Hughes (Migration)

[2019] AATA 1502

Hughes (Migration) [2019] AATA 1502 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ian William Hughes

CASE NUMBER:  1725560

HOME AFFAIRS REFERENCE(S):           BCC2016/3134402

MEMBER:Alison Mercer

DATE:9 January 2019

PLACE OF DECISION:  Melbourne

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 January 2019 at 3:56pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Drainer – evidence of registration or licensing – relevant regulatory framework – opinion of Building Services Consultants – licensing issue did not arise during earlier subclass 457 visa – work under the supervision of a licence holder – decision under review remitted      

LEGISLATION

Home Building Act 1989 (NSW), s 12
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 186.211
Plumbing and Drainage Act (NSW) (2011), s 4-6

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 and Border Protection on 28 September 2017 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 for the visa on 21 September 2016. 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 Labour 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 Drainer.

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

6. The delegate had regard to the duties and the responsibilities of the nominated position and found that, at the time that the visa application was made, no evidence was provided to show that the applicant held a licence of a particular kind to perform tasks of the kind to be performed in the occupation as a Drainer (ANZSCO 334113) in New South Wales (NSW).  The delegate noted that on 13 March 2017, the Department requested that the applicant provide evidence of registration/licensing, ‘as a licence was required before any plumbing, draining or gas fitting (including LP gas fitting) work can be undertaken in NSW, regardless of the costs of the work and regardless of whether the work is residential, commercial or industrial.’

7. On 28 March 2017, the applicant’s agent responded by providing an opinion from Abel & Brown Specialist Building Services Consultants who stated that the relevant regulatory framework did not require a person carrying out the scope of works within the Job Description to hold a current plumbing licence or drainer’s licence. On 26 April 2017, the Department sent an inquiry to the NSW Fair Trading regarding draining work to clarify if a licence was required. The response from NSW Fair Trading on 2 November 2017 was that, for licensing purposes, draining was the work of sanitary drainage being the construction, alteration, extension, disconnection, removal, maintenance, repair, renewal, ventilation, flushing or cleansing of any sanitary drain connecting, or intended to connect, directly or indirectly with a sewer (including work on a house connected to an onsite wastewater management system). They stated that, to be eligible for a tradesperson certificate, applicants had to possess one of the following 3 qualifications: Certificate III in Plumbing (including the draining stream); Certificate II in Draining; or completion of an apprenticeship in Plumbing, which includes a Certificate III in Plumbing (including the draining stream).

8. On 6 May 2017, the Department sent another inquiry to NSW Fair Trading about licensing for Drainers. The NSW Fair Trading responded on 7 June 2017 advising that a licence was required before any plumbing, draining or gas fitting (including LP gas fitting) work could be undertaken in NSW, regardless of the costs of the work and regardless of whether the work was residential, commercial or industrial. On 25 May 2017, the delegate requested that the applicant provide evidence of holding a trade certificate. On 31 May 2017, the applicant’s agent submitted that as the applicant had been working as a Drainer while holding a subclass 457 visa, the issue of skill level did not arise and the delegate’s request that the applicant provide a trade certificate was irrelevant to the requirement for licensing. The agent further submitted that the fact that the licence was not mandatory did not warrant a request to provide an alternative irrelevant document in its place. The agent reiterated that the expert evidence provided to the Department already indicated that licensing was not mandatory for the applicant’s position, and that the applicant therefore met all the requirements in the Regulations and his visa should be granted.

9. The delegate stated that he had considered the information provided but placed greater weight on the evidence provided by NSW Fair Trading, and therefore the applicant had to provide evidence of being licensed by the relevant state authority in order to meet cl.186.211. As this had not been provided, the delegate found the applicant did not meet cl.186.211(a), (b) or (c). The delegate further found that the applicant did not meet the criteria under the Direct Entry stream as he had not been nominated under the relevant nomination provisions.

10. The Tribunal received a review application from the applicant on 19 October 2017. It was accompanied by a copy of the delegate’s decision, an authority by which the applicant appointed a registered migration agent, Ms Maggie Taaffe, as his representative and authorised recipient for correspondence, and a submission from the agent. In summary, the applicant’s agent made the following submissions:

    ·prior to making his subclass 186 visa application, the applicant had held a subclass 457 visa for over 2 years after being successfully nominated by his employer as a Drainer;

    ·the delegate refused the subclass 186 visa because he considered that licensing for Drainers was mandatory in NSW, and the applicant did not hold such a licence and therefore did not meet cl.186.211;

