1509147 (Migration)

[2016] AATA 3261

1509147 (Migration) [2016] AATA 3261 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Glenn Hunter

CASE NUMBER:  1509147

DIBP REFERENCE(S):  BCC2015/621968

MEMBER:Carolyn Wilson

DATE:12 February 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the 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 12 February 2016 at 1:07pm

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 22 June 2015 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 25 February 2015. 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 Plumber (General) (ANZSCO 214111). 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 they found the applicant was not eligible to hold a licence to perform the occupation.

6. The applicant appeared before the Tribunal on 12 February 2016 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant’s provisional licence meets the requirement that he hold a licence to undertake the tasks of the occupation.

   Licensing, registration and membership requirements

10. 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.

11. The applicant is employed in Western Australia and is therefore subject to the Plumbers Licensing and Plumbing Standards Regulations 2000 which mandates licensing.The ANZSCO entry for Plumber also states that registration or licensing is required for this occupation.

12. The Western Australian Department of Commerce provides the following information on licensing for Plumbers in that state:

    Western Australia’s system for regulating plumbing work protects consumers and the community by ensuring that only suitably qualified people who hold plumbers licences granted by the Plumbers Licensing Board are legally entitled to carry out plumbing work.

    …

    The Board issues six different plumbers licences.  All plumbing licence holders are authorised to undertake plumbing work but the scope of the authorised work varies with each licence. 
    A plumbing contractor is required to complete higher qualifications than a plumbing tradesperson.  A restricted permit is granted to an electrician or gasfitter to enable that skilled person to also perform particular plumbing work.

    …

    [The 6 different licences]:

    Plumbing contractor’s licence is for applicants who already hold a tradesperson’s licence and who intend to direct and control plumbing tradespersons, and issue notices and certificates of compliance for plumbing work.  A plumbing contractor’s licence authorises a plumber to work on water supply plumbing, sanitary plumbing and drainage plumbing, unless the licence has limiting conditions placed by the Board.

    Tradesperson’s licence is for applicants who have completed training and obtained qualifications in plumbing.  A tradesperson’s licence authorises a plumber to work under the general direction of a plumbing contractor on water supply plumbing, sanitary plumbing and drainage plumbing, unless the licence has limiting conditions placed by the Board.

    Tradesperson’s licence (drainage plumbing)…

    Provisional tradesperson’s licence is for applicants who have obtained qualifications or competencies in plumbing outside of Australia and intend to obtain a Western Australian plumbing qualification and apply for a tradesperson’s licence.  Applicants from other Australian administrations or from New Zealand should apply for a licence by mutual recognition.

    Provisional tradesperson’s licence (drainage plumbing)…

    Restricted plumbing permit…[1]

    [1] >

    The Department of Commerce provides further information on the Provisional tradesperson’s licence for plumbers:

    The provisional tradesperson’s licence enables a plumber from a country other than Australia or New Zealand to complete localisation training and undertake plumbing work for up to a year.  It is expected that the holder of a provisional tradesperson’s licence will complete a Certificate III in Plumbing (Migrant Gap Training) to become eligible for a tradesperson’s licence.

    A person with a provisional tradesperson’s licence is authorised to carry out plumbing work under the supervision of a licensed plumbing contractor or the holder of a tradesperson’s licence.[2] 

    [2] >

    The delegate refused the application as they found the applicant was not eligible for a licence at time of application because he was only eligible for a provisional licence.  This meant he was required to undertake further study and work only under supervision.  This finding is consistent with the Department’s Procedural Advice Manual (PAM3) which states:

    If, for visa purposes, registration, licensing or professional membership is mandatory… the registration, licensing or professional membership held must not impose further requirements or limit the ability of the person to perform the full range of tasks and the person must not require further training or on-the-job supervision:

    • an applicant with conditional or provisional registration, licensing or professional membership that requires them to undergo additional safety or occupational training or to work in supervised workshops does not satisfy 186.211 but
    • continuing professional development requirements of fully registered or licensed applicants are acceptable, however, and such applicants satisfy 186.211.[3]

    [3] PAM3 – Migration Regulations – Sch2 Visa 186 – Employer Nomination Scheme – Mandatory registration, licensing or similar.

13. The Tribunal has considered the policy in PAM3, but is not bound by it. 

14. The Tribunal notes that at time of application the applicant provided evidence that he was eligible for the Provisional tradesperson’s licence as a plumber, and had made a valid application for the licence.  The Provisional licence was granted to him on 20 February 2015. He has since obtained the Tradesperson’s licence, which was granted on 20 October 2015.

15. The Tribunal notes the applicant completed his plumbing apprenticeship in the UK and has worked as a qualified plumber since 2008.  The applicant gave oral evidence that his duties at work have not changed since he commenced working for his sponsoring employer.  That is, he has always undertaken the tasks of a kind to be performed in the occupation of plumber.  He was employed by his employer as an experienced plumber, and has been paid the award rate as such. He acknowledges the terms of the provisional licence meant he had to work under the supervision of a licenced plumber.  In reality he has always worked in a team with other plumbers, as for safety reasons they do not work alone.  Also, his employer primarily does large projects which require a team of plumbers and not a single plumber working alone.   He continues to work alongside other licenced plumbers on all job sites, just as he did when he held the Provisional licence. However, even when he was being ‘supervised’ he was undertaking the tasks of the occupation of plumber, and not the tasks of an apprentice or lesser skilled tradesperson such as a plumbing labourer.  The Tribunal accepts this oral evidence.

16. The Tribunal is satisfied that the applicant, as the holder of a provisional licence, was licensed to undertake the tasks of his nominated occupation.  The Tribunal accepts that as a holder of one of the six types of licences issued by the Western Australian Plumbing Licensing Board, the applicant was ‘authorised to undertake plumbing work’ (as per the extract from the Department of Commerce website, reproduced above).   

17. When considering the scope and purpose of the licences granted by the Plumbing Licensing Board, the Tribunal is satisfied the applicant was licenced to work as a plumber, undertaking the duties of the occupation.  The purpose of the extra training and one year of supervision is obviously a safety measure to ensure overseas trained plumbers are trained to Australian standards.   It is mandatory for overseas trained plumbers to hold the Provisional licence before being granted a Tradesperson’s licence, and the licence is only granted when the person demonstrates their proficiency through the Offshore Technical Skills Record. When a migrant plumbers is granted a Provisional licence for one year it is a recognition that their overseas qualifications and experience have been assessed as meeting the technical requirements for the duties of a licenced plumber.

18. The Tribunal finds the applicant was eligible at time of application to hold a Provisional tradesperson’s licence to undertake work as a plumber in Western Australia. The Tribunal is satisfied this licence is sufficient to meet the requirement that he hold a mandatory licence to perform tasks of the kind to be performed in the occupation to which the position relates. 

19. Therefore, cl.186.211 is met.

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

    DECISION

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

    ·cl.186.211 of Schedule 2 to the Regulations.

    Carolyn Wilson

    
    

    Member