GENA (Migration)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision to refuse an employer nomination for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream. The applicant for the visa was Mr. Gena, and the secondary applicants were his family members. The employer nomination had been refused by a delegate of the Minister, and the nominator sought review of this decision by the Tribunal. The Tribunal affirmed the decision to refuse the nomination.

The primary legal issue before the Tribunal was whether the employer nomination satisfied the requirements of clause 187.233 of the Migration Regulations 1994. This clause outlines various conditions that must be met for a nomination to be approved, including that the nominated position must be located in regional Australia, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons, the position must remain available, and the visa application must be made within six months of the nomination approval.

The Tribunal reasoned that the nominator had failed to satisfy subregulation 5.19(4) of the Regulations, which was a prerequisite for the nomination. Although the Tribunal received allegations of fraud from an anonymous source regarding the employer sponsoring family members, it stated it placed no weight on these allegations in reaching its decision. The Tribunal advised the visa applicants that a requirement for visa grant was an approved nomination, and if the Tribunal affirmed the refusal of the nomination, they would not satisfy this requirement. Consequently, the Tribunal affirmed the decision not to grant the Subclass 187 visas to the secondary applicants, Mrs. Gena and her sons, as they did not meet clause 187.311.