Siljac (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), under the temporary residence transition stream. The primary applicant was Mr Tomislav Siljac, with his family members, Mrs Vesna Siljac and Mr Tadej Siljac, applying as members of his family unit. The dispute arose from the refusal of the visa applications, which followed the refusal of a related position nomination by the Department of Home Affairs. The decision was made by Member Karen McNamara of the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether the applicant, Mr Tomislav Siljac, met the requirements of clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause pertains to the approval of a nominated position for the purpose of the visa application. Specifically, the Tribunal had to determine if the nominated position of Equipment Hire Manager, which had initially been refused by the Department, had subsequently been approved and met the other conditions stipulated in the regulations, such as the nomination not being withdrawn, the absence of adverse information, the continued availability of the position, and the timely lodgement of the visa application.

The Tribunal found that the nominating employer, Intermost Pty Ltd, had applied for approval of the nomination for the Equipment Hire Manager position. Although this nomination was initially refused by the Department, leading to the refusal of the visa applications, the Tribunal had previously set aside the Department's decision and substituted a new decision to approve the nomination. Consequently, the Tribunal concluded that Mr Tomislav Siljac satisfied clause 186.223(2). The applications of the other family members were to be determined by reference to the outcome of the primary applicant's application.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister. The direction was that the first named applicant, Mr Tomislav Siljac, met the criteria under clause 186.223(2) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.