    ·this decision was plainly incorrect and unlawful, as it was not mandatory under the Plumbing and Drainage Act (NSW) (2011) that all Drainers performing drainage work as defined by the Act required a licence, as they could perform such work under the supervision of a licence holder if they do not themselves a licence;

    ·Shelley Thompson, Manager, Permanent Employer Sponsored Entry, agreed to review the delegate’s decision following several emails of complaint about the decision, and a letter to her on 9 October 2017, a copy of which was provided with the submission;

    ·Ms Thompson would not, however, guarantee that the decision would be reversed by the time it became necessary to lodge an application for review with the Tribunal, and she then advised that internal review would not proceed once the Tribunal review application had been lodged;

    ·as the delegate’s decision contained a clear legal error, the decision should be overturned ‘on the papers’ and remitted to the Department with a direction that the applicant met cl.186.211;

    ·Departmental policy provided that ‘… Registration, licensing or professional membership… 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;’

    ·in NSW, drainage work could be performed by an unlicensed Drainer under supervision of a licensed contractor/employer, even where it constitutes ‘drainage work’ as defined under the Plumbing and Drainage Act (NSW, 2011). Section 6(b) of that Act confirms that a person who performs work in NSW which accords with the legal definition of Plumbing or Drainage work, does not require a licence if he/she was supervised by a person who holds a contractor or supervisor licence, or was an employee of such a contractor;

    ·accordingly, pursuant to the Plumbing and Drainage Act alone therefore, licensing for Drainers was therefore not mandatory in NSW as per s.6(b);

    ·therefore, the applicant met the requirements of cl.186.211 as it was not mandatory for him to hold a licence in NSW, as not every person working in the occupation of Drainer was required to have some form of licensing, even when performing legislatively defined ‘drainage work;’ and

    ·the Tribunal was therefore required to remit the matter back to the Department with a direction that the applicant meets cl.186.211, without the need for a hearing.

11. On 27 June 2018, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 18 July 2018.  On the same date, the applicant’s agent wrote to the Tribunal to request an adjournment of the hearing as she was unavailable on the hearing date. On 11 July 2018, the Tribunal agreed to do so and advised it would advise in due course of a new hearing date.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Licensing, registration and membership requirements

13. 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.

14. The current Departmental policy on this requirement is set out in its Procedures Advice Manual (PAM3, as at 1 January 2019) and provides as follows:

    11.1  Mandatory registrations, licensing or similar

    Clause 186.211 refers:

    If, in order for a person to work in an occupation where registration, licensing or professional membership is mandatory in the State/Territory in which the position is located, the applicant must hold, or be eligible to hold, the relevant registration, licence or membership, at the time of application.

    Registration and licensing requirements are generally specified in Commonwealth or State/Territory legislation that would apply to a specific occupation or trade and would be administered by a specific authority specified in the legislation.

    Visa applicants must provide evidence of registration, licensing or professional membership or eligibility for registration, licensing or professional membership at the time of application. Evidence that predates the date of application but submitted after the application is made may be accepted if submitted before a decision is made on the application. Evidence dated/obtained after the visa application is made does not meet 186.211 requirements.

    11.2  Registration/licensing cannot be waived

    If it applies, the mandatory registration, licensing or membership criterion cannot be waived under any circumstances.

    11.3  Definition of ‘mandatory’

    Registration, licensing or professional membership:

    ·             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

    ·             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.

    If, for visa purposes, registration, licensing or professional membership is mandatory (as described above), 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.

    Example: The occupation of architect helps explain the above principles.

    Registration in the occupation of architect is not considered mandatory (for visa purposes) because a person can work without registration, provided they work under the supervision of a registered architect. The important point of difference between this occupation and that of the medical practitioner in the context of 186.211 is that the fact that the person works under supervision is irrelevant, because registration is not mandatory in that occupation. This means that an architect who works under supervision can satisfy 186.211.

    11.4  Ascertaining whether registration/licensing is required

    There is no single definitive source that covers registration, licensing or membership requirements across occupations identified within the ANZSCO framework. This is partly because registration and licensing requirements are generally managed at State/Territory level through industry or occupation specific legislation.

    The starting point in assessing whether a particular occupation requires licensing, registration or specific membership is the ANZSCO dictionary. The dictionary refers to registration, licensing and professional membership requirements at the Unit Group level for each group of occupations. Information in the dictionary:

    ·             indicates that registration, licensing or professional membership ‘is’ required, if this is mandatory or

    ·             where requirements vary across States/Territories, indicates that registration, licensing or professional membership ‘may’ be required or

    ·             “is silent” if registration, licensing or professional membership is not required at all.

