $65,000 to about $75,000 plus superannuation
• Recruitment advertising on Jora, Indeed and Job Active generating multiple applicants
• Five years of financial statements showing income, expenses and subcontractor payments
• An accountant’s statement confirming wages, superannuation and commissions paid
• Evidence of standard business sponsorship approvals
• Oral evidence from the applicant and the nominee at hearing, assisted by interpreters

How the Tribunal decided

The qualitative genuineness test set out in Cargo First Pty Ltd v MIBP [2016] FCA 30 guided the Tribunal’s assessment. It found that the nominee’s proposed duties matched the ANZSCO description of a painting trades worker, and that the applicant’s financial records, recruitment advertising and long employment history with the nominee together supported a genuine, ongoing need for the position, notwithstanding the business’s reliance on subcontractors for other work. Salary, labour market testing and employment condition requirements were also found to be satisfied, and the Tribunal approved the nomination.

What this means for youA long employment history with the nominee, genuine recruitment efforts and consistent financial records can overcome refusal concerns about a business’s reliance on subcontractors.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because at the time of the decision the applicant was not the subject of an approved nomination, so the applicant did not meet cl 482.212(1) of Schedule 2 to the Regulations.

What was put to the Tribunal

• The related nomination application, decided the same day, should be and was approved, resolving the approved-nomination requirement
• The position of Painting Trades Worker was genuine, supported by advertising, a job description and financial records
• The applicant had worked in the occupation with the sponsor for well over two years
• The sponsoring business had the financial capacity to pay the offered salary

The evidence that mattered

• A related nomination decision approving the occupation, handed down the same day
• Advertising records showing recruitment via Jora, Indeed and Job Active
• Signed employment contracts from 2020 and 2023 showing salary increases
• An accountant’s statement showing wages, superannuation and commissions paid
• Evidence of an approved standard business sponsorship covering the relevant period
• Oral evidence from the sponsoring business owner at hearing

How the Tribunal decided

The Tribunal found that because the related nomination for the same occupation had been approved in a separate decision issued the same day, the applicant now had an approved standard business sponsor, satisfying cl 482.212(1). Based on the job description, advertising and financial evidence, the Tribunal was satisfied the position and the applicant’s intention to perform it were genuine, meeting cl 482.212(2). It was also satisfied the applicant had worked in the occupation for at least two years and that the sponsor could meet the salary costs, satisfying cl 482.231. As the primary applicant met the criteria, the family members also met the secondary criteria.

What this means for youA visa refused only because the linked nomination had not yet been approved can be resolved once that nomination succeeds on review — the two applications are closely tied together.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the delegate found the employer was not the standard business sponsor who had last identified the nominee in a nomination approved under s 140GB of the Migration Act, as required by reg 5.19(5)(h)(i).

What was put to the Tribunal

• The employer was in fact the standard business sponsor that had last identified the nominee, and the delegate’s finding was factually mistaken
• The nominee’s work for a related company during a business restructure still counted as employment with an associated entity
• There was a genuine ongoing need for the nominee’s specialised production management skills
• The business, despite a difficult trading history, had the financial capacity to employ the nominee at the required salary
• There was no adverse information that should count against the nomination

The evidence that mattered

• ASIC company records showing the corporate relationship between the employer and a related company during the relevant period
• PAYG payment summaries and tax returns for the nominee from 2017 to 2023
• Financial statements, tax returns and business activity statements showing the business’s turnaround from loss to growing profit
• An employment contract dated July 2023 confirming full-time engagement at about $70,000
• Market salary evidence from Payscale and job advertisements
• Oral evidence from the company director and the nominee at a video hearing

How the Tribunal decided

The Tribunal found the delegate’s reasoning ‘somewhat puzzling’, since Departmental records in fact confirmed the employer was the sponsor that had last identified the nominee. It accepted that the nominee’s employment with a related company during a business restructure counted as employment with an associated entity under the sponsorship condition, given the two entities were related bodies corporate under the Corporations Act. Applying MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264, the Tribunal considered whether the business had the financial capacity to pay the nominee’s salary and, despite a difficult trading history, was satisfied recent revenue growth showed it could. It also accepted the director’s evidence that the nominee was crucial to production management and that the business would need to close without him, satisfying the genuine need requirement, and found the remaining salary and employment condition criteria met.

What this means for youIf a nomination is refused because of a factual error about your sponsorship history, tribunal review can correct the record — keep clear corporate and employment records to prove it.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the employer’s financial information showed the business could not pay the nominee’s full salary plus superannuation, and the delegate concluded the employer did not have sufficient funds to meet payroll, failing reg 5.19(5)(n).

What was put to the Tribunal

• Updated financial statements show the business is solvent, with no debt and positive net equity
• The business has consistently paid the nominee’s salary and superannuation for years
• There is a genuine, ongoing need for the role given the business’s subcontracting arrangements with disability care providers
• Market salary evidence confirms the offered salary meets the required threshold

The evidence that mattered

• 2022/23 financial statements and company tax return showing modest profit, no debt and positive net equity
• PAYG/income statements and superannuation records for the nominee since 2018
• A letter from the employer’s external accountant confirming payroll and operating costs were met
• Job advertisements and salary survey data
• Oral evidence from the nominee and a witness at hearing
• An employment contract dated November 2020

How the Tribunal decided

The Tribunal accepted contemporary financial evidence, four years on from the delegate’s decision, showing the business had no debt, positive net equity and a consistent history of meeting payroll. It found the offered salary of about $55,000 exceeded the TSMIT and was consistent with market rates. The Tribunal also raised, but resolved in the employer’s favour, a concern about whether the Temporary Residence Transition stream was being used appropriately, accepting the applicant’s evidence about establishing a genuine subcontracting business in the care sector. On this basis it found the business had the capacity to fund the position for at least two years.

