Why are 858 visa applications refused?
An 858 visa application is refused when the decision-maker is not satisfied of a criterion in Schedule 2, Part 858 of the Migration Regulations 1994, and the notice gives reasons, as Home Affairs’ “Subclass 858 National Innovation visa” page explains.
The table connects the criteria of the 858 visa with findings to look for in your decision record. Its legal references are to the Migration Regulations 1994; Departmental explanations come from Home Affairs’ “Subclass 858 National Innovation visa” page.
| Criterion | Why it fails | What the decision record shows | What to do |
|---|---|---|---|
| Written invitation and the achievements it states — 858.211 and 858.212(3) | The area and achievements must match the invitation, with documents proving the claims made in the EOI. | Findings comparing invited achievements with lodged evidence. | If review is available, address the invited achievements. Otherwise, prepare a new EOI claiming only what you can prove. |
| Internationally recognised exceptional and outstanding achievement — 858.212(2)(a) | International recognition or exceptional achievement is not established. Home Affairs describes superior abilities, acclaim and a sustained record. Direction 120 assesses whether you are “significantly high-calibre”, weighing unfavourable information on balance. | Assessment against Direction 120’s section 9 guidance. | Answer each finding with evidence; ART members apply the same guidance. |
| Still prominent in the area — 858.212(2)(b) | Recent exceptional achievements are not established. | Findings about the recency of your evidence. | Identify recent evidence of prominence. |
| Asset to the Australian community — 858.212(2)(c) | Contribution to the nation as a whole is not established. | Findings about benefit to Australia. | Provide evidence of economic, social, cultural, academic, artistic or sporting benefit. |
| Employment or establishment in the area — 858.212(2)(d) | Difficulty obtaining employment or establishing yourself in Australia in the area; Home Affairs does not count income outside the field. | Findings about establishment evidence. | Address opportunities, Australian organisation letters and nominator information. |
| Form 1000 and the nominator — 858.212(2)(e) | The nominator must have the required Australian or eligible New Zealand status, or be an Australian organisation, and have a national reputation in the same area. | Findings about status and national reputation. | Check Form 1000 and evidence that the nominator meets the definition. |
| Under 18 or 55 and over — 858.212(2)(f) | Exceptional benefit to the Australian community is not established. | Findings about exceptional benefit. | Address professional plans, a senior job offer or contracts with prominent Australian organisations. |
| Holder or former holder of a 491 or 494 visa — 858.213 | The required three years of holding the visa had not elapsed at application. | Findings about visa history. | Check the three-year date before applying again. |
| Health, character and integrity — public interest criteria 4007, 4001 and 4020 | Health or character requirements are unmet, or bogus documents or materially false or misleading information were supplied. | Findings under the named public interest criterion. | PIC 4020(1) refusal carries a three-year exclusion affecting the family unit. PIC 4007 permits a conditional waiver of the health cost/access limb, not tuberculosis or public-health threats. |
An application without Form 1000 is not processed: Schedule 1 item 1113 makes it a valid-application requirement. Home Affairs also considers immigration history, including earlier refusals.
No breakdown of 858 refusal reasons is published in the sources used here, so no reason can be labelled “most common”. Two particularly 858-specific requirements are the invitation-match rule and the nominator’s national reputation.
EOI not invited or 858 visa refused?
Not invited means your Expression of Interest has not led to an invitation. Home Affairs’ “Submitting your Expression of Interest” page says an EOI is not a visa application, and an invitation is not a pre-assessment. Because section 338 of the Migration Act 1958 concerns refused visa applications, an uninvited EOI provides no visa-refusal decision to take to the ART.
Home Affairs’ “After submission” page, updated 30 September 2026, says there are no progress updates. An EOI expires after two years, with an email on expiry. Re-submit only after a significant change in circumstances or new achievement claims, withdrawing the old EOI first.
Refused means the Department has decided a lodged visa application. Home Affairs’ National Innovation visa page says the notice gives reasons and review information. The $6,235 main-applicant charge, set by the Migration Regulations 1994 from 1 July 2026, is not refunded after refusal.
Can an 858 refusal be reviewed at the ART?
Yes for most onshore applicants; only in restricted circumstances for offshore applicants; never through a nominator’s own review right. Sections 338 and 347A of the Migration Act 1958 set the conditions below.
The ART is the current tribunal, replacing the former AAT.