    If necessary, officers can obtain detailed information about registration, licensing or professional membership through the visa applicant or nominator or directly from the registering authority, keeping in mind that requirements may vary across States/Territories. If uncertain as to the registration or licensing requirements that may apply to a particular occupation or whether such registration or licensing would be considered mandatory, officers are to refer to this instruction’s owner for advice.

    11.5  Eligibility to be registered, licensed or hold professional membership

    An applicant is ‘eligible for registration, licensing or membership’ when they have been fully assessed and their eligibility to hold the registration, licence or professional membership has been confirmed by the relevant body.

    There are two elements to the above and their distinction is important for those who hold ‘Provisional Registration’ but require ‘General Registration’ in order to be fully registered, licensed, or hold professional membership:

    ·             ‘Fully assessed’ requires that all the requisite assessment items as set by the relevant body have been satisfactorily completed.

    ·             The second element requires that, on the basis of the above assessment items, ‘the relevant body has confirmed their eligibility to hold the registration, licence or professional membership’. That is, the application for registration, supported by the relevant assessment items, must have been successful and the relevant industry body must have actually upgraded the applicant’s provisional registration to full or general registration/license/membership.

    …

15. The Tribunal is mindful that Departmental policy is not binding, but also recognises that, where not inconsistent with the underlying legislation itself, it should be followed where relevant to ensure consistency in decision-making.

16. The Tribunal is satisfied from its review of the Department’s file that the applicant nominated the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupation of Drainer (ANZSCO code 334113) in his subclass 186 visa application. It is further satisfied that the relevant location in which the applicant is, and will be, practising the nominated occupation is NSW.

17. The Tribunal has had regard to the ANZSCO occupational description for a Drainer, which falls within the Unit Group for Plumbers (Tribunal’s emphasis in italics):

    UNIT GROUP 3341 PLUMBERS

    PLUMBERS install, maintain and repair pipes, drains, guttering and metal roofing, mechanical services and related equipment for water supply, gas, drainage, sewerage, heating, cooling and ventilation systems.

    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:

    ·studying blueprints, drawings and specifications to determine the layout of plumbing systems and materials required

    ·setting out and installing hot and cold water systems and associated equipment

    ·installing water-based fire protections systems, including fire hydrants, hose reels and sprinkler systems

    ·designing and installing sanitary plumbing and water supply systems, discharge pipes and sanitary fixtures

    ·fabricating and installing soil and waste stacks

    ·assembling and installing mechanical services plant, air handling and conditioning equipment and small bore heating systems

    ·installing sewerage and effluent pumping equipment and disposal systems

    ·installing below-ground drainage systems and associated ground support systems

    ·installing gas appliances, flues and pressure regulating devices

    ·fabricating and installing metal roofing, rainwater goods and flashings

    Occupations:

    334111 Plumber (General)
    334112 Airconditioning and Mechanical Services Plumber
    334113 Drainer (Aus) / Drainlayer (NZ)
    334114 Gasfitter
    334115 Roof Plumber

    …

    334113 DRAINER (AUS) / DRAINLAYER (NZ)

    Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems. Registration or licensing is required.

    Skill Level: 3

    Specialisation:

    Septic Tank Installer

    …

1. As indicated above, the ANZSCO dictionary Unit Group description for Plumbers, and the specific occupational description for Drainers within it, both state that registration or licensing is required (though they do not specify in which States or Territories of Australia; presumably, the ANZSCO dictionary view is that it is required throughout Australia for Drainers). Moreover, the advice received from the NSW Fair Trading office by the delegate suggests that for draining work, a tradesperson had to possess one of the following 3 qualifications: Certificate III in Plumbing (including the draining stream); Certificate II in Draining; or completion of an apprenticeship in Plumbing, which includes a Certificate III in Plumbing (including the draining stream), and that a a licence was required before any plumbing, draining or gas fitting (including LP gas fitting) work could be undertaken in NSW, regardless of the costs of the work and regardless of whether the work was residential, commercial or industrial.

2. In contrast, the applicant’s agent has argued that in this case, registration or licensing is not mandatory because (as per the PAM3 extract above), a person can perform work in the occupation without registration or similar, although the work has to be performed under supervision. In support of this contention, she cited the NSW Plumbing and Drainage Act 2011; in particular, s.6(b) of that Act which indicates that a person who performs work in NSW which accords with the legal definition of Plumbing or Drainage work, does not require a licence if he/she is supervised by a person who holds a contractor or supervisor licence, or is an employee of such a contractor.

