Hughes (Migration)

The Administrative Appeals Tribunal considered an application by Hughes (Migration) for an Employer Nomination (Permanent) (Class EN) visa, specifically the subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The dispute centred on whether the applicant, nominated for the position of Drainer, met the mandatory licensing or registration requirements stipulated by clause 186.211 of Schedule 2 to the Migration Regulations. The Tribunal found that the applicant's previous visa, a subclass 457, had been granted without the licensing issue arising, and the applicant had worked under the supervision of a licence holder.

The primary legal issue before the Tribunal was to determine whether the occupation of Drainer, in the relevant State or Territory, mandated a licence, registration, or professional membership for its practice, and if so, whether the applicant held or was eligible to hold such a qualification at the time of their visa application. The Tribunal was required to interpret the meaning of "mandatory" in this context, particularly in light of departmental policy which distinguishes between occupations where registration is universally required and those where work can be performed under supervision without it.

The Tribunal reasoned that clause 186.211 requires an applicant to hold, or be eligible to hold, a mandatory licence or registration at the time of application. It referred to departmental policy which clarifies that an occupation is not considered mandatory for visa purposes if a person can perform the work without registration, even if under supervision. The Tribunal noted that the ANZSCO dictionary is a starting point for ascertaining such requirements, but detailed information often resides in State or Territory legislation. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, finding that the applicant met the criteria under clause 186.211.