1319241 (Migration)

[2015] AATA 3286

1319241 (Migration) [2015] AATA 3286 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Patrick John Murphy
Mrs Evelyn Mary Spillane
Mr Noah Murphy

CASE NUMBER:  1319241

DIBP REFERENCE(S):  BCC2013/1505337

MEMBER:John Cipolla

DATE:7 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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.186.211 of Schedule 2 to the Regulations

Statement made on 07 August 2015 at 4:43pm

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 Immigration on 9 December 2013 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 20 September 2013. 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 (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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Electrician (General) (ANZSCO 3411-11). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.211 of Schedule 2 to the Regulations because she concluded that the applicant was not the holder of the required mandatory registration or licence to perform the work of an Electrician in NSW as he was undertaking work under the supervision of a licenced Electrician Mr Robert Chidiac.

6. On 18 December 2013 the applicant lodged a review of the delegate’s decision with the Tribunal. 

7. The Tribunal received a submission from the applicant’s representative dated 4 July 2014 which it has duly considered.  The Tribunal differently constituted conducted a hearing on 5 June 2015.  The Tribunal has had regard to the recording of that hearing.  The Tribunal received a post hearing submission dated 22 June 2015 which it has had regard to.  The main points from the submission are as follows:

   ·The submission addresses the definition of ‘mandatory’ for registration. licensing or professional membership noting that it is considered mandatory for visa purposes only if every person working in that occupation is required to have some form of registration, licensing or professional membership.  Further to this that it is not considered mandatory if a person can perform work in the occupation without registration or similar, even if the work has to be performed under supervision.

   ·The submission posits that there is no single definitive source that covers registration, licensing, or membership across occupations identified within the ANZSCO framework. The reason being that registration and licensing requirements are generally managed at State/Territory level through industry or occupation specific legislation.

   ·The submission makes reference to the ANZSCO dictionary definition for both Architect and Electrician which states that registration or licensing is required. The submission notes that if a Member decides that a registration or licensing is mandatory, then a tradesperson certificate is what was required at time of application as that certificate enables the applicant to perform all the duties of the position of Electrician (General).

   ·The submission posits that the applicant was eligible to hold a Supervisor Certificate at time of application, that he had been awarded a National Craft Certificate and completed the national standards requirements for Electricians in Ireland in November 2001.

   ·The representative provided evidence from Trades Recognition Australia which proves that no further studies were required for the applicant to have his trade recognised in Australia.

   ·The submission makes reference to the converse provisions that apply in Ireland for Australian Electricians seeking recognition namely the completion of an apprenticeship in Electrical Trades.

   ·The submission notes that the applicant’s qualifications completed in 2001 and his work experience up until time of application in June 2013 were sufficient to establish that he had the requisite skills for the position.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Licensing, registration and membership requirements

8. Clause 186.211 applies to all primary applicants if it is mandatory in the State or Territory where the nominated position is located to hold a licence, registration or membership of a professional body to undertake tasks of a kind to be performed in the occupation to which the position relates.  In these cases, the applicant must hold, or be eligible to hold such licence, registration or membership at the time of the visa application. 

9. Specifically clause 186.211 states:

   If it is mandatory, in the State or Territory in which the position to which the application relates is located, that a person:

   (a)      hold a licence of a particular kind; or
   (b)      hold registration of a particular kind; or
   (c)      be a member (or a member of a particular kind) of a particular professional body;

   to perform tasks of the kind to be performed in the occupation to which a position relates, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

10. The Tribunal notes that ‘mandatory’ is not defined in the legislation.  The Macquarie Dictionary defines the term variously as ‘obligatory’ and ‘allowing of no option’.  The relevant Departmental policy states that registration, licensing or professional membership “is not considered mandatory if a person can perform work in the occupation without registration or similar, even if the work has to be performed under supervision.” [1] 

    [1] PAM Sch2 Visa 186 – Employer Nomination Scheme, ‘Mandatory Registration, Licensing or similar’ at [40]

11. In this case, the Tribunal has first had regard to the requirements in ANZSCO, which sets out what is expected for the position of ‘Electrician (General) in Australia as follows:

    Installs, tests, connects, commissions, maintains and modifies electrical equipment, wiring and control systems. Registration or licensing is required.

12. The Tribunal has considered the pre-hearing and post hearing submissions and evidence provided at the review hearing.  The Tribunal agrees with the general contention in the submission that the registration of the occupation of Electrician (General) is not mandatory due to the fact that a person within this skill set is able to work under the supervision of a registered Electrician.  It conversely follows that an Electrician who works under supervision is able to satisfy the requirements of cl.186.211 of the Regulations.

13. The Tribunal finds that the holding of registration is not mandatory or obligatory as in NSW a person with the requisite skill set is able to work under the supervision of a registered Electrician. 

14. Accordingly, the Tribunal finds that the applicant meets cl.186.211.

    CONCLUSION

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

    DECISION

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

    ·cl.186.211 of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member