3. The Tribunal has reviewed the NSW Plumbing and Drainage Act 2011. ‘Plumbing and drainage work’ is defined in s.4 and includes:

   (a)the construction of, or work on, a plumbing installation that connects, directly or indirectly, with a network utility operator’s water supply system, downstream from the point of connection to a network utility operator’s water supply system, or

   (b)the construction of, or work on, a plumbing installation that connects, directly or indirectly, with any other water supply system, if the construction or work is residential building work within the meaning of the Home Building Act 1989; or

   (c)the construction of, or work on, a sanitary plumbing system, or

   (d)the construction of, or work on, a sanitary drainage system upstream from its point of connection to:

   (i)a system for the disposal of sewerage; or

   (ii)a system for the re-use of sewerage or other wastewater; or

   (iii)an onsite wastewater management or treatment system; or

   (iv)a network utility operator’s sewerage system; or

   (e)any other type of construction or work declared by the regulations to be plumbing or drainage work.

4. Who is a ‘responsible person’ for plumbing and drainage work is set out in s.5, which provides that:

   (a) in the case of work carried out or proposed to be carried out by the holder of an endorsed contractor licence or a supervisor certificate under the Home Building Act 1989 authorising the holder to do the work, the holder of that licence or certificate, or

   (b) in the case of work carried out or proposed to be carried out under the immediate or general supervision of the holder of an endorsed contractor licence or a supervisor certificate under the Home Building Act 1989 authorising the holder to supervise the work, the holder of the endorsed contractor licence or supervisor certificate

5. Section 6 of the Act is headed ‘Plumbing and drainage work to be carried out only by authorised persons’ and provides as follows:

   (1) A person must not do any kind of plumbing and drainage work unless the person:

   (a) holds an endorsed contractor licence or supervisor certificate in force under the Home Building Act 1989 authorising the holder to do that kind of work, or

   (b) does the work under the immediate supervision of the holder of such a licence or certificate, or

   (c) holds a tradesperson certificate in force under the Home Building Act1989 authorising the holder to do that work under supervision and does that work under supervision and does that work under the general supervision of the holder of a licence or certificate referred to in paragraph (a).

   Maximum penalty: 100 penalty units

6. The Tribunal notes that subsections (2) and (3) provide that a person cannot be found guilty of both an offence under this section and a similar offence under another Act in respect of the same work done on the same occasion.

7. The Tribunal has also had regard to the information provided by the applicant and his agent to the Department, and is satisfied from the material on the Department’s file and its own review of the relevant legislation that:

   ·the applicant’s nominating employer does not perform work under the NSW Home Building Act 1989, as it does not undertake residential building work but rather, civil works, to which the NSW Plumbing and Drainage Act 2011 applies;

   ·accordingly, the applicant does not does not perform work under the NSW Home Building Act 1989, as he does not undertake residential building work but rather, he undertakes civil works, to which the NSW Plumbing and Drainage Act 2011 applies;

   ·the applicant’s position description states that he follows ‘instructions and directions issued by the Project Supervisor or Leading Hand;’

   ·for defined work under the NSW Plumbing and Drainage Act 2011, a person must hold an endorsed licence or supervisor certificate, or do the work under the immediate supervision of the holder of such a licence or certificate, or must hold a tradesperson certificate in force under the Home Building Act 1989 authorising the holder to do that work under supervision and do that work under the general supervision of the holder of a licence or certificate referred to in paragraph (a) (s.6(1)(a) to (c)); and

   ·s.4(5) of the NSW Plumbing and Drainage Act 2011 excluded some work from the definition of plumbing and drainage work, including the construction of, or work on, stormwater pipes, the construction of, or work on, fire suppression systems, and the construction of, or work on, network utility operator, local council or county council water or stormwater mains, sewers or sewerage systems (though this still had to be done in accordance with any other relevant legislation, such as the Home Building Act 1989. However, s.12(c) of that Act permits an individual to do residential building work or specialist work as an employee of the holder of an appropriate contractor licence or permit).

8. From the above, the Tribunal is satisfied that not all Drainers in NSW are required to be licensed or registered, and thus licensing or registration is not mandatory. It further accepts that this is the case in relation to the applicant, given the nature of his employer’s business and his role within it. Given these specific findings, the Tribunal does not accept that the ANZSCO Unit Group or specific occupational description suggesting that registration or licensing is required is accurate, and it gives greater weight to the relevant NSW legislation as set out above, which clearly indicates that whether licensing or registration is required to work as a Drainer depends on the nature of the particular work and the employment circumstances of the Drainer in question.

9. Accordingly, the Tribunal is satisfied that the applicant satisfies cl.186.211 as it is not mandatory in NSW for the position to which his application relates to hold a licence or registration of a particular kind, or to be a member of a particular kind of a particular professional body.

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

    DECISION

11. 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.

    Alison Mercer
    Member