If you applied in Australia
Yes, under section 338(2), where the visa was applied for in Australia, can be granted here and was not decided in immigration clearance. Regulation 858.411 allows an 858 grant in Australia. Section 347A(2) requires you to be in Australia when applying for review.
If you applied from outside Australia
Only under section 338(7A), covering a permanent visa applied for outside Australia and grantable in or outside Australia. The Act’s combined conditions require you to have been in Australia when refused and to be here when applying for review under section 347A(3).
If you are the nominator
No. Section 338(5) gives sponsors and nominators review rights only for visas that cannot be granted in Australia. The 858 can be granted here, so that provision does not give its nominator a review right.
If the refusal was on character grounds
A section 501 refusal falls outside section 338. If a delegate made the decision, section 500 provides the review route instead. Ask an Australian migration lawyer to check that route and its deadline promptly.
The 28-day limit and the ART fee for an 858 review
Lodge within the time limit. Section 347 of the Migration Act 1958 allows 28 days after notification, or 14 days in immigration detention. The ART cannot extend it.
Pay the current fee. Gazette notice C2026G00343, under regulation 4.13A of the Migration Regulations 1994, sets the fee at $3,727. The ART’s fee-increase notice, captured on 20 August 2026, confirms it applies to payments on or after 1 July 2026.
Meet the payment deadline too. The ART’s “Fees” page, captured on 22 June 2026, says payment must be made by the application deadline.
Financial hardship: regulation 4.13(4) reduces the fee to 50% if the Principal Registrar considers the full fee would cause financial hardship. The ART’s “Fees” page, captured on 22 June 2026, instructs applicants to pay the full fee or 50% by the deadline, then lodge the reduction form before review ends. The reduction decision is not reviewable.
Refunds: regulation 4.14 provides a 50% refund if the decision is set aside, varied or remitted, and a full refund if it was not reviewable.
Older fee figures: the ART’s fee page captured on 22 June 2026 gave $3,580 for 2025–26, not the current fee.
ART processing times are not published in the sources this page relies on.
Does Direction 120 apply at the ART?
Processing order: no. Section 4(2) of Direction No. 120 excludes the ART from its processing order, along with remitted or substituted cases.
Assessing exceptional achievement: yes. Section 4(3) requires ART members to apply section 9’s guidance. Direction 120 took effect on 25 July 2026 and revoked Direction 112.
Section 9(1) says its factors are not a checklist. Section 9(3) includes indicators such as research grants, influential doctoral research and qualifying earnings or an Australian employment offer. Section 9(5) requires assessment on balance, including unfavourable information. Evidence should address the actual refusal findings rather than merely count indicators.
Applying again after an 858 refusal
A new EOI. Home Affairs’ “After submission” page permits re-submission only after significant changed circumstances or new achievement claims. Its EOI form asks about earlier EOIs and their status. Prepare the National Innovation visa Expression of Interest around provable new claims.
A new written invitation. Regulation 858.211 requires one before application. Home Affairs’ “After submission” page gives 60 days from invitation to apply, with no extension.
Section 48 while you stay in Australia without a substantive visa. Section 48 of the Migration Act 1958 restricts applications following a qualifying refusal since last entry. Regulation 2.12 does not prescribe Class BX, so a fresh 858 application must be made outside Australia in that situation. Pending ART review does not lift the bar, and leaving and returning on a bridging visa does not reset it.
Section 48 does not apply to someone holding a substantive visa; bridging-visa refusals and refusals under sections 501, 501A or 501B do not trigger it. These distinctions need checking against your record.
No further stay conditions. Under section 46(1A), conditions 8503, 8534 or 8535 make an onshore application invalid unless waived. This is separate from section 48.
PIC 4020 refusal. PIC 4020(2) imposes a three-year exclusion following a PIC 4020(1) refusal, affecting you and your family-unit members.
New charges. The Migration Regulations 1994 require the charge again: $6,235 for the main applicant from 1 July 2026.
Can an 858 visa be cancelled after grant?
Yes. The Migration Act 1958 provides several cancellation powers; grant does not remove them.
- Incorrect information — section 109: cancellation can follow a section 107 notice, with 14 days for a permanent visa holder to respond. Non-compliance need not be deliberate and can date from any time.
- Section 116: section 117(2) protects a permanent visa holder from section 116(1) cancellation while in Australia and immigration cleared on last entry. It does not close the separate powers in sections 116(1AA), (1AB) and (1AC).
- Outside Australia — section 128: cancellation can occur without prior notice. A notice follows; cancellation is revoked if the holder shows the ground does not exist.
