Danieli (Migration)

[2017] AATA 2334

Danieli (Migration) [2017] AATA 2334 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francesco Danieli

CASE NUMBER:  1517630

DIBP REFERENCE(S):  BCC2015/1380919

MEMBER:R. Skaros

DATE:9 November 2017

PLACE OF DECISION:  Sydney

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 09 November 2017 at 8:04am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) visa – Temporary Residence Transition stream – Electrician – Licencing requirements not standardised – Tasks of occupation – No electrical wiring work – Electrical licence not required in NSW

LEGISLATION

Electrical (Consumer Safety) Act 2004 (NSW)).
Gas and Electricity (Consumer Safety) Act 2017 (NSW), s 4
Home Building Act 1989 (NSW), s 14
Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2 cl 186.211

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 1 December 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 13 May 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 Temporary Residence Transition stream, to work in the nominated position of Electrician (General) 341111. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.211 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 10 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the director of the nominating entity, Mr Mario Soligo.

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. 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.

10. The applicant applied for the visa on the basis of a nomination in the position of Electrician (General) 341111. The ANZSCO provides the following description for the occupation:

    UNIT GROUP 3411 ELECTRICIANS

    ELECTRICIANS design, assemble, install, test, commission, diagnose, maintain and repair electrical networks, systems, circuits, equipment, components, appliances and facilities for industrial, commercial and domestic purposes, and service and repair lifts, escalators and related equipment.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Registration or licensing is required.

    Tasks Include:

    oexamining blueprints, wiring diagrams and specifications to determine sequences and methods of operation

    omeasuring and laying out installation reference points

    oselecting, cutting and connecting wire and cable to terminals and connectors

    ousing electrical and electronic test instruments to trace and diagnose faults

    orepairing and replacing faulty wiring and defective parts

    opositioning and installing electrical switchboards

    oconnecting electrical systems to power supply

    otesting continuity of circuit

    oinstalling, testing and adjusting electric and mechanical parts of lifts

11. In relying on the information in ANZSCO, the delegate requested the applicant to provide evidence of his licence as an electrician. The applicant’s representative submitted to the Department that licensing in NSW was only mandatory to perform electrical wiring work which is defined as the actual physical work of installing, altering, removing or adding to an electrical installation or the supervising of that work. It was submitted that licensing is not mandatory to perform other kinds of electrical work including that which is performed by the applicant, which does not involve work on an electrical installation. The delegate requested the applicant provide evidence that licensing is not mandatory. The representative responded to the Department advising that she had contacted the NSW Office of Fair Trading and had received conflicting information. It was submitted that the NSW Office of Fair Trading had indicated that they do not provide written confirmation as to whether a licence is required and that interested parties should refer to their website for details.

12. The delegate, in refusing to grant the visa stated that it was not unreasonable for the applicant to provide evidence to support their claim that licensing is not required. The delegate placed weight on the information in ANZSCO that licensing is required and refused to grant the visa on the basis that the applicant did not provide evidence that he holds the required licence.

13. On review, the Tribunal received detailed written submissions and supporting documents, to which it has had regard.

14. The representative submitted that although policy provides that the starting point in assessing whether a particular occupation requires licensing, registration or specific membership is the ANZSCO, it also states licensing is considered mandatory for visa purposes only if every person working in that occupation is required to have some form of licensing and is not considered mandatory if a person can perform work in that occupation without registration or similar, even if the work has to be performed under supervision.

15. The Tribunal notes that it is not bound by policy however it does accept the representative’s submission that the ANZSCO is not the law and that to determine whether licensing is mandatory regard must be had to the relevant law in the state or territory in which the applicant will carry out the tasks of the nominated position.

16. In this case, the nominated position will be carried out in NSW. The representative helpfully provided extracts of the relevant legislation from the website of the Office of Fair Trading: the body responsible for issuing of licences to electricians in NSW. The relevant legislation includes, the Home Building Act 1989 (NSW) and the Gas and Electricity (Consumer Safety) Act 2017 (NSW) which recently replaced the Electrical (Consumer Safety)Act 2004 (NSW)).