What this means for youA nomination refused for insufficient financial capacity can be revisited with updated financial evidence showing the business can now meet payroll.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the employer’s nomination for the position of Residential Care Officer had been refused, meaning the applicant did not meet cl 186.223(2) of Schedule 2, which requires an approved nomination.

What was put to the Tribunal

• The related nomination review should succeed, which would resolve the approved-nomination requirement
• The applicant continued to work in the nominated position while the nomination review was on foot

The evidence that mattered

• The Tribunal’s decision in the related nomination review, heard concurrently, approving the nomination
• Oral evidence given at the combined hearing

How the Tribunal decided

Because the Tribunal, in a companion decision handed down the same day, set aside the Department’s refusal of the employer’s nomination and approved it, the Tribunal found the applicant now satisfied cl 186.223(2), which requires an approved and current nomination. The applications of the family members, who depended on the primary applicant’s success, would be determined once the primary application was reconsidered.

What this means for youA visa refused solely because the underlying nomination was refused can be resolved once that nomination succeeds on review — the two matters often need to be run together.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate found a secondary applicant did not meet the PIC 4007(1)(c) health criterion, because the projected health care and pharmaceutical costs to the Australian community over ten years were assessed as exceeding the significant-cost threshold. The delegate declined to exercise the waiver without explaining why.

What was put to the Tribunal

• The projected cost could be reduced by a generic form of the medication
• The family had strong compassionate and compelling circumstances, including long residence, employment and family ties
• The primary applicant’s skills and an approved employer nomination weighed in favour of the waiver
• The secondary applicant would face stigma and limited access to treatment if the family had to return
• The family was financially self-sufficient and privately insured

The evidence that mattered

• Medical reports on the condition and the treatment already in place
• Oral evidence from both applicants at hearing
• Employer confirmation of ongoing employment
• Evidence of family ties in Australia, including citizen relatives
• Published pricing for a generic form of the medication

How the Tribunal decided

The Tribunal was required to accept the Medical Officer’s cost assessment as correct under reg 2.25A(3). Applying the Full Court’s reasoning in Bui v MIMA (1999) 85 FCR 134, it found that whether a cost is ‘undue’ involves an evaluative judgment that can take compassionate and compelling circumstances into account. Weighing long residence, employment, family ties, self-sufficiency and the limited treatment available if the family returned, the Tribunal found the cost significant but not undue, so the health requirement could be waived.

What this means for youA health condition that triggers a significant-cost finding does not automatically end an employer-sponsored application — compassionate and compelling evidence can still support a waiver.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the delegate was not satisfied that the position associated with the nominated occupation, a civil engineer, was genuine, as required by reg 2.72(10)(a).

What was put to the Tribunal

• The business genuinely needed a civil engineer to design and oversee construction of its aluminium structural products
• The scale, structure and financial capacity of the business supported the need for the role
• The position was full-time and matched the tasks of the nominated occupation
• The proposed salary was supported by market salary research and comfortably exceeded the relevant income threshold
• Labour market testing had been properly undertaken

The evidence that mattered

• Project evidence, organisational chart and financial reports
• Position description matched against the ANZSCO occupation
• Employment contract dated July 2023 confirming full-time engagement at about $90,000 plus superannuation
• Job advertisements for comparable civil/structural engineer roles ($80,000-$100,000)
• A Payscale salary survey for civil engineers
• Evidence of labour market testing advertising conducted for 28 days on Indeed and Jora

How the Tribunal decided

The Tribunal took a qualitative approach to genuineness, following Cargo First Pty Ltd v MIBP [2016] FCA 30. It found that the business’s project evidence, organisational structure, financial reports and position description together supported a genuine need for a civil engineer, and that the signed employment contract confirmed the position was full-time. The Tribunal also accepted that the salary of about $90,000 was properly benchmarked against job advertisements and a salary survey, and was satisfied labour market testing and all other nomination criteria were met.

What this means for youCombining project evidence, financial records and a clear position description that matches the ANZSCO occupation description can overturn a refusal based on the position not being genuine.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because they were not satisfied the business was still fulfilling its fundraising contract in the regional centre, or that it would expand there, meaning the requirement for a genuine need for the regional position was not met.

What was put to the Tribunal

• The position was genuinely needed to support the employer’s expansion into the regional market
• The nominee’s specialised experience was central to running the regional operations
• Recruitment for a locally based Australian worker had been unsuccessful
• Client contracts and revenue figures showed real, ongoing business activity linked to that market
• The nominated tasks corresponded to the specified occupation

The evidence that mattered

• The nominee’s employment contract and salary evidence
• Five financial years of statements and tax returns showing growing revenue
• Organisational chart and payroll records
• Signed contracts with national charity clients
• Recruitment advertising and a recruiter’s letter on the response to the advertised role
• Advice from the Regional Certifying Body, and oral evidence from the director at hearing

How the Tribunal decided

The Tribunal considered reg 5.19(9)(c) and (d) and applied Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2021] FCCA 528 on geographically specific regional positions. Despite concerns about extended periods spent overseas and the absence of anyone currently based full-time in the regional centre, the Tribunal accepted the nominee was central to the business’s success and gave the applicant the benefit of the doubt that a genuine, ongoing need for the role in that location existed. It found the remaining criteria — full-time employment for at least two years, an adequate salary benchmarked against market rates, financial capacity and matching occupation tasks — were also satisfied.

What this means for youA regional nomination can survive scrutiny even with gaps in on-the-ground presence, provided there is strong evidence — contracts, revenue and genuine recruitment efforts — that the need for the role in that location is real.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the delegate was not satisfied the majority of tasks the nominee was likely to perform aligned substantially with the tasks of the nominated occupation, ICT Support Technicians nec, as described in the ANZSCO dictionary.