- Character — section 501: character grounds support cancellation.
- Family — section 140: linked family visas can also be cancelled when the primary holder’s visa is cancelled under specified powers.
858 success rates and refusal numbers
The Home Affairs Report on the Migration Program 2024–25, dated 11 December 2025, reports these Global Talent category figures.
| Program year | Global Talent category lodgements | Program outcome (places) | Grant rate |
|---|---|---|---|
| 2021–22 | 8,698 | 8,776 | 99.0% |
| 2022–23 | 7,159 | 5,000 | 99.5% |
| 2023–24 | 6,228 | 5,000 | 98.6% |
| 2024–25 | 2,331 | 4,000 | 98.2% |
The same report gives a 90.1% Distinguished Talent category grant rate for 2024–25. Global Talent figures include National Innovation visa outcomes from 6 December 2024; NIV grants are not published separately.
No separate 858 refusal count is published in these sources. Lodgements and places in one year are not the same applications, so subtraction does not establish refusals. See the fuller series of 858 grant rates and lodgements for context, not a prediction for an individual application.
When an Australian migration lawyer helps after an 858 refusal
An Australian migration lawyer helps by checking the decision and the available process, rather than predicting an outcome. The review can cover:
- each finding against Part 858 and the written invitation;
- review eligibility, location conditions and the notification date;
- ART review versus a fresh EOI and offshore application;
- evidence and submissions addressing Direction 120’s section 9 guidance.
The ART’s “Immigration and citizenship” page, captured on 29 August 2026, says a registered practitioner, an Australian lawyer with a practising certificate, a close family member, or the nominator or sponsor may represent you. Only practitioners and lawyers may charge. Representation is distinct from having a review right of your own.
Home Affairs’ “Using a legal practitioner” page says no lawyer can speed up processing or guarantee a visa, and you remain responsible for accuracy. Read more about when an Australian migration lawyer helps with evidence and deadlines.
Review and other options after an 858 refusal
Tribunal review: the guide to reviewing an 858 refusal explains the ordinary 28-day limit, fee and applicant conditions under the Migration Act 1958. The ART can affirm the refusal or set aside, vary or remit the decision.
A request after the tribunal decides: consider ministerial intervention under section 351. The Migration Act 1958 allows the Minister to substitute a more favourable decision in the public interest but imposes no duty to consider a request. Home Affairs requires a tribunal decision first.
Applying again outside Australia: check why an onshore 858 is barred after a refusal where section 48 applies and Class BX is absent from regulation 2.12.
Before a decision: if the Department has put adverse information to you, the guide to natural justice on an 858 concerns responding before refusal, not reviewing an existing refusal.
Judicial review is separate: section 477 of the Migration Act 1958 gives 35 days to apply to the Federal Circuit and Family Court, Division 2, with an extension possible in the interests of justice.
Frequently asked questions
Can my 858 visa be approved after a rejection?
Yes, a grant remains possible after review or a fresh application, but neither route guarantees it. Review can set aside or remit the refusal; a fresh application needs a new EOI and written invitation under regulation 858.211. After an ART decision, section 351 permits Ministerial intervention without a duty to consider the request.
What is the most common reason an 858 is refused?
No breakdown is published in the sources used here. Part 858 includes the invitation-match rule and the nominator’s national reputation requirement; your notice identifies the findings in your case.
How long after an 858 refusal can I apply again?
There is no single waiting period established by these sources. You need a new EOI meeting Home Affairs’ re-submission conditions and a new invitation. Section 48 affects onshore applications without a substantive visa; PIC 4020(2) adds a three-year exclusion following a PIC 4020(1) refusal.
Can my nominator appeal the refusal?
No. Section 338(5) of the Migration Act 1958 covers visas that cannot be granted in Australia, whereas the 858 can.
Does an ART review stop section 48?
No. Section 48 counts a qualifying refusal whether or not the application has been finally determined; pending review does not lift the bar.
After a refusal, ask an Australian migration lawyer to read each finding against Part 858, identify any review right and check the 28-day lodgement and payment deadline.
Enquiry details
The site enquiry form accepts questions addressed to Australian Migration Lawyers. A reference appears only after the email send is accepted and its status recorded. If contacting a qualified practitioner directly, provide:
- Name
- Notification date
- Application location: in Australia or outside Australia
- Location when refused
- Current location
- Message: the findings or deadline you want checked
Do not wait for an enquiry response before addressing a review deadline.