Have you lodged a nomination application to sponsor an overseas worker for a Subclass 482 Temporary Skill Shortage (TSS) visa with the Department of Home Affairs and had it refused? Although it would be concerning to receive news of such a decision, this might not be the end of the road as you may be able to appeal the decision to the Administrative Appeals Tribunal (AAT). Lodging an appeal provides you with the opportunity to have your application reviewed by a ‘new set of eyes,’ with the possibility of a different outcome on your case.
Similarly, if your proposed foreign worker has had a subclass 482 visa refusal (whether related to the refused nomination or otherwise), they may also appeal the subclass 482 visa rejection decision to the AAT, provided that they lodged the visa application onshore in Australia.
Seeking A Review By The AAT? You Need To Act Quickly
And so, as you can see, a review of the refusal decision may be possible. If you intend to appeal the subclass 482 nomination refused decision and/or your proposed foreign worker seeks to apply to the AAT to have the subclass 482 TSS visa refusal decision reviewed, there are some important factors that you each need to consider, one being the strict time limits that apply. If either of you intends to proceed with the review at the AAT, you need to act quickly. If you lodge the review application after the deadline has expired, then you will lose your right to an appeal. The time limit to apply for a review by the AAT cannot be extended.
Consider Whether It Is Worth Pursuing A Review By The AAT
Another important point to keep in mind is the fact that just because you may be able to apply for a review of the decision does not necessarily mean that you should in every case. Whether it is worth pursuing an appeal will depend on the circumstances of each individual case. If the nomination application and/or visa application is refused because the requirements under the migration provisions have not been met, then the refusal decision will remain unchanged following an appeal, because the AAT will assess the application against the same legislation as the Department.
Determining whether each requirement for nomination approval or visa grant is not always black and which. This is where there may be room to argue your case before the AAT. This may be the case, for example, in regards to the genuine position criterion. You need to provide as much evidence as possible to support your claim that your business meets this requirement. And so if the Department is not convinced that this criterion is met, having another chance to persuade the AAT that the position that you are seeking to fill is indeed genuine could be worthwhile. Again, the individual facts and circumstances of the case will determine whether there is any merit in proceeding with an appeal. This is where seeking professional advice is important, to help you to make an informed choice about the best way forward.
Also, consider the long waiting times that you can expect if you do decide to proceed with a review of a subclass 482 TSS visa refusal or if you have had a subclass 482 nomination refused. It may be a better option to re-lodge the application to the Department, or to apply for another type of visa (if all requirements are met).
As you can see from the discussion so far, the decision on whether to proceed with an appeal of a subclass 482 visa refusal or if your business has had a subclass 482 nomination refused is not an easy one, with a number of factors to consider.
In this article, we explore how the appeals process works, as one option of what you can do if your business has had a subclass 482 nomination refused and/or if your potential foreign sponsored worker has had a subclass 482 visa rejection. Our discussion includes an outline of the role and function of the AAT, what the AAT can decide, how to apply to the AAT to have your application reviewed, the cost of applying for an AAT review, what types of information to provide and when an AAT hearing may take place.
We also take a look at what other avenues you can take if your business has had a subclass 482 nomination refused and/or if your potential foreign sponsored worker has had a subclass 482 TSS visa refusal.
We begin our discussion by taking a look at the AAT review process.
Administrative Appeals Tribunal Review
To start with, let us consider what is the role of the AAT in migration cases?
What Is The AAT?
The AAT is a statutory body which has the power to review decisions made under the Migration Act 1958 and Migration Regulations 1994 by the Department of Home Affairs.
In conducting a review, the AAT must consider the case afresh and make a decision that is correct in law. It has the power to overturn decisions and to substitute another decision, or return the case back to the Department for reconsideration with directions. The AAT is required to provide a review that is fair, just, economical, informal, quick and proportionate.
The AAT appeals process is a merits review, which means that it considers afresh the claims of the review applicant and any additional information which has been put forward with the application for review. The AAT must consider a valid application based on the applicable law, being the Migration Act and the Migration Regulations. It needs to decide whether it is satisfied that the requirements of the nomination application are met at the time of its decision.
The migration provisions prescribe the types of decisions that can be reviewed by the AAT, who may seek a review of a decision, how an application for review must be made, the time limits within which applications for review must be lodged, and the application fee payable for a review.
The refusal decision letter sent by the Department will specify whether the decision can be reviewed by the AAT and who can apply for a review.
What Can The AAT Decide?
The AAT may vary (change) the decision; set aside the decision and substitute a new decision; or send the matter back to the Department to make a new decision. Alternatively, the AAT can affirm the refusal decision, meaning that it agrees with the Department’s decision to refuse the application, in which case the refusal decision will still stand.