What was put to the Tribunal

• The nominee’s actual day-to-day duties matched the ANZSCO task list for ICT Support Technicians
• The business’s size, structure and use of in-house software supported a genuine need for dedicated IT support
• The nominated salary and employment terms met the relevant thresholds and conditions
• Genuine labour market testing had been carried out before the nomination

The evidence that mattered

• Detailed task-by-task comparison of the nominee’s duties against the ANZSCO occupation description
• Organisational chart, financial statements and company tax return
• Employment contracts dated October 2022 and March 2023 showing a salary of about $75,000
• Job advertisements on Seek and Indeed with salary ranges of $70,000-$80,000
• A Payscale salary survey for the occupation
• Evidence of the employer’s Standard Business Sponsor approval

How the Tribunal decided

The Tribunal decided the matter on the papers without a hearing, applying s 360(2)(a) of the Migration Act. It compared the nominee’s actual proposed duties against the ANZSCO task list for ICT Support Technicians and found a close correspondence, including troubleshooting hardware and software, managing user accounts and maintaining networks. Having regard to the business’s financial profile, organisational structure and operations, the Tribunal was satisfied the tasks matched the nominated occupation and that the position was genuine and full-time. All other criteria, including labour market testing and salary requirements, were also found to be met.

What this means for youA clear, task-by-task comparison between an employee’s real duties and the ANZSCO occupation description can overturn a refusal based on occupation mismatch.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused to approve the nomination because the delegate was not satisfied that the position associated with the nominated occupation, a painting trades worker, was genuine, as required by reg 2.72(10)(a) of the Migration Regulations.

What was put to the Tribunal

• The business had a genuine and ongoing need for a tradesperson due to a national shortage of skilled trades workers
• The director’s own oral evidence explained the difficulty recruiting suitable staff and the resulting need for the position
• All other nomination criteria — sponsorship status, labour market testing, salary and employment conditions — were satisfied
• The role was full-time and matched the tasks of the nominated occupation

The evidence that mattered

• Oral evidence from the company’s managing director on the difficulty finding trades staff
• Signed employment contract showing salary rising from about $55,000 to $80,000 plus superannuation, plus a company vehicle, phone and fuel card
• Evidence of labour market testing showing a market salary range of $50,000-$60,000 plus superannuation
• Evidence the nominee met the required IELTS English language test
• Evidence of the employer’s Standard Business Sponsor approval

How the Tribunal decided

Whether the nominated position was genuine was assessed qualitatively, applying the test in Cargo First Pty Ltd v MIBP [2016] FCA 30. It accepted the director’s oral evidence about the ongoing difficulty recruiting skilled trades staff amid a national shortage, and found the position both genuine and full-time. The Tribunal was satisfied all other criteria — sponsorship status, no adverse information, contract of employment, salary and labour market testing — were also met. As every requirement in reg 2.72 was satisfied, the Tribunal approved the nomination.

What this means for youStrong evidence of genuine business need — such as director testimony, an employment contract, and labour market testing — can overturn a nomination refusal based on the position not being genuine.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because the tasks described in the nominated position closely aligned with a supervisory occupation (Retail Supervisor) rather than the nominated occupation of Retail Manager, so the tasks requirement was not met.

What was put to the Tribunal

• A detailed job description and oral evidence showed the nominee’s tasks matched the ANZSCO Retail Manager description
• There was a genuine need for the position, with the nominee having run the business’s day-to-day operations for over five years
• The position was in regional Australia and could not be filled locally, supported by Regional Certifying Body advice
• The salary and conditions offered were not less favourable than for an equivalent Australian employee, supported by salary survey data

The evidence that mattered

• Regional Certifying Body advice dated March 2018
• Business Activity Statements across multiple reporting periods
• Tax returns and financial statements from 2018 to 2022
• Nominee’s employment contract dated June 2022
• Detailed job description and oral evidence from the director and nominee at hearing
• Salary survey data from Seek and PayScale

How the Tribunal decided

The Tribunal found the position and business were located in regional Australia, so the regional pathway applied. It accepted there was a genuine need for the role, noting the nominee had effectively run the business day-to-day for over five years while the owner remained uninvolved. The Tribunal accepted the Regional Certifying Body’s advice that the position could not be filled locally, and, based on detailed job descriptions and oral evidence, found the majority of the nominee’s tasks matched the ANZSCO Retail Manager description rather than a supervisory role.

What this means for youDetailed job descriptions and oral evidence at hearing can overturn a delegate’s view that a role is really a supervisor position rather than the higher-skilled occupation that was nominated.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because the applicant had answered ‘no’ to a question about prior criminal convictions on an earlier visa application, and found this non-disclosure was deliberate, an attempt to circumvent the migration process, and not a case for the discretionary waiver.

What was put to the Tribunal

• The non-disclosure resulted from an earlier migration agent’s clerical error, not the applicant’s own conduct
• The applicant had disclosed his conviction to the agent in writing before the visa application was lodged
• The error was innocent, unintended and accidental, not a deliberate attempt to mislead
• The applicant has since fully disclosed all convictions in the current application
• Independent witness evidence from two former migration agents corroborated the applicant’s account

The evidence that mattered

• Sworn statement and oral evidence at hearing from the applicant’s former solicitor
• Email and text message records showing the applicant disclosed his conviction to the agent in February 2015
• Statement from a second former agent regarding earlier student visa applications
• A National Police Certificate disclosing both convictions
• A Form 1023 lodged in 2019 attempting to correct the earlier record
• Oral evidence from the applicant given through an interpreter at the Tribunal hearing

How the Tribunal decided

The Tribunal applied the test from Trivedi v MIBP [2014] FCAFC 42, which requires an element of purposeful falsity for PIC 4020 to be engaged, and considered Zitkus v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1881. It accepted the applicant’s oral evidence and two corroborating witness statements from former migration agents, finding the non-disclosure was the result of an agent’s error rather than deliberate deception. Because the applicant had given the correct information to his representative in writing before the earlier visa was lodged, the Tribunal found the false information was innocent, unintended and accidental, and that PIC 4020 was satisfied.

