[Mjcr1990]

Hi All,

Today I received notice in which my Employer Nomination (subclass 186) visa was declined as I did not meet the following critera:

Identifies a need for the nominator to employ an identified person, as a paid
employee, to work in the position under the nominator's direct control; and

…
(h)(AA) there is a genuine need for the nominator to employ the person identified
under subparagraph (a)(ii), as a paid employee, to work in the position under
the nominator's direct control;

I am a Digital Marketing Manager (applying under Marketing Specialist) for an ecommerce site - I control, manage and plan ALL advertising for an online business.

As you can see the reason above states there is no genuine need for me.

This decision was based on the documents submitted.

The decision was made within 5 months with NO request for more info (I understand this is allowed but have been told by my agent this is very rare)

Looking back on my application I did feel this was quite light with evidence, however I provided everything my agent suggested.

There were suggestions within the decision notice as follows:

I find the nominator has not provided and information relating to an intention to diversify its business activities, such as, statement of need, evidence of appropriate market research, business plans detailing proposed expansion and timelines, or financial budgets covering expenditure and anticipated revenue.

I can provide all of this information.

However I have a feeling my agent was expecting them to ask for more info and this is why he submitted a 'light' application.

This was reiterated by when I was told I need my medical I called him to confirm and he stated - 'my advise is to wait until they ask for one as it is only valid for 12 months and it could take longer for your application to be viewed by a case manager'

I have no found that this agent no longer works for the company I used.

I was planning to appeal this decision on the to the ATT on the following ground:

Decision was made quickly 5 months (as opposed to 9 month waiting time), declined for lack of evidence and no further evidence asked for.
Poor advice from a registered migration agent (I have emails stating what is 'needed' to support my application)

I will gather all documents that were suggested in my refusal + additional evidence to prove genuine need for my skills at this business.

Does this sound the correct route to take?

Also I will not be using my current agent as they requested $5k for the appeal (A situation I think I am in solely due to their lack of preparation of the application)

Or am I misunderstanding the point of the appeal and cannot add additional evidence?

Thanks in advance

 

[CIPL]

Hello Mjcr,

You can submit additional documents with your AAT appeal on the refusal of your 186 nomination. In fact you will not have any chance of winning the appeal unless you submit a detailed legal case as to why the AAT should remit your employer nomination to the DHA with a recommendation that they grant the employer nomination.

The rate of remittals by the AAT i.e. cases where the applicant has won their AAT appeal have decreased from 68 % to only 30% so it is only the best legal cases and arguments that succeed with the AAT.

I would recommend that you not state that the decision was only 5 months and that the agent was not asked to submit further documentation as the time of a decision as this is not relevant and the DHA is not obliged to request further documentation. On their website they state that they can legally make a decision on the documentation submitted.

You will also have to appeal your visa application when it is refused.

You will need a FOI Freedom of Information request to see exactly what your agent said in your employer nomination application. I am concerned that the Case Officer CO for DHA said "information relating to an intention to diversify its business activities". If your agent has suggested that the business is diversifying then that is going to require a good deal of supporting documentation. Also did your agent state that the position is a "new" position due to expansion of the business.

You may be dissatisfied with your previous agent however the fee that you were quoted $5,000 was very low by advice standards. To engage the best lawyers with experience at the AAT would be conservatively $ 15,000.

My advice would be that you do not do this yourself as there is too much at risk and you will only get one chance to make this right.

Whoever you engage to lodge your AAT appeal, make sure that you get copied into everything that they submit and they submit everything to you first for your approval.
This ensures that they provide a strong, well researched legal argument and prepare fully for a hearing before the Tribunal.

Is you employer happy to appear before the Tribunal and give evidence. It is essential that the employer is properly prepared and ready to answer searching questions by the Tribunal Member for over 2 hours. This will be central to winning this case.

There is a statutory time limit on appeals to the AAT being lodged, generally 21 days. If you lodge after the time limit, there is no further rights available to you so please be careful and lodge before this time limit is exceeded.

Best of luck with your appeal.