Varuvel Anthony (Migration) - [2025] ARTA 332

Varuvel Anthony (Migration) [2025] ARTA 332 (7 March 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Keziah Varuvel Anthony
Mr Peter Shilton Walter Ponraj
Master Ethan Joseph Walter
Miss Jireh Gracelyn Walter
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2301545

Tribunal:General Member A McMurran
Place:Sydney
Date: 7 March 2025
Decision:Primary Applicant
The Tribunal sets aside the decision and remits the matter to the Department for further consideration with the direction that the primary visa applicant meets r 494.225.
Secondary Applicants

The Tribunal remits the matter to the Department for further consideration with the direction that the secondary applicants meet cl r 494.311.
Statement made on 07 March 2025 at 12:37pm

CATCHWORDS
MIGRATION – Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa – Childcare Worker – Employer Sponsored stream – satisfied that the applicant was in fact performing the role of a Childcare worker – a minimum of 3 years employment in the nominated role – members of the family unit of the primary visa applicant – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 494.225, 494.311

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged with the Administrative Appeals Tribunal (“the AAT”) on 7 February 2023 for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2023 to refuse to grant the visa applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) Subclass 494 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The primary visa applicant, Ms Keziah Varuvel Anthony (the applicant), is a citizen of India, and the remaining three applicants are members of her family, also Indian citizens, comprising her husband and two children. The applicant has been successfully nominated for the position of Childcare Worker (ANZSCO 421111)[1].
[1] ANZSCO renamed OSCA (Occupation and Standard Classification for Australia) effective 6 December 2024.
The criteria for a Subclass 494 visa are set out in Part 494 of Schedule 2 to the Regulations. The applicant must meet the common criteria as well as the criteria in one of two alternative visa streams: the Employer Sponsored stream or the Labour Agreement stream. In the present case, the applicant is seeking the visa in the Employer Sponsored stream.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Decision under review
The visa applicant applied for the visa on 4 April 2022. The delegate refused to grant the visa on the basis that the applicant did not meet cl 494.225 of Schedule 2 to the Regulations.
The delegate found that the applicant had not been employed by the nominator, Penleaze Pty Ltd, t/as Smart Start Montessori Childcare, in the nominated occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.
Hearing
The applicants appeared before the Tribunal on Thursday 6 March 2025 to give evidence and present arguments. The hearing was conducted by video with the applicants in Western Australia and the Member in Sydney. No issue was apparent with the virtual hearing format and all parties, and the Member, were able to see and hear each other throughout.
The applicant and her representative indicated that they were ready to proceed and that all submissions had been made, and no adjournment was necessary, subject to any further requirements from the Tribunal.
The Tribunal received oral evidence from the applicant, and from a representative for the employer, Ms Sarah Fishleigh. An interpreter was not requested, and the applicant and witness appeared to have no difficulty giving their evidence in the English language.
The applicants were represented in relation to the review by their migration agent who also appeared for the hearing and made submissions.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside, and the matter remitted to the Department for further consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant satisfies cl 494.225 as at the time of application, 4 April 2022.
The issue requires a factual analysis of the tasks the applicant was performing during that period as against the description of the role nominated, and the length of time of the applicant’s employment in that role.
For the purpose of this review, the Tribunal need only consider the issue on review before it (r. 494.225). Remaining criteria in Reg 494.22 (Criteria for Employer Sponsored stream) remain matters for consideration by the Department and are not part of this review.
Clause 494.225 sets out that:
494.225
(1)  At the time of application:
(a)  the applicant had been employed in the nominated occupation for at least 3 years on a full - time basis and at the level of skill required for the occupation; or
(b)  circumstances specified by the Minister under subclause (2) existed.
(2)  The Minister may, by legislative instrument, specify circumstances in which an applicant is not required to have been employed as mentioned in paragraph (1)(a) for the purposes of Subclause 494 visas in the Employer Sponsored stream.
The applicant has been successfully nominated on 22 December 2022 for a position as a Child care worker (group leaders only), ANZSCO code 421111, which is an occupation listed on the relevant instrument, LIN 19/219 on the Regional Occupation List.
The required tasks for performing the nominated role are described in ANZSCO as:
·assisting in the preparation of materials and equipment for children’s education and recreational activities
·managing children's behaviour and guiding children's social development
·preparing and conducting activities for children
·entertaining children by reading and playing games
·supervising children in recreational activities
·supervising the daily routine of children
·supervising the hygiene of children
The role as now described in the latest ABS version (OSCA) is described thus:
4311 Early Childhood Educators and Room Leaders