What this means for youAn honest mistake by a migration agent, properly evidenced with corroborating witnesses, can be distinguished from deliberate non-disclosure under the character-related PIC 4020 requirement.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the visa because much of the applicant’s claimed Metal Fabricator experience was part time, which Departmental policy generally treated as not counting towards the two-year work experience requirement, and some experience was unverified.

What was put to the Tribunal

• The legislation itself does not require the two years' experience to be full time — only Departmental policy prefers this
• Extended part-time work, properly evidenced, can be equivalent to two years full-time experience
• The applicant’s part-time role over several years aligned closely with the ANZSCO Metal Fabricator task list
• Earlier full-time overseas experience in the same occupation further supported meeting the requirement

The evidence that mattered

• Employer reference letter confirming part-time Metal Fabricator work since 2015
• Payslips and PAYG payment summaries from the employer
• Invoices issued while working as a subcontractor
• ATO income statements and tax returns for 2014 to 2021
• Payslips and certified translations of five years' full-time overseas work experience

How the Tribunal decided

The Tribunal found that the relevant clause requires two years' work experience in the nominated occupation or a related field, but does not itself require that experience to be full time — that is only a Departmental policy preference, and policy cannot override the plain wording of the regulation. Based on payslips, tax records and reference letters, the Tribunal accepted the applicant’s approximately six years and eight months of regular part-time work, together with his earlier full-time overseas experience, satisfied the two-year requirement.

What this means for youPart-time work experience can count towards the two-year experience requirement for a skilled visa, even though Departmental policy generally prefers full-time work, provided you have solid documentary evidence.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied the business could financially support the position or that it was operating at a level consistent with a genuine vacancy, under the requirement that the nominated position be genuine.

What was put to the Tribunal

• A years-old, unsubstantiated complaint alleging the business employed students beyond their work-hour limits should not be treated as adverse information
• The business had been approved for further nominations and retained its sponsor status since the complaint was made
• A detailed duty comparison showed the nominee’s tasks matched the ANZSCO Sheetmetal Trades Worker description
• Moving the nominee from a subcontracting arrangement to direct employment reflected genuine business growth, common in the construction industry
• The salary and conditions offered met relevant award and market benchmarks

The evidence that mattered

• Task-by-task comparison table against ANZSCO Sheetmetal Trades Worker duties
• Contract of employment dated December 2021
• Records showing the nominee’s prior subcontracting arrangement since August 2017
• Tax returns, financial statements and Business Activity Statements
• Salary survey data from Indeed, Joboutlook and SalaryExpert
• Written response to the Tribunal’s invitation to comment on the adverse information

How the Tribunal decided

The Tribunal qualitatively compared the nominated position’s duties with the ANZSCO task list and found a genuine match, applying the approach in Cargo First Pty Ltd v MIBP. On the adverse information issue, the Tribunal found no evidence to substantiate the historical, unproven allegation and so it did not meet the legal definition of adverse information. The Tribunal accepted the shift from a subcontracting to a direct employment arrangement as consistent with genuine business growth and found the salary and conditions met the required thresholds.

What this means for youAn unsubstantiated historical complaint to the Department does not automatically block a sponsorship nomination if it cannot be proven and the business has continued to be approved since.

Refused on the same ground? Book an appointment and bring your refusal letter.

Why it was refused

The delegate refused the nomination because they were not satisfied the position associated with the nominated occupation of Motor Mechanic was genuine, particularly because there was insufficient evidence the employer maintained a fleet of vehicles.

What was put to the Tribunal

• A detailed duty split showed the nominee spent the large majority of his time on ANZSCO-listed Motor Mechanic tasks
• The role extended to maintaining plant and equipment used in the employer’s rope-access operations, not just road vehicles
• The business had a genuine need for the role given its size, turnover and project workload
• The salary and conditions offered met or exceeded relevant award and market rates
• Labour market testing had been properly carried out before the nomination

The evidence that mattered

• Duty split showing time percentages against each ANZSCO Motor Mechanic task
• Signed employment contract dated August 2021
• Financial statements and profit and loss records for two financial years
• Job advertisements placed on Locanto, JobActive and Seek
• Market salary data from JobOutlook and Talent.com
• Employee list, organisational chart and payslips

How the Tribunal decided

The Tribunal qualitatively compared the position’s duties with the ANZSCO Motor Mechanic task list and found the nominee performed nearly all of them, even though some duties related to maintaining rope-access equipment rather than only vehicles — the approach set out in Cargo First Pty Ltd v MIBP. The Tribunal accepted the position was genuine and full-time, that the salary and conditions met the required income threshold and market rate, and that the employer had properly carried out labour market testing.

What this means for youA nominated position can still be genuine even if the day-to-day duties extend beyond a textbook job description, provided the core ANZSCO tasks are clearly matched with evidence.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the visa because the applicant’s qualifications and employment background were not considered commensurate with the skill level expected for the nominated occupation of Careers Counsellor.

What was put to the Tribunal

• The applicant held two diploma qualifications relevant to the nominated occupation
• She had over five years of continuous, relevant work experience in Australia
• Under the ANZSCO framework, five years' relevant experience can substitute for a formal degree qualification
• Employer reference letters confirmed the tasks she performed matched those of a Careers Counsellor

The evidence that mattered

• Applicant’s statutory declaration
• Employment reference letters from employers
• Copies of her diploma qualifications
• Evidence of continuous employment in the occupation since December 2016

How the Tribunal decided

The relevant criterion required the applicant to have the skills, qualifications and employment background necessary for the nominated occupation. ANZSCO indicates a bachelor’s degree is the usual benchmark for this occupation, but also allows at least five years of relevant experience to substitute for that qualification. After requesting further evidence, the Tribunal accepted the applicant had five years of relevant experience as a Careers Counsellor in Australia and found this satisfied the requirement even without a matching degree.