If the AAT holds a hearing into your case and you fail to attend, it will dismiss your review application, and the refusal decision will remain unchanged.
What Is The Time Limit To Apply For An AAT Review?
Be mindful that strict time limits apply. The time limit to lodge an application for a review varies, depending on the type of decision. The refusal notification letter that you receive from the Department of Home Affairs will specify the time limit to apply for an AAT review.
Note that the AAT has no power to extend the time limit to lodge an application for a review. And so it is critical that if you are intending to apply to the AAT to have the refusal decision reviewed, you must ensure that you do so in a timely manner to keep within the time limit. Otherwise, you will lose the right to appeal the decision.
Subclass 482 Nomination Refused
The period for making an application to the AAT for review of a subclass 482 nomination refused decision ends at the end of 21 calendar days after the day on which notice of the refusal decision is received.
Subclass 482 Visa Refusal
Where the associated subclass 482 visa application has also been refused, that decision too may be appealed to the AAT if the visa applicant lodged the visa application onshore.
The period for making an application to the AAT for review of a subclass 482 visa rejection decision ends at the end of 21 calendar days after the day on which notice of the refusal decision is received.
If the related visa application has been refused because of a nomination refusal, and a review of that visa refusal is also with the AAT, then both applications will usually be heard by the same AAT Member. The AAT will first make a decision on the nomination application, before it proceeds to decide the visa application.
How Can You Apply For A Review Of The Subclass 482 Visa Rejection or Nomination Refusal Decision?
If your 482 nomination is refused, you can apply to the AAT for a review of the refusal decison online.
Similarly, if your proposed foreign worker has received a subclass 482 TSS visa refusal, then they can lodge an application for review of the refusal decision online.
Using the online system, you can upload any relevant documents and information during the review process, and view and copy documents that you have previously submitted.
How Much Does It Cost To Apply For An AAT Review?
The AAT application fee for a review is $3,153. This fee may be reduced by 50% if the AAT determines that the full payment has caused, or is likely to cause, severe financial hardship to the review applicant.
The AAT will also refund 50% of the full fee if it makes a favourable decision on your case.
What Will Happen During The Course Of The Review By The AAT?
As each case is different, the review process will vary from case to case. But generally, you can expect the following process to take place during the course of a review of your case by the AAT:
- the AAT will send to you an acknowledgement letter to confirm that the application has been received. They will also inform the Department of your application and request the Department to provide all relevant documents about your case to the AAT
- your case will be allocated to an AAT Member
- the AAT Member will review the documents
- the AAT will invite you to attend a hearing, and/or to provide information or to comment or respond to information
If there will be a hearing into your case, before the hearing takes place, the AAT may:
- ask you to provide further information
- invite you to comment on any information that the AAT considers would be the reason, or a part of the reason, for not changing the decision under review
- invite you to nominate other persons who could give evidence or suggest other evidence or materials that the AAT may obtain
The AAT can make a decision without inviting you to a hearing if the case can be decided in your favour based on the information that it has.
If a hearing into your case does take place, it is an opportunity for you to present information to the AAT and to discuss why you disagree with the decision under review.
What Happens After You Have Applied For A Review?
Once you have applied for a review of the 482 nomination refused decision, you will receive a confirmation letter from the AAT. The AAT will also notify the Department that they have received the review application and will ask the Department to provide any documents or files that it has that relate to the decision.
If your proposed overseas worker applies for a review of a subclass 482 visa refusal decision, they will receive confirmation from the AAT.
The review process will vary, depending on the circumstances of the case. As part of the review,the AAT may:
- seek further information
- invite you to comment on any information that the AAT believes would be part of the reason for affirming (or confirming) the decision of the Department
- invite you to appear to provide oral evidence and present arguments at a hearing (in some cases, this may be by telephone or videoconference) if a decision cannot be made based solely on your application and other documents submitted
- invite you to nominate other people who can provide evidence
- invite you to suggest other evidence or materials that the AAT may obtain as part of the review.
What Information Should Be Provided To The AAT Where A 482 Nomination Is Refused?
The Department will provide all of the relevant files and documents relating to the decision under review to the AAT. But you can also supply to the AAT new information that supports your case.
You can make written submissions or provide documentary evidence at any stage of the review.
You should provide a copy of the department’s decision, or any other material that you believe supports your application, including a statement explaining why you disagree with the Department’s decision.
Provide up-to-date and current evidence to the AAT so that it can properly assess the application.