- Support and lead the learning and development of young children in regulated centre-based services and contribute to the implementation and evaluation of the educational program and practice using an approved learning framework.
Tasks for the role described in OSCA (code 431131) are described as:
- Works in partnership with families, staff, community members and external agencies to promote the development, education, care and wellbeing of children
- Leads a team of educators working with a group of children
- Promotes the safety and wellbeing of children
- Supports educators providing education, care and supervision for babies, toddlers, and young children
- Complies with, and supports other educators to comply with, service policies and national and/or state-based legislation
- Supports the day-to-day operation of the service
- Maintains records of each child's learning, wellbeing, development, participation, and progress, and communicates this with families
Level of skill required
At the hearing, the Tribunal heard evidence from the applicant and from her employer, Ms Fishleigh, as to the work performed by the applicant.
The applicant described her role from the time she commenced in April 2017. The description of her duties aligned for the most part with the description provided by ANZSCO and updated by OSCA.
The Tribunal is mindful that ANZSCO, and now OSCA, is described as “merely a guide”, and the task for the Tribunal is to consider the work actually performed.[2]
[2] See Mora &Anor v Minister for Immigration &Anor [2017] FCCA 2303 per Judge Vasta at [44]
The Tribunal listened carefully to the applicant’s evidence and the description of her duties as outlined in her submissions.
The employer witness also gave a detailed explanation of the role and work performed by the applicant. In summary, she states in her written statement:”
To briefly touch on the points outlined in that reference, Keziah worked with us from May 2017 to December 2023 in progressively responsible roles, including Educator and Lead Educator (ANZSCO 421111). Throughout her tenure, she consistently demonstrated leadership, mentorship, and excellence in early childhood education, making her a highly valued member of our team. Her six years of dedicated service underscore her commitment, reliability, and expertise, qualities that are essential to maintaining the high standards of care and education at our centres.
The applicant states that she was working virtually from day 1 in April 2017, as a Group Leader. She was recognised as such by her employer for contractual purposes in May 2017. The applicant states there were 3 other employees whom she led in her role. She also drew on her teaching experience as a primary teacher in face-to face periods with the children in the centre, who were aged between 2.5 and 5 years’ old.
The applicant sates that she was immediately recognised by her employer for her experience, and confidence in dealing with small children. The applicant was asked to design programmes for the children, including for an introduction to mathematics in which subject the applicant had prior training and which was for her a ‘specialty’.
She was involved with all aspects of supervising the children in her care and communicating with the parents as to their progress. She was responsible for aligning the centre’s assessment rating with regulation requirements to meet government early childhood care guidelines.
She stated that she would attend to the children’s daily care needs while they were at the centre, including management tasks such as evacuation drills and first aid preparations and training. She explained that while at the centre, she was largely responsible for its record-keeping, communicating with families, and maintaining records.
Listening to the applicant’s description and answers given to the Tribunal’s questions, the Tribunal accepts and is satisfied that the applicant was in fact performing the role of a Childcare worker (group leader) for the whole of her time commencing in May 2017, shortly after she started in April 2017, and for the duration of her employment. The Tribunal is further satisfied that the applicant’s work as performed aligns substantially with the description and tasks outlined in both the ANZSCO and OSCA guides for the nominated occupation and its related sub-categories.
The Tribunal finds it is satisfied that the applicant was in fact performing the role nominated at the skill level required for the occupation.
Duration of the employment in the role at the time of application
The delegate had found that the available evidence did not demonstrate the applicant had been employed in the nominated occupation for at least 3 years on a full-time basis. The decision notes that it was not clear whether the applicant’s “casual employment during this period was full time or part time”. The relevant period under consideration was from 8 April 2017 until 15 November 2019, after which, there is no issue as to the ‘full-time’ nature of the applicant’s employment.
The applicant gave evidence that she had worked permanently for the nominator for the whole of the period. She explained that she had been on regular daily shifts, for 20 hours, 2 days per week, as permitted by her student visa. She worked as a permanent employee on that basis. The shifts were not random or infrequent. They were regular shifts, by agreement with her nominator/employer. The applicant was on a written contract for the role. The applicant said it was a full-time role, when she was working, 8-hours minimum per day on weekdays, those days regularly 2 days per week, and on days when she was not occupied with her Certificate and Diploma studies.
During vacations, she said she was then engaged 38 hours, 5 days per week by the nominator, working regularly as a full-time employee.
The applicant submits that calculation of her full-time role should reasonably include the fact she was employed for the period from April 2017 until June 2018, as a full-time employee, when she had a maternity break until March 2019, and then resumed from March 2019 until November 2019.
