Employers sponsoring workers under the Subclass 186 Employer Nomination Scheme visa often focus on skills, experience and English requirements. However, for some occupations, a separate and critical issue must be addressed at the outset: whether the visa applicant must hold mandatory licensing, registration or professional membership to lawfully perform the nominated role in Australia.
Legislative Framework
Under clause 186.211, if licensing, registration, or professional membership is mandatory for the nominated occupation in the relevant State or Territory, the primary applicant must satisfy the following at the time of application:
- Hold the relevant registration, licence, or professional membership; or
- Be eligible to hold it.
The licensing and registration criterion is directed to whether the applicant is legally able to perform the tasks of the nominated occupation in the relevant Australian State or Territory. It is not sufficient that the applicant has the qualifications or experience to perform the role if, under State or Territory law or an applicable statutory scheme, the occupation cannot lawfully be performed without a licence, registration, approval, authority or professional membership.
This issue is particularly important because, where a licensing or registration requirement is mandatory, it is generally assessed by reference to the position at the time the visa application is made. This is not something that can be sorted out later. Evidence obtained after the application is lodged will only satisfy the requirement if it can be established that the applicant was already eligible at the time of lodgement.
What Does “Mandatory” Actually Mean?
This is where many applicants and employers get tripped up. 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 mandatory, the registration, licence or professional membership that is held, must be of a kind that enables the applicant to perform the full range of tasks and at the skill level required for the occupation.
Conditional, provisional, or limited registration may not satisfy the requirement if it:
- Requires supervised practice before the full range of tasks can be performed; or
- Places restrictions on who the applicant can provide services to (for example, as a result of disciplinary action).
Standard continuing professional development (CPD) obligations, however, are acceptable. These do not make someone “conditionally” registered for visa purposes.
How to Determine Whether Licensing Is Required for an Occupation
The key question is whether the applicant would be legally prevented from performing the nominated occupation, or from performing the core tasks of that occupation, without the relevant licence, registration or membership.
There is no single authoritative source that comprehensively identifies all registration, licensing or professional membership requirements for occupations classified under the ANZSCO framework. This is because such requirements are typically regulated at the State or Territory level under occupation-specific or industry-specific legislation.
The first step in determining whether an occupation is subject to licensing, registration or prescribed professional membership requirements is to review the relevant occupation code in the ANZSCO dictionary. ANZSCO identifies, at the Unit Group level, where occupations within that group may be affected by registration, licensing or membership requirements.
ANZSCO does not itself usually impose licensing or registration obligations. Rather, ANZSCO is used to identify the nominated occupation and its usual tasks. The licensing or registration question is then assessed against the legal requirements applicable to those occupational tasks in the State or Territory where the position is located.
The ANZSCO directory, at the Unit Group level, will either:
- Indicate registration/licensing is required: meaning it is mandatory;
- Indicate it may be required: meaning requirements vary by state, task, or employer context; or
- No indication: meaning it is generally not required.
Step by Step Process
1. Review the ANZSCO occupation code
The ANZSCO, is the appropriate starting point for identifying whether an occupation may be subject to registration, licensing or professional membership requirements. ANZSCO generally refers to these requirements at the Unit Group level for the relevant group of occupations.
2. Check the relevant State or Territory requirements
Licensing and registration obligations are usually imposed under State or Territory legislation. The applicable requirements should therefore be checked by reference to the jurisdiction in which the nominated position is located, including any occupation-specific or industry-specific legislation.
3. Consider industry-specific regulation
Some occupations are also affected by industry regulations or requirements administered by specialist regulators, professional bodies or industry associations. These requirements can differ substantially between occupations and jurisdictions, so the relevant regulator or professional body should be consulted where the role appears to involve regulated work.
Mandatory Requirement May Arise from State or Territory Law
Licensing and registration requirements commonly arise under State or Territory legislation. The relevant State or Territory is the jurisdiction in which the nominated position is located.
For example, mandatory registration or licensing may arise for occupations such as:
- medical practitioners;
- nurses and midwives;
- dentists and other registered health practitioners;
- teachers;
- legal practitioners; and
- other occupations subject to statutory licensing or registration.
The precise requirement depends on the nominated occupation, the duties to be performed, and the State or Territory regulatory regime.
Bottom Line
The licensing and registration requirement under clause 186.211 cannot be waived. But it is also highly fact-specific. Whether registration is mandatory, what type of registration qualifies, and whether an applicant “holds or is eligible to hold” it all require careful assessment against the ANZSCO dictionary, the relevant State or Territory laws, and the applicant’s individual circumstances.
If you’re unsure about your situation, Migration Affairs can assess your profile to ensure compliance prior to submitting your visa application.
Changes to the migration program can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.
Contact Migrations Affairs to speak with our immigration experts for tailored advice on the circumstances and eligibility.
📧 info@migrationaffairs.com.au
🌐 migrationaffairs.com.au/contact
📞 +61 2 8226 8777