17. According to the website of the Office of Fair Trading:

    'An electrical licence is required before any electrical wiring work can be undertaken in NSW, regardless of the cost of the work and regardless of whether the work is residential, commercial or industrial.'

    Section 14 of the Home Building Act provides —

    (1)An individual must not do any electrical wiring work (whether or not it is also residential building work), except

    (a)  as qualified supervisor in respect of that work, or

    (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of such a qualified supervisor.

    (2)Despite subsection (1), an individual may do electrical wiring work even though the individual is not such a qualified supervisor or holder, but only if such a qualified supervisor;

    (a)  is present at all times where the work is being done by the individual, and

    (b) is available to be consulted by, and to give directions relating to how the work is to be done to, the individual.'

18. It was noted that according to ss.14(2) it is possible for a person to work as an electrician in NSW without licensing, and on that basis it was submitted that cl.186.211 is satisfied as it is not mandatory for electricians in NSW to be licensed. The Tribunal accepts on the basis of the above that in NSW a person working under the supervision of a qualified electrician is able to undertake the full range of tasks of an electrician (including electrical wiring work) without holding an electrical licence. The Tribunal notes however that no claims have been made to suggest the applicant will be working under the supervision of a qualified supervisor. And the Tribunal does not accept that the submission that because in some circumstances licensing is not required to work as an electrician in NSW, that the requirement in cl.186.211 could be considered met on the basis that it is not a mandatory for all electricians in NSW to hold a licence.

19. The Tribunal considers that cl.186.211 requires an assessment of the types of tasks to be performed in the occupation to which the position relates and to determine whether the performance of these tasks by the applicant requires him to hold a licence.

20. The Tribunal has also had regard to the representative’s alternative submissions on the issue of licensing, which it considers to be more relevant to the applicant in this case.  

21. It was submitted that s. 14 of the Home Building Act states that a person must not do any 'electrical wiring work' unless certain requirements are met. Schedule 1 of the Home Building Act provides that 'electrical wiring work' has the same meaning as it has in the Electrical (Consumer Safety) Act (which has recently been repealed and replaced by the Gas and Electrical (Consumer Safety) Act). Section 4 of the Gas and Electrical (Consumer Safety)Act defines 'electrical wiring work'  as:

    'the physical work of installing, repairing, altering, removing or adding to an electrical installation or the supervising of that work.'

    'electrical installation' is defined as follows:

    'any fixed appliances, wires, fittings, meters, apparatus or other electrical equipment used for (or for purposes incidental to) the conveyance, measuring, control and use of electricity in a particular place but does not include any of the following:

    (a) ... any electrical equipment (other than a meter) used, or intended for use, in the generation, transmission or distribution of electricity that is:

    owned or used by an electricity supply authority...'

22. It was submitted that the applicant's duties as an electrician with his nominating employer essentially involves two separate roles. First, to ensure that the electrical and electronic components of the company’s plant, machinery, vehicles and equipment are operating properly. It was noted that the employer, who operates a construction business, owns vehicles, industry specific equipment and machinery that requires constant maintenance and repairs. It was submitted that this type of work does not require the applicant to hold a licence as it does not involve works on an 'electrical installation' as the plant and equipment is not connected to the power grid and does not utilise 'electricity'.

23. It was further submitted that the role filled by the applicant in the position also involves the installation of conduit and electrical wiring, and assisting with electrical layouts and site preparation works related to company’s construction projects. This work is specifically excluded from the definition of 'electrical installation' as set out in paragraph (a) of the definition as the equipment installed is ultimately used for the transmission of electricity owned by the relevant electricity supply authority. Further, the applicant does not perform any work on 'live' installations and does not connect to the power grid. This work is done at a later date by other subcontractors. It was submitted that work undertaken by the applicant is specialised and highly skilled, constituting electrical works on a large scale. It was submitted that the work is subject to extensive scrutiny and supervision, and performed strictly in accordance with project specifications and designs.