What this means for youIf your formal qualifications fall short of what’s usually expected for your nominated occupation, several years of relevant, well-documented work experience can be enough to satisfy the skills requirement.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the position associated with the nominated occupation of Carpenter was not genuine. The delegate was concerned the employer had previously nominated the same worker for a different occupation, Building Associate, and was not persuaded by the explanation given for the change.

What was put to the Tribunal

• The change of occupation was explained by the nominee completing formal carpentry qualifications after the first nomination
• The director had since taken over the supervisory duties previously described under the Building Associate role
• The duties actually performed matched the ANZSCO description of a Carpenter, not a Building Associate
• There was a genuine business need for the position given the company’s turnover and number of ongoing projects
• The salary and conditions offered exceeded the relevant award rate

The evidence that mattered

• Organisational chart showing seven employees including carpenters and an apprentice
• Job description matched against the ANZSCO Carpenter task list
• Photographs of the nominee on site performing carpentry tasks
• Financial records showing turnover of over $1 million per year and multiple concurrent projects
• Employment contract and payslips showing pay above the applicable award rate
• Oral evidence of the director at hearing

How the Tribunal decided

The Tribunal accepted that the earlier use of the Building Associate occupation was likely a common practice among migration agents for unqualified tradespeople before that occupation was removed from the skilled list, and that the change made sense once the nominee gained formal qualifications. Comparing the position’s duties with the ANZSCO description for Carpenter, the Tribunal found a genuine correspondence. Having regard to the size of the business, its turnover and the number of ongoing projects, the Tribunal accepted there was a genuine vacancy despite the employer already having other carpenters on staff.

What this means for youA genuine change in the occupation you nominate can be accepted by a Tribunal if it’s properly explained and backed by evidence such as updated qualifications, a clear job description and proof of business need.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination solely on the basis that they were not satisfied the position associated with the nominated occupation was genuine.

What was put to the Tribunal

• The size and operations of the restaurant supported a genuine need for a dedicated Cafe or Restaurant Manager
• All other nomination criteria, including salary, certification and occupation coding, were met
• The nomination process itself was compliant and properly certified

The evidence that mattered

• Evidence about the size of the restaurant
• The written employment contract provided to the Tribunal
• Nomination certification and supporting business sponsor approval documents

How the Tribunal decided

The Tribunal found from the evidence, particularly the size of the restaurant, that the Cafe or Restaurant Manager position was genuine — applying the qualitative, comparative approach to assessing genuineness endorsed by the Federal Court in Cargo First Pty Ltd v MIBP [2016] FCA 30. As every other criterion for approval was also satisfied, the nomination met all requirements.

What this means for youA ‘position not genuine’ refusal can be overturned with clear evidence of your business’s scale and operational need for the role.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the evidence submitted did not demonstrate that the employer had fulfilled its training benchmark commitments during the period of its most recent standard business sponsorship approval.

What was put to the Tribunal

• Aggregate training expenditure across the sponsorship period met the 1% payroll benchmark, even though some receipts fell slightly outside the strict window
• The business had since been re-approved as a standard business sponsor under rules where no training benchmark applied
• The business had the financial capacity to keep employing the nominee, shown by its recent growth
• The nominee had genuinely worked in the nominated occupation for years as the family business expanded its vehicle fleet

The evidence that mattered

• Training benchmark receipts and an accountant’s letter reconciling payroll and training spend
• Financial statements, BAS and ATO tax returns for 2017-2020
• Organisation chart, vehicle registration and insurance records
• Nominee’s employment agreements and PAYG/ATO assessment history 2015-2020
• Evidence of a new standard business sponsorship approval from December 2020

How the Tribunal decided

The Tribunal accepted that the employer’s most recent standard business sponsorship approval, granted in December 2020, was not subject to any training benchmark obligation, so there was no outstanding training requirement to satisfy. It was also satisfied, from detailed financial records and a strong post-COVID growth trajectory, that the business had the ongoing capacity to pay the nominee’s salary for at least two more years, notwithstanding an ATO payment plan and past financial fluctuations.

What this means for youA later, training-benchmark-free sponsorship approval can resolve an earlier training-compliance refusal by the time your case reaches the Tribunal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because they were not satisfied the tasks of the nominated position corresponded to those of a Retail Manager (General), as required by r.5.19(4)(h)(ii)(D).

What was put to the Tribunal

• The nominee had day-to-day responsibility for the full operation of a regional service station
• His duties included budgeting, stock control, staffing, marketing and OH&S compliance
• The role went beyond a retail supervisor’s, given the director’s absence from the site
• There was a genuine need for the position given the business’s expansion to three sites
• The position could not be filled locally, evidenced by extensive advertising and unsuccessful applicants

The evidence that mattered

• A position description and task list covering pricing, marketing, budgeting and staff management
• Records of local marketing and community involvement
• Advertising records and details of 18 applicants found unsuitable
• Oral evidence from the director and the nominee
• Regional Certifying Body advice

How the Tribunal decided

The Tribunal formed its own view that the nominee’s real day-to-day responsibilities for the regional store — budgeting, staffing, marketing and compliance — matched the ANZSCO description of a Retail Manager rather than a mere supervisor. This followed the qualitative approach to genuineness endorsed in Cargo First Pty Ltd v MIBP [2016] FCA 30, noting that Regional Certifying Body certification is not determinative per Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31. It was also satisfied there was a genuine need for the role and that it could not be filled locally.

What this means for youFor a regional position, detailed evidence of real day-to-day responsibility — not just a job title — is what proves the role matches the nominated occupation.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination on the basis that the business had not demonstrated the financial capacity to pay the nominee’s full-time salary for at least two years.