In November 2019, the applicant said she had completed her Diploma studies and was able to work full-time, 38 hours, for a 5-day week.
The Tribunal has had regard to the submitted documents which include the applicant’s employment contracts completed with the nominator during this period, and her payslips and ATO records for the relevant financial years, and up to 16 November 2019, when the applicant’s role was again reviewed by the nominator, her salary upgraded, and her role contracted for permanent full-time.
The Tribunal notes that ‘casual’ employment includes only those employees who are engaged intermittently, have no certainty of work or guaranteed shifts, and no long-term commitment from an employer. In this instance, the Tribunal is satisfied that the applicant was contractually bound to work at agreed times on a regular basis and as committed to by both the applicant and the nominator in a written agreement. Employment law allows the designation “full-time employment” to include those employees who are working permanently part-time, and on a contractual basis. Casual employees have no certainty of work, which is “indefinite”. [3] That is not the case in this instance.
[3]see Fair Work Act (Cth)15A Meaning of casual employee
General rule
(1) An employee is a casual employee of an employer only if:
(a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
(b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.
The delegate’s decision did not include any period of ‘full-time’ employment in the period from 8 April 2017 to 15 November 2019, which was found to be ‘casual’ for the whole of the period, as there was no evidence that the casual employment during this period was in fact “full-time or part time”. The Tribunal respectfully disagrees with that finding, as the evidence for the applicant’s employment and the agreement between the parties has confirmed. The Tribunal accepts that evidence that the casual employment was in fact ‘permanent’.
Having listened carefully to the oral evidence and having regard to the documentation and the evidence from the hearing, the Tribunal is satisfied that part of the period from April 2017 to November 2019 should be allowed as ‘full-time’ in the role nominated. That is because for part of this period, the applicant worked full-time shifts on a permanent contracted basis for 2 day’s every week, save for non-academic periods when on vacation, and when she worked 5-days per week. There was a commitment by both parties to this working arrangement.
There was no issue raised before the Tribunal or the delegate with the period of full-time employment from November 2019 until the time of application (4 April 2022), which calculates as 858 days or 2.35 years.
As to the period from 8 April 2017 until 14 November 2019, the Tribunal finds it is appropriate to allow the following additional periods as meeting the regulation requirement for full-time employment in the nominated role:
·June 2017 (1 month after commencement) to June 2018, totals 375 days
·March 2019 until November 2019, totals 245 days
·November 2019 until April 2022, totals 822 days
·Periods of full-time employment, calculated over 13 weeks academic leave when the applicant worked full-time, 5 days per week, from April 2017 until November 2019, totals 65 days.
The period during the applicant’s agreed maternity leave from July 2018 until March 2019 is not included. It is arguable that an agreed period of maternity leave does not ‘end’ the employment such that working days for that time are then discounted. The Tribunal in this instance however prefers not to include days not actually worked, which it seems ought not be included for the purpose of determining the requirement in the regulation. That is because it is the intention in the requirement that only the worked period provides the necessary experience to perform the nominated role.
The Tribunal allows only 40% of the work time in the period worked between June 2017 and March 2019 (620 days), calculated at the rate of 2 days per week. That makes the total number of days for that period, as full-time in the nominated role, at 248 days.
Taking the total number of days allowed for the casual period (April 2017 to November 2019) at 313 (248 + 65), plus 822 for the full-time period on completion of studies (November 2019 to April 2022), totals 1135 days in full-time employment for the nominated role.
This equates to the equivalent full-time role over the whole of the employment from April 2017 until April 2022 (5 years) at 3.11 years accepted ‘full-time’ experience.
Summary
The Tribunal finds that the applicant has satisfied the requirement at the time of application.
The Tribunal finds that the applicant had acquired over the whole of the period of her employment during the 5 years of that employment by the nominator, from commencement until the time of application, and at the level of skill required, a minimum of 3 years employment in the nominated role.
The Tribunal finds therefore that the criteria in reg 494.225 is met.
It remains however, for the Department to consider the remaining criteria for the visa.
Secondary applicants
Cl 494.311 requires that the secondary applicants are members of the family unit of the primary visa applicant who satisfies the primary criteria for the visa.
As the primary visa applicant has satisfied the regulation cl 494.225, the appropriate course is to remit the matter to the Department for further consideration.
DECISION
The Tribunal sets aside the decision and remits the matter to the Department for further consideration with the direction that the primary visa applicant meets r 494.225.
The Tribunal remits the matter to the Department for further consideration with the direction that the secondary applicants meet cl r 494.311.
Date(s) of hearing: 6 March 2025
Representative for the Applicant: Mr Andrzej Kurowski (MARN: 0321519)