HU (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, by Mr Hu. The Administrative Appeals Tribunal was required to determine whether Mr Hu met the criteria for this visa, specifically whether the nominated position was the subject of an approved nomination as required by the Migration Regulations 1994. Mr Hu's representative argued that the court's findings in *Singh* were persuasive, but the Tribunal considered whether those findings, made in relation to a Subclass 187 visa, were applicable to Mr Hu's Subclass 186 application.

The primary legal issue before the Tribunal was whether Mr Hu satisfied clause 186.223 of Schedule 2 to the Regulations, which mandates that the position to which the application relates must be the subject of an approved nomination. This includes requirements that the applicant was identified in the nomination as a Subclass 457 visa holder, that the position was the subject of a specific declaration, that the Minister approved the nomination, and that the nomination had not been withdrawn. The Tribunal also considered the relevance of the *Singh* decision, which concerned a different visa subclass and stream, to the present case.

The Tribunal reasoned that while *Singh* dealt with a Subclass 187 visa in the Direct Entry stream, the wording of the relevant clauses, specifically clause 187.233 and clause 186.223, were substantially the same. The Tribunal found that the differences between the clauses were minor and did not alter the core requirements concerning an approved nomination. Therefore, the Tribunal considered the findings in *Singh* to be persuasive. The Tribunal concluded that the nominated position was not the subject of an approved nomination that met the specific requirements of clause 186.223 for the Temporary Residence Transition stream.

Consequently, the Tribunal affirmed the decision not to grant Mr Hu the Subclass 186 visa, as the requirements for the Temporary Residence Transition stream had not been met.