What was put to the Tribunal

• The nominee had remained continuously employed for years after the refusal, showing ongoing capacity to pay
• A change in company ownership, with a well-resourced new franchisor-owner, strengthened the business’s outlook
• A renegotiated lease and rising sales had improved profitability
• The offered salary had been increased to meet the applicable modern award rate

The evidence that mattered

• Financial statements and trust tax returns for 2016-2020
• PAYG records showing the nominee’s salary history since 2017
• Company ownership and directorship change documents
• Restaurant Industry Award classification advice and an updated employment contract
• Organisation chart showing 21 employees

How the Tribunal decided

Despite years of reported losses and a franchise term nearing its end, the Tribunal was satisfied on balance that a change of ownership to a well-funded new operator, together with a renegotiated lease and continued employment of the nominee since the refusal, showed the business could sustain the nominee’s salary for at least two more years. Once the salary was raised to meet the correct modern award classification, the Tribunal was also satisfied the terms and conditions were no less favourable than for an equivalent local worker, and that the training benchmark obligation no longer applied to the business’s current sponsorship period.

What this means for youIf your employer’s finances were weak at the time of refusal, evidence of a turnaround or new ownership by the time of the Tribunal hearing can still succeed.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the employer had not provided sufficient evidence of meeting its training benchmark obligations for its most recently approved standard business sponsorship period.

What was put to the Tribunal

• The training benchmark requirement no longer applied because it had been repealed for sponsorship approvals made after March 2018
• The business’s most recent sponsorship approval fell after the repeal, so the SAF levy regime applied instead
• The nominee had worked continuously in the nominated occupation and the business could sustain the salary
• The business had continued trading despite a three-year nearby construction disruption and COVID-19

The evidence that mattered

• BAS returns and financial statements for the relevant years
• Payroll records, PAYG summaries and Notices of Assessment for the nominee
• The nominee’s employment contract dated June 2020
• Additional post-hearing evidence of salary and superannuation payments from November 2018 to November 2020

How the Tribunal decided

The Tribunal found that the training benchmark requirements in the Regulations had been repealed from March 2018 and no longer applied, even to earlier applications not finally decided by that date. Because the employer’s most recent sponsorship approval was granted after that date and was instead subject to the SAF levy, there was no training benchmark obligation left to satisfy for the review period. All remaining nomination criteria, including salary and continuity of employment, were satisfied on the financial and payroll evidence.

What this means for youIf your nomination was refused over an old training-benchmark shortfall, check whether that requirement was later abolished for your sponsorship period.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because they were not satisfied the tasks performed in the nominated position corresponded to the tasks of the specified occupation, Retail Manager (General). This meant the business was found not to meet the relevant regional Direct Entry stream requirement of the Regulations.

What was put to the Tribunal

• The employee performed the core ANZSCO tasks of a retail manager despite some formal limits in the franchise agreements
• The business had a genuine need for the position and would struggle to operate without it
• The position could not reasonably be filled by a local Australian citizen or permanent resident
• The employee exercised real day-to-day discretion over pricing, purchasing, staffing and budgeting

The evidence that mattered

• Franchise agreements for both cafe brands operated by the business
• Employee’s oral evidence describing his day-to-day duties
• Financial statements and BAS lodgements showing business viability
• A prior job advertisement for the position, given limited weight due to lack of outcome evidence
• Supporting advice from the relevant Regional Certifying Body
• Employment contracts from 2016 and 2019

How the Tribunal decided

The Tribunal accepted that although the franchise agreements formally limited some decisions, such as core product sourcing, the employee in practice exercised real discretion over pricing, marketing, staffing and budgeting, consistent with the core ANZSCO tasks of a Retail Manager. It accepted evidence of a genuine need for the role and of genuine, if imperfect, efforts to recruit locally, despite a family relationship between the employer and the employee. All other statutory criteria, including remuneration and business genuineness, were also satisfied.

What this means for youEven where a franchise agreement appears to limit day-to-day control, evidence of real practical discretion over core managerial tasks can still satisfy the nominated occupation requirement.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because there was insufficient evidence lodged with the Department to show that the nominee’s terms and conditions of employment would be no less favourable than those provided, or that would be provided, to an Australian citizen or permanent resident performing equivalent work at the same location.

What was put to the Tribunal

• The venue was not a ‘limited service restaurant’, so the caveat restricting the Chef occupation did not apply
• The nominee’s duties matched the core ANZSCO tasks of a Chef, distinct from a Cook
• The offered salary and conditions matched or exceeded market benchmarks and the applicable industry award
• The employer and its associated entity were lawfully and actively operating their businesses
• The position was genuine given the business’s size, structure and trading history

The evidence that mattered

• Menu, photographs and website information about the venue
• Restaurant Industry Award 2010 and multiple online salary and job advertisement sources
• Organisation chart, signed position description and employment contract dated July 2020
• ASIC searches, financial reports and tax returns for the employer and its associated entity
• Oral evidence from the venue manager and the nominee at hearing

How the Tribunal decided

The Tribunal found the venue offered full table service with a diverse, changing menu and was not a fast-food or limited-service outlet, so the caveat restricting the Chef occupation for such venues did not apply. It was satisfied the nominee’s duties matched the core tasks of a Chef rather than a Cook, that the offered salary exceeded both the market rate and the required income threshold, and that the position was genuine having regard to the size and structure of the business. All other criteria for approval were also met.

What this means for youIf your Chef nomination is refused over the ‘limited service restaurant’ caveat, detailed evidence of your menu, service style and premises can show the caveat does not apply.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because they were not satisfied the employer had met its training benchmark obligations during its last standard business sponsorship period, and did not consider it reasonable to disregard the requirement.

