Mubashar and Victorian Building Authority - [2025] ARTA 581

Mubashar and Victorian Building Authority [2025] ARTA 581 (19 May 2025)
Applicant/s:  Muhammad Mubashar
Respondent:  Victorian Building Authority
Tribunal Number:                2023/5553

Tribunal:Senior Member M. Harrowell
Place:Melbourne
Date:19 May 2025

Decision:The Tribunal affirms the decision under review.

..................[SGD]......................................................
Senior Member M. Harrowell
Catchwords
ADMINISTRATIVE LAW – Employment and workplace relations – mutual recognition of occupations – whether registration sought by the applicant in Victoria as a commercial builder is an equivalent occupation to that which the applicant was registered in New South Wales – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)
Administrative Review Tribunal Act 2024 (Cth)
Building Act 1993 (Vic)
Home Building Act 1989 (NSW)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009
Cases
Board of Professional Engineers of Queensland v Gardner [2021] FCA 564
Cau v Victorian Building Authority [2022] FCA 45
Medical Board of Queensland v Renton [2006] FCA 947; (2006) 152 FCR 566
Victorian Building Authority v Cau [2023] FCAFC 120
Statement of Reasons
INTRODUCTION

These reasons relate to an application for review of a decision of the Victorian Building Authority (respondent) refusing an application by Mr Mubashar (applicant) for registration as a commercial builder in Victoria under the Mutual Recognition Act 1992 (Cth) (MRA).
In general terms, the MRA permits a person registered to carry out an occupation in one State to have that registration recognised in another State where the circumstances prescribed in the MRA are met.
The respondent is the licensing authority under the Building Act 1993 (Vic) (Victorian Building Act). The Victorian Building Act requires a builder who carries out commercial and domestic building work to hold a licence.
The application for mutual recognition was lodged by the applicant with the respondent on about 2 June 2023 (recognition application). In the recognition application, the applicant sought registration to do commercial building work. He described his occupation as a carpenter.
At the time the recognition application was lodged, the applicant held a licence in New South Wales (NSW licence) issued under the Home Building Act 1989 (NSW) (NSW HB Act). The NSW HB Act provides for the licensing of builders to carry out residential building work in New South Wales. The NSW licence permitted the applicant to carry out work as a carpenter, kitchen and bathroom renovations, painting and decorating and waterproofing.
The NSW licence only applies to residential building work, essentially the same as domestic building work under the Victorian Building Act. There is otherwise no requirement in New South Wales to hold a licence to undertake commercial building work in that State.
By letter dated 29 June 2023 (Decision), the respondent notified the applicant of its decision to refuse the recognition application. Inter alia, that letter said:
On 29 June 2023 the Victorian Building Authority (VBA) refused your application for registration under the Mutual Recognition Act 1992 in the category of Builder, class of Commercial Builder (Limited).
The VBA refused to grant registration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 581
Decision Date: 19 May 2025

CaseChat Overview and Summary

The case of Mubashar and Victorian Building Authority was heard by the court and concerns the applicant's attempt to have their New South Wales registration as a commercial builder recognised in Victoria. The applicant applied to be registered as a commercial builder under the Victorian Building Act, but the respondent, the Victorian Building Authority, refused the application on the grounds that the occupation was not considered equivalent to that registered in New South Wales. The applicant appealed this decision, seeking a review of the respondent's decision. The court was tasked with determining whether the respondent's decision to refuse registration was lawful and whether the occupation sought to be registered in Victoria was equivalent to that registered in New South Wales.

The court considered whether the respondent's refusal to register the applicant as a commercial builder was justified under the relevant provisions of the Mutual Recognition Act 1992 (Cth) and the Victorian Building Act. The court noted that the applicant had not applied for registration as a domestic builder in Victoria, which could potentially have led to a different outcome under the legislation. The court also examined the definitions of "activity" and "occupation" and the provisions regarding equivalent occupations under the Mutual Recognition Act. The court held that the respondent's decision was lawful as the occupation sought to be registered in Victoria was not considered equivalent to that registered in New South Wales, and equivalence could not be achieved by imposing conditions.

The court affirmed the respondent's decision, finding that the local registration authority was entitled to refuse the registration under the relevant provisions of the legislation. The court emphasised that the Mutual Recognition Act is concerned with occupations that require registration and that the determination of equivalent occupations is subject to declarations made under the Act. The court held that the respondent was not required to recognise the applicant's New South Wales registration as a commercial builder in Victoria as the occupations were not equivalent. The court's decision was based on the statutory framework and the specific circumstances of the case.

The final orders of the court were that the decision of the respondent is affirmed, and the applicant's application for review is dismissed. The court did not grant the relief sought by the applicant and upheld the respondent's decision to refuse registration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In reaching this conclusion, I should note that the application to be registered as a commercial builder was not combined with an application to be registered as a domestic builder. Prima facie, if that had been the form of the application, s 29(2) may have permitted registration under the Victorian Building Act, on conditions limiting the registration to domestic building work only.DECISION The decision of the respondent is affirmed.

Ratio Decidendi

Legal Principle Established

The local registration authority may refuse the application circumstances prescribed by s 23(1). This section relevantly provides:23 Refusal of registration (1) A local registration authority may refuse the grant of registration mentioned in subsection 20(1) if: …(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions. Section 4(1) of the MRA provides the following definitions:activity means an activity authorised to be carried on under an occupation that requires registrationequivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be grantedregistration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation. As is apparent from the definitions of both “activity” and “occupation”, the MRA is concerned with an occupation that requires registration. In relation to “equivalent occupations” Division 4 of Part 3 of the MRA provides:Division 4—Equivalent occupations 28 Equivalent occupations The equivalence of occupations carried on in different States is to be determined in accordance with this Part. 29 General principles (1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions). (2) Conditions may be imposed on registration in accordance with this Part so as to achieve equivalence between occupations in different States.(3) This section has effect subject to any relevant declarations in force under this Division. 30 Declarations as to equivalent occupations (1) This Part is to be given effect in accordance with relevant declarations (if any) made under this Division regarding equivalent occupations. (2) If a declaration made by the Tribunal and a declaration made by Ministers are inconsistent, the ministerial declaration prevails. (3) A declaration under this Part does not affect the registration of any person already registered (except in the case of a declaration made by the Tribunal in relation to that person specifically.…32 Declarations by Ministers (1) A Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify or describe conditions that will achieve equivalence. (2) The declaration may be amended or rescinded in the same way. (3) The declaration has effect only in relation to the States concerned. (4) The appropriate local registration authority is to give effect to the declaration.