Relevant information to provide to the AAT where a 482 nomination is refused may include the following (depending on your circumstances):
- ASIC business name extract
- ASIC current and historical extract
- Standard Business Sponsor status or evidence that you have executed a labour agreement with the Government
- Business tax returns, financial statements that include a detailed profit and loss statement and balance sheet, and business activity statements lodged with the ATO
- Current organisational structure chart (including current and proposed employees, and their position titles and Australian resident status)
- Roles and duties of the nominated position or occupation and how they relate to the position description in ANZSCO
- Employment contract or letter of offer that complies with relevant awards for the nominated occupation or position (if any)
- Salary surveys, advertisements, payroll reports and PAYG statements that relate to equivalent work in the same location
- Visa status of the nominee, and information about the nominee’s English language ability, such as English language test results
- Information about why a caveat does not apply in this case, if the nominated occupation is subject to a caveat
You should provide as much relevant information to the AAT pertaining to your case so that it can make a decision without the need for a hearing. If the AAT is satisfied with the information that you provide, then a favourable decision may be possible without the need for a hearing. This potentially means a quicker outcome on your case.
If a hearing does take place, the AAT Member will ask you about your nomination application and consider all of the information that you present. Generally, this will include the documents you have given to the AAT about your case.
In some cases, the AAT Member may announce the decision at the end of the hearing. The Member may send you written reasons for the oral decision, in which case you will be sent the reasons within 14 days after the hearing.
Any information that you present to the AAT Member is important evidence for them to make a decision. Preparing this evidence well in advance of the hearing can assist you to present your case and help the AAT Member to make a decision.
Can You Appoint Another Person Such As A Migration Agent To Represent You?
Yes, you can nominate a person (such as a migration agent) to represent you in the preparation and running of your case. A representative can provide written submissions and documentary evidence and contact the AAT on your behalf.
Your representative may also accompany and assist you at any meeting or hearing arranged by the AAT. Your representative may be invited to comment on matters at a hearing, but they cannot make an oral presentation other than in exceptional circumstances.
You can also choose to nominate a person (such as a migration agent) to receive correspondence on your behalf. If you nominate an authorised recipient, all correspondence will be sent to that person and will be taken to have been sent to you.
How Long Will The AAT Review Process Take?
You can expect a long wait time until a decision is made by the AAT on your review application.
As a guide, between October 2022 and March 2023, 50% of nomination cases were finalised within 1,231 days, and 95% of cases were finalised within 1,361 days.
In the same period, 50% of temporary work visa cases were finalised within 1,107 days, and 95% of cases were finalised within 1,478 days.
Consider Whether Pursuing A Review By The AAT is Warranted
Before proceeding with a review, it is recommended that you seek professional advice from a migration agent to assess your case and to determine whether it is worth pursuing a review of the application to the AAT. Remember, the AAT will base the decision on exactly the same legal provisions as the Department, and so if the application was refused because you did not meet the requirements for nomination or visa approval, then it would not be worth proceeding with a review. Just because you can does not always mean that you should. Consider the extended period that would be spent pursuing a review. You should only do so if you believe (and have received professional advice to the effect that) you meet all required criteria for approval of the nomination or visa.
A key benefit of proceeding with a review of your case is the fact that you can provide new information to the AAT reflecting your business’ and the visa applicant’s circumstances since you submitted your nomination or visa application.
But if you do so, you need to be prepared for a long wait until a decision is made on your application by the AAT. After assessing your circumstances, you may decide that re-lodging a complete application with better evidence could be a better option.
Or perhaps another visa program would suit you and your proposed foreign employee better, provided you each meet the relevant requirements.
The best option to take can only be determined on a case-by-case basis. Equipped with the right information will help you and your proposed sponsored foreign worker to make the best decision for each of you going forward.
Get More Information
We have prepared a series of detailed guides which provide further information about visa refusals. You can access them by clicking on the links below:
Skilled Visa Options For Selected Occupations
Please refer to our series of articles on the skilled visa options that are available for selected occupations below:
Employer Sponsored Regional Visa
For information on the subclass 494 regional employer sponsored visa, please see the following articles:
Employer Sponsored Visa
To learn about an employer sponsorship visa, including the subclass 482 TSS visa, please see the following articles:
To learn about applying for a skilled visa, please see the following articles:
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Contact us to book a no-obligation consultation to find out more about what you can do if you have had a subclass 482 nomination refused and/or your proposed sponsored foreign worker has had a subclass 482 visa refusal.
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In conclusion, we note that the above discussion provides an overview of the potential options that you can take when a subclass 482 nomination is refused and/or your proposed foreign worker has a subclass 482 visa rejection, including how the AAT review process works and other potential avenues that you can take going forward.
Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you have had a nomination application refused, or your proposed foreign worker has had a subclass 482 TSS visa refusal, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this.
For up-to-date advice about what you can do if you have had a subclass 482 nomination refused and/or your proposed sponsored foreign worker has had a subclass 482 visa rejection. book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.