The Federal Court of Australia is currently analysing an important legal issue under the Employer Nomination Scheme (Subclass 186).
The core question is straightforward but critical:
Does the law allow an employer to lodge repeated nomination applications for the same visa applicant, particularly after a nomination has been withdrawn?
This question arises from the interpretation of Clause 186.242 of Schedule 2 of the Migration Regulations 1994 (Cth), which defines the nomination requirements for Subclass 186 visas.
What Does an Actual Law Say?
Under Clause 186.242, a Subclass 186 visa application must meet the following conditions:
The Requirements
- The position must be nominated in an approved nomination application that clearly identifies the visa applicant and matches the position stated in the Subclass 186 visa application (Labour Agreement stream).
- The Minister must approve the nomination.
- The nomination must not have been withdrawn.
Questions Before the Federal Court
The Court examined two closely connected legal questions.
Question 1: Can Employers File Repeated Nominations?
This question becomes relevant where an employer attempts to lodge another nomination for the same visa applicant, for example, when:
- An initial nomination is refused
- A nomination is withdrawn, intentionally or by mistake
- Errors are identified in the original nomination
- Here, a fresh nomination is required to keep the visa application valid
Question 2: Can Withdrawal Errors Be Corrected?
Clause 186.242(4) explicitly requires that a nomination must not have been withdrawn.
This raises serious legal concerns. If an employer withdraws a nomination, even unintentionally, the visa application may immediately fail to meet the legislative requirements.
The question before the Court is whether migration law allows:
- a withdrawn nomination to be reinstated, or
- a replacement nomination to cure the defect.
If the answer is no, even minor administrative mistakes could permanently invalidate a Subclass 186 application.
Why This Matters
These questions have direct and serious consequences.
For Employers:
- Whether there is any “second chance” after a nomination error
- How much risk is involved in withdrawing a nomination
- How to plan nomination strategies without risking your visa
For Visa Applicants:
- Whether their permanent residency pathway survives the nomination issues
- Understanding vulnerability to employer errors
- Assessing the security of a visa application
Key Takeaways from Subclass 186 Repeated Nominations
This Federal Court decision demonstrates that Subclass 186 is a strictly regulated visa whose nomination requirements must be met precisely at all times. Clause 186.242 provides a limited opportunity for correction once a nomination is withdrawn, and the legislation is not specifically in favour of multiple nominations for the same visa application.
Useful Advice from Growmore Immigration
At Growmore Immigration, we strongly recommend that both employers and visa applicants exercise caution with Subclass 186 nominations. While awaiting clarity from the Federal Court, the following best practices can help minimise risk and avoid delays:
- Treat every nomination as critical; assume there may not be a second chance.
- Keep clear records of all nomination steps.
- Seek professional advice early, before any issues arise.
- Double-check before withdrawing to ensure it’s intentional and necessary
By following these steps, employers and applicants can protect their Subclass 186 applications and stay compliant with strict nomination rules.
If you need personalised guidance, contact Growmore Immigration today for expert advice and support.
Email: info@growmore.one
WhatsApp: +61 434 202 021
Phone: +61 3 8764 3334