Siljac (Migration)

[2023] AATA 377

Siljac (Migration) [2023] AATA 377 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tomislav Siljac
Mrs Vesna Siljac
Mr Tadej Siljac

REPRESENTATIVE:  Mr Ernie Hu

CASE NUMBER:  1923072

HOME AFFAIRS REFERENCE(S):          BCC2018/2188081

MEMBER:Karen McNamara

DATE:28 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223(2) of Schedule 2 to the Regulations.

Statement made on 28 February 2023 at 10:18am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – equipment hire manager – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 186.223(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 May 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant Mr Tomislav Siljac (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position/occupation of Equipment Hire Manager (ANZSCO 149915).

5. On 12 August 2019, the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, because on 18 June 2019, the nomination application lodged by Intermost Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.

6. The delegate also found that the second named applicant, Mrs Vesna Siljac and third named applicant Mr Tadej Siljac could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants applied to the Tribunal on 19 August 2019, for review of the delegate’s decision.

8. On 19 January 2023, Mr Tomislav Siljac appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mladen Kljaic (the nominator) in the related matter for the nomination review application (AAT Case file 1918075). The related matters were heard concurrently in a combined hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. The applicants were represented in relation to the review. The representative attended the hearing.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a position

13. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

14. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. The nominating employer, Intermost Pty Ltd applied to the Department for approval of a nomination in relation to the position/occupation of Equipment Hire Manager (ANZSCO 149915). That nomination was refused by the Department and consequently the applicants visa applications were refused.

16. Intermost Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1918075). On 28 February 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.186.223(2) of Schedule 2 to the Regulations.

17. The second named applicant, Mrs Vesna Siljac and third named applicant Mr Tadej Siljac applied on the basis of being a member of the family unit of the first named applicant (Mr Tomislav Siljac). The applications by Mrs Vesna Siljac and Mr Tadej Siljac will be determined by reference to the outcome of Mr Tomislav Siljac’s application on remittal to the Department for consideration.

18. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

    DECISION

19. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223(2) of Schedule 2 to the Regulations.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.