What was put to the Tribunal

• Training fund contributions, though paid slightly after the sponsorship period, should still count because the money reached the same industry fund
• The nominee had been continuously employed in the nominated occupation since the visa was granted
• The business retained the financial capacity to pay the nominee’s salary despite a temporary drop in profit from large contracts
• COVID-19 had slowed but not caused the loss of the business’s client contracts

The evidence that mattered

• Two industry training fund contribution receipts (one of about $5,000, one much smaller)
• Financial statements and BAS for 2017-2019
• Signed employment contract dated December 2016
• PAYG summaries for the nominee, 2015-2019
• Oral evidence about client numbers and contract values given at hearing

How the Tribunal decided

The Tribunal accepted that, although the training fund contributions were paid after the relevant sponsorship period, they were made to the same industry training fund and so carried no materially different training benefit than if paid earlier, making it reasonable to disregard the technical timing shortfall. It was satisfied on the financial evidence, including explanations for reduced profit due to machinery hire on large contracts, that the business retained the capacity to keep employing the nominee for a further two years.

What this means for youA late training-fund payment is not necessarily fatal if you can show it reached the same fund and caused no real shortfall.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the employer had previously been barred for six months from sponsoring workers due to a record-keeping and pay-conditions breach, and was not satisfied it was reasonable to disregard this adverse information.

What was put to the Tribunal

• The earlier breach was not deliberate and the employer had been fully compliant since
• The sanction occurred several years before this nomination and outside the current sponsorship period
• The nominee had done nothing wrong and would be unfairly penalised by a refusal
• The business had kept proper records and evidence of compliance since the breach
• It was reasonable, in all the circumstances, to disregard the adverse information

The evidence that mattered

• Company registration documents, activity statements and financial reports
• An organisational chart, employment contract and wage/PAYG records
• Training expenditure receipts
• Oral evidence from the director and the nominee about the nominee’s employment history

How the Tribunal decided

The Tribunal found adverse information existed because of the earlier sponsorship bar, then considered whether it was reasonable to disregard it. Weighing the age of the breach, the absence of deliberate wrongdoing, the employer’s subsequent compliance, and the hardship a refusal would cause the nominee and her family, the Tribunal found it reasonable to disregard the adverse information. It was satisfied all other nomination criteria, including the nominee’s employment history and future terms, were met.

What this means for youA past sponsorship breach does not automatically end a nomination — genuine remorse, subsequent compliance and hardship to those affected can persuade the Tribunal to disregard it.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the employer’s training expenditure during its sponsorship period fell short of the required 1% of payroll (Training Benchmark B), and found it was not reasonable to disregard the shortfall.

What was put to the Tribunal

• Additional training expenditure incurred shortly after the sponsorship period should be counted towards the benchmark
• The shortfall arose from a genuine misunderstanding about timing, not an intention to avoid the obligation
• The employer had otherwise fully complied with all requirements over 17 years of operating the business
• The same training evidence had already been accepted in an earlier, successful nomination
• The nominee had performed the nominated role continuously for seven years

The evidence that mattered

• Financial statements showing gross payroll figures for the relevant years
• Training invoices from two registered training organisations
• Evidence of an earlier approved nomination that relied on the same training information
• PAYG payment summaries and the nominee’s employment contract
• Oral evidence from the company director

How the Tribunal decided

The Tribunal found the training expenditure shortfall was real, but considered whether it was reasonable to disregard the requirement. It weighed the employer’s long, otherwise-compliant history, the director’s candid admission of an honest mistake about timing, the proximity of the extra spending to the relevant period, and that the shortfall was later made good. On balance it treated this as an appropriate case to exercise the discretion to disregard the shortfall and approved the nomination.

What this means for youFalling slightly short of the training benchmark is not automatically fatal — a genuine, well-evidenced explanation and an otherwise strong compliance record can persuade the Tribunal to exercise its discretion in the employer’s favour.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate cancelled the visa because the visa holder had ceased employment with his sponsor for more than 90 consecutive days without a new approved nomination in place, breaching condition 8107(3)(b).

What was put to the Tribunal

• The visa holder had since secured a new job and was pursuing a new sponsorship nomination, which was later approved
• The circumstances leading to job loss were largely beyond his control and followed a Fair Work dispute with his former employer
• He had lived in Australia since 2012, had significant community ties and a financial investment in a home
• Departmental policy generally discourages cancellation where the circumstances were beyond the visa holder’s control
• He had not been uncooperative with the Department or Tribunal

The evidence that mattered

• New approved Subclass 482 nomination dated May 2019
• Employment contract for a new sous chef role dated January 2019
• Evidence of a Fair Work complaint and subsequent compensation
• Migration agent submissions on hardship, length of residence and community ties

How the Tribunal decided

The Tribunal accepted the ground for cancellation was made out because the visa holder had breached condition 8107(3)(b). However, in exercising its discretion whether to cancel, the Tribunal weighed the fact he was now the subject of a new approved sponsorship nomination, his length of residence and community ties, and the circumstances in which his earlier employment ended shortly before he applied for permanent residency. On balance, the Tribunal decided the visa should not be cancelled.

What this means for youIf your sponsored visa is at risk after losing your job, quickly securing a new sponsor and nomination can be a decisive factor in a Tribunal deciding not to cancel your visa.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the employer provided no supporting evidence of its financial capacity to employ the nominee full-time for at least two years, as no documents accompanied the original online application.

What was put to the Tribunal

• The employer’s revenue and profitability had grown substantially in recent years
• The nominee held a highly specialised project administration role in the business
• The nominee had already worked in the role for around six years
• Comprehensive financial records now demonstrated ongoing capacity to pay the nominated salary
• The salary offered, though at the lower end, was within an acceptable market range

The evidence that mattered

• PAYG payment summaries and ATO tax assessment notices from 2013 to 2018
• Company financial statements showing rising profits in 2017 and 2018
• A current signed employment contract
• Market salary research for a comparable senior role
• Oral evidence from the director and the nominee about day-to-day duties

How the Tribunal decided

Having initially been unable to make a favourable decision, the Tribunal held a second hearing after the employer supplied comprehensive financial and employment evidence it had not provided originally. It found the business’s improving profitability supported its ongoing capacity to employ the nominee, and that the nominee’s specialised duties and salary, while modest, fell within an acceptable market range. All criteria under r.5.19(3) were found to be met.

