Brito Rosas (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Brito Rosas, who sought review of a decision to refuse her Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The primary dispute concerned whether Ms. Brito Rosas met the criteria for an approved nomination, which was a prerequisite for her visa application.

The central legal issue before the Tribunal was whether Ms. Brito Rosas had satisfied clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which requires that the nomination for the position be approved by the Minister. This clause, along with others detailed in Attachment A, outlines the requirements for a valid nomination, including its approval, non-withdrawal, the absence of adverse information, the continued availability of the position, and the timeliness of the visa application relative to the nomination approval.

The Tribunal reasoned that the applicant's sponsor, Mien Salon Spa Pty Ltd, had its nomination application refused by the Department, a decision which the Tribunal had previously affirmed. Consequently, the nomination for the position to which Ms. Brito Rosas's visa application related had not been approved. The Tribunal noted its sympathy for Ms. Brito Rosas's personal circumstances, including the reasons for the nomination refusal being beyond her control and her concerns about returning to Venezuela. However, the Tribunal's jurisdiction was limited to assessing whether the regulatory criteria, specifically the requirement for an approved nomination, had been met. The Tribunal relied on the principles established in *Singh v MIBP* [2017] FCAFC 105, which emphasised that the visa application is assessed against a specific, approved employer nomination, highlighting the "once off" nature of this process.

Ultimately, the Tribunal affirmed the decision not to grant Ms. Brito Rosas the Subclass 186 visa, as she failed to meet the criterion of having an approved nomination. The Tribunal also affirmed the refusal of the visa for the secondary applicant, who did not meet the criteria as a family unit member and had not demonstrated he met the primary criteria independently.