24. It was noted that the employer is an established company specialising in civil construction projects, including works on car parks, large concrete structures, subdivisions and site preparation among other things. It has a longstanding relationship with another, associated company, DEM Holdings (NSW) Pty Ltd which manages a portfolio of commercial and industrial properties. It was submitted that the employer is not operating in the electrical services industry, and that the applicant does not provide electrical services to members of the public, and that the work he undertakes can only be done by a suitably experienced and skilled tradesman with the full range of electrical skills but it is not 'electrical wiring work' as defined by the licensing regime, and he is therefore not required to be licensed to perform this work.

25. In support of the submissions the representative provided the relevant extracts from the NSW Office of Fair Trading website, extracts of the relevant provisions, parts of which are set out above, a list of the employer’s plant, equipment and machinery and contracts for projects to be completed by the employer, detailing the scope of work which in part includes electrical services.

26. At the hearing the Tribunal took evidence from the applicant about his skills, background, experience and the tasks he performs in the position. It also had the opportunity to take evidence from the employer. The applicant completed a diploma in industrial electronics and telecommunications in Italy. He gave evidence that he travelled to Australia in 2011 as the holder of a working holiday visa. He was granted his first Subclass 457 visa in July 2012 on the basis of an approved nomination by his nominating employer. The occupation in which he was nominated was Electrician (General). He applied for a further Subclass 457, also on the basis of a nomination in the occupation of Electrician (General), which was granted in August 2016. He stated that he has been working for the nominating employer as an electrician since 2012. In describing the tasks he performed on a day to day basis in the position, the applicant explained that while it sometimes depends on type of project being undertaken, he is responsible for completing all of the preliminary electrical work before construction commences. He reads and interprets the wiring diagrams for each site and carries out the work as specified, including trenching, cabling and conduits installation. The applicant referred to the Tribunal to supporting documents provided, including electrical diagrams and scope of work descriptions, regarding some of the electrical work undertaken for projects for which he was responsible.

27. The applicant submitted that he undertakes almost all of the duties undertaken by a qualified electrician other than connect to the grid. He explained that once all the electrical work is done, the employer contracts a licensed electrician to connect to the grid and complete the necessary paperwork. He provided details of a current project which involved the installation of an industrial printing machine for which he was required to install cabling, and diagnose and rectify electrical issues. The applicant stated that he is also responsible for repairing and maintaining the electrical and electronic components of the business’ plant, machinery and equipment. This involves diagnosing faults and rectifying them, inspecting the electrical systems to identified any hazards or faults, connecting power cables and testing systems.

28. Mr Seligio’s evidence regarding the applicant’s day to day duties was consistent with the applicant’s evidence and the supporting documentation. Mr Seligio explained that even though the applicant is not licensed he nevertheless performs all the tasks of an electrician and that they only require a licensed electrician, which they contract on a needs basis, when they are ready to connect to the grid.

29. After the hearing, the Tribunal received submissions from the representative in response to the Tribunal’s queries at the hearing about whether the position is in the occupation of Electrician (General) if the applicant was not performing the full range of tasks described in the ANZSCO, and particularly the task relating to connecting electrical systems to a power supply. It was submitted that while some of the tasks performed by the applicant may fall within the tasks of other occupations, the occupation of electrician was the most appropriate as the tasks performed by the applicant substantially align with the tasks as described in the ANZSCO. It was submitted that it was not necessary for there to be an exact match between the duties described in ANZSCO and that it was sufficient for the position to include a significant majority of the tasks of the nominated occupation as found in ANZSCO.

30. The Tribunal accepts the representative submission that ANZSCO is a guide and that it is not necessary for the applicant to perform every task stated in the ANZSCO. In considering the evidence overall, the Tribunal is satisfied that the tasks performed by the applicant are of the kind to be performed in the occupation of Electrician (General).

31. Returning to the issue in cl.186.211 and whether it is mandatory for the applicant to be licensed in NSW, the Tribunal is satisfied on the evidence before it that it is not mandatory for the applicant to hold an electrical license to perform the tasks of the occupation to which the position relates. The Tribunal accepts that the tasks to be performed by the applicant do not involve 'electrical wiring work' as defined in the relevant NSW legislation and accordingly accepts that the applicant, in this case, is not required to hold an electrical licence in NSW.

32. Given the above, the Tribunal finds that cl.186.211 is satisfied.

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

    DECISION

34. 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; and

    R. Skaros
    Member