What this means for youIf your nomination is refused for lack of supporting evidence, providing complete financial and employment records at review can turn the outcome around.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because the applicant had not provided crucial information required to satisfy the Direct Entry nomination criteria under r.5.19(4).

What was put to the Tribunal

• The business was actively and lawfully operating in Australia
• There was a genuine need for a paid employee under the nominator’s direct control
• The nominee had considerable relevant experience, having previously worked with the applicant
• The terms and conditions offered were no less favourable than for an equivalent Australian worker
• Additional information supplied at review addressed the gaps the delegate had identified

The evidence that mattered

• Documents confirming the business’s active and lawful operation
• An employment contract for the nominee
• Evidence of the nominee’s prior work history and experience
• Information addressing training-related requirements

How the Tribunal decided

The Tribunal worked through each requirement of r.5.19(4) in turn, relying on additional evidence supplied at review that had not accompanied the original application. Finding the application form, fee and certification requirements met, the business genuinely and actively operating, the employment terms adequate, and no adverse information present, the Tribunal was satisfied all criteria for a Direct Entry nomination were met.

What this means for youA nomination refused for missing information can often be turned around at review once the missing evidence is properly compiled and presented.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused the nomination because, although the business was growing with substantial contracts, they were not satisfied the nominated occupation was consistent with the core nature of the business.

What was put to the Tribunal

• The scale of the business’s air-conditioning and sheet-metal projects genuinely required a dedicated construction supervisor
• The nominee’s actual duties substantially matched the ANZSCO tasks for a Building Associate
• The nominee had relevant experience exceeding the three years required for the occupation
• The occupation was exempt from labour market testing as a skill level 2 role
• The pay and conditions offered were within the market range for the occupation

The evidence that mattered

• Emails, an organisational chart and a Safe Work Method Statement
• Profit and loss statements and contractor/payroll payment records
• Photographs of the nominee at worksites supervising trades
• The employment contract and salary benchmarking from job market websites
• Details of the construction projects the business was engaged in

How the Tribunal decided

The Tribunal considered not just whether duties matched the ANZSCO majority test, but whether the position genuinely was what it purported to be — the approach taken in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091. It found the business genuinely needed a supervisor for its expanding construction projects, that the nominee’s tasks matched the Building Associate description, and that pay and conditions met the threshold requirements. On this basis it found the position genuine and approved the nomination.

What this means for youDetailed evidence of the actual day-to-day tasks performed — site photos, project records, organisational structure — can prove a position is genuine even when it does not sit neatly within the sponsor’s stated core business.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate refused to approve the nomination because they did not consider the position associated with the nominated occupation of Residential Care Officer to be genuine, as required by reg 2.72(10)(f).

What was put to the Tribunal

• The nominee’s role genuinely required the skills and tasks of a Residential Care Officer
• The nominee had substantial prior care experience, including overseas, that supported the role
• The nominee held a positive skills assessment confirming his suitability for the occupation
• An independent care recipient’s guardian could corroborate the day-to-day duties performed
• The business had genuinely tested the labour market and received no suitable applicants

The evidence that mattered

• Oral evidence from the nominee/director describing daily care duties
• Independent witness testimony from a retired nurse manager who engaged the nominee’s services
• A positive VETASSESS skills assessment as a residential care worker
• The employment contract specifying an annual salary of about $70,000
• Evidence of a four-week job advertisement that produced no responses

How the Tribunal decided

The Tribunal found the nominee was in fact performing a majority of the duties described in the ANZSCO occupation guide, based on detailed oral evidence corroborated by an independent witness who had observed the nominee’s work over several years. It accepted the VETASSESS skills assessment and the genuineness of the contract and salary offered. It also found the labour market testing requirement satisfied because advertising had produced no suitable candidates. On that basis it was satisfied all criteria under reg 2.72 were met.

What this means for youIndependent, corroborating evidence of the real day-to-day duties performed can overcome a ‘position not genuine’ refusal.

Refused on the same ground? Book an appointment and bring your refusal letter.

Decided under the rules as they stood at the time. Some of those rules have since changed — check the current position before relying on this.

Why it was refused

The delegate cancelled the visa under s.116(1)(b) because the visa holder had ceased employment with his sponsoring employer for more than 90 consecutive days, breaching visa condition 8107(3)(b).

What was put to the Tribunal

• The employment ended because of the sponsor’s own misconduct and financial collapse, not any fault of the visa holder
• The visa holder acted diligently to secure a new sponsor despite one prospective sponsorship falling through
• A new, approved employer had a fresh nomination pending for the same occupation
• The new employer gave first-hand evidence of the visa holder’s skill and value to the business
• Cancellation would cause serious practical hardship disproportionate to the breach

The evidence that mattered

• Oral evidence of the visa holder about underpayment and his former employer’s conduct
• Fair Work Ombudsman correspondence confirming the former employer had entered liquidation
• Evidence of the new employer’s approved sponsorship and pending nomination
• Oral evidence from the new employer about the visa holder’s skills and reliability
• An organisational chart for the new employer’s restaurant

How the Tribunal decided

The Tribunal accepted the ground for cancellation was made out, since more than 90 days had passed since employment ceased, but this did not require mandatory cancellation. Weighing the discretionary factors, it found the termination arose from circumstances beyond the visa holder’s control, a new approved sponsor had a nomination pending, and the new employer gave convincing evidence of his skill and the business’s need for him. These factors outweighed the delay in securing new sponsorship.

What this means for youIf your sponsoring employment ends through no fault of your own, prompt evidence of a new sponsor’s support and a pending nomination can persuade the Tribunal not to cancel your visa.

Refused on the same ground? Book an appointment and bring your refusal letter.