Yesildag (Migration)

Yesildag (Migration) [2020] AATA 5854 (15 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Nurhan Yesildag
Ms Dize Ada Yesildag
CASE NUMBER:  1802166
DIBP REFERENCE(S):  BCC20171020045
MEMBER:Karen Synon
DATE:15 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 15 December 2020 at 1:51pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Early Childhood (Pre-primary School) Teacher – skills, qualifications and employment background to perform the nominated occupation – applicant’s experience and passion for her role – applicant helps induct and train new staff – professional registration for the role – decision under review remitted
LEGISLATION
Education and Care Services National Regulations, ss 133, 242
Education and Training Reform Act 2006 (VIC)
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.72
CASES
Joshi v MIMIA [2005] FMCA 1116
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 15 March 2017.
At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 16 January 2018 on the basis that cl.457.223(4)(da) was not met because the first named applicant (‘the applicant’) had not demonstrated she had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The applicants appeared before the Tribunal on 30 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Naomi Salisbury, the applicant’s employer.
The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
On 9 October 2020 the representative wrote to the Tribunal in the following terms:
I do not think a ZOOM hearing can possibly bring out a full & proper case for the applicant due to the lack of the Member not being able to see the body language & reactions & intensity of the applicant.
The fact that the applicant & myself would have to be in two separate locations to attend a ZOOM meeting which would restrict my abilities to advise the applicant & assist the applicant to produce a full & best case scenario for the applicant .
The employer wishes to attend to hearing as a witness & explain in person the …LAW… relating to requirements for registered early childhood teachers on licensed premises & again she would have to be in a third separate location & again possible restricting the applicants best case scenario.
I respectfully request that we wish to wait until covid restrictions can be lifted before we present….in person… the applicant’s case.
The Tribunal, on 12 October 2020, advised the following:
The Member has considered the submission received Friday 9 October 2020 requesting that this matter be postponed until an in person hearing can be conducted.
The Member carefully considers all matters before they are scheduled for video hearings to ensure it is reasonable to hold a hearing by video, having regard to the straightforward nature of this matter.
During the COVID-19 pandemic hundreds of matters have been heard by video and the Member has not experienced any problems in straightforward such as this by video.
The Tribunal has the capacity to join in many parties at different locations without any issues however notes that typically applicants and representatives (and often witnesses) will participate from the same location when they are based in the same city as is the situation in this case.
Further, the Member notes there are no credibility issues associated with this matter. The only issue is whether the applicant has the skills, qualifications and employment background the Tribunal considers necessary to perform the nominated occupation.
Therefore, the issue identified of “the Member not being able to see the body language & reactions & intensity of the applicant” will not be relevant to this finding of fact.
In considering this, the Member has also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video given that in person hearings will likely not resume in Melbourne until next year.
Given the changes in Melbourne’s lock down laws since the time of the representative’s correspondence, the applicants, witness and the representative were able to participate in the hearing from the one location. The Tribunal also granted an additional three weeks after the hearing for any further such submissions to be provided. Because the Tribunal did not discern any difficulties with any of the parties fully participating in the hearing it is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).
Skills, qualification and employment background of the applicant
Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
In this case the nominated occupation is ‘Early Childhood (Pre-primary School) Teacher’.
Before taking evidence from the applicant the Tribunal explained issue in this case is that the occupation which she nominated which is an Early Childhood (Pre-primary School) Teacher, appears to require registration in Victoria.
The applicant gave evidence that she completed a Certificate III and Diploma in early childhood education and care and is passionate and obsessed to learn new things every day; her job is everything to her. She has projects and goals and improves herself every day. Her work is enjoyable, and the children make her day. She has now been employed at Minnows for over five years, since she finished her Diploma. She has not tried to register with VIT as Early Childhood (Pre-primary School) Teacher. She did not peruse her career in the field in which she completed her bachelor’s degree, tourism, because with her husband’s job as a diplomat, they were travelling around the world and she could not continue this occupation. The applicant said she has always loved children and has worked as a voluntary teacher aid at her children’s schools. She loves her job and is a hard worker and she not only teaches the children but learns from them every day. She has set up her life in Australia for the past seven years and her son has permanent residency here. Every day, going to her job, is the joy of her life.
The applicant’s employer, Naomi Salisbury, confirmed that the applicant has worked for her for over five years. She started as a casual and became full time from October 2016. She owns and operates three centres (and will soon open a fourth). Her brother built the centres. Ms Salisbury has been in the childcare sector since 1988, first as an untrained early childhood educator. Since running her own centres, she has had a lot of trouble employing appropriate people. She explained that she has a fairly extensive process for employing staff and employs people based on three things: their experience, including their life experience; her intuition; and where they live in proximity to where they will work; their community. She explained that this is very important because her centres are about community and relationship with families. The applicant scored very highly across all criteria. And, when she came to them about sponsorship, because they were already sponsoring other people, she readily agreed. They have sponsored six other people on 457s for the same occupation; all were approved at the primary stage and they have never had to apply for review. At the time, not all of them were registered as teachers; registration is a relatively new thing.
Ms Salisbury employs 60 staff across her three centres and has found it very difficult to source genuine, kind and passionate people. She is desperate for quality educators with demand rapidly increasing. She has invested a lot of time and effort into the applicant and her career. It has been very difficult for the applicant because she does not have permanent residency or Australian citizenship and she, along with three other staff on visas, were not eligible for JobKeeper so the centre paid their salaries throughout the pandemic lockdown.
Ms Salisbury said that, for up to six weeks a year, under the law, if they have a qualified early childhood teacher away on sick or annual leave, they are able to back fill that position with a staff person with a diploma and this is the only way the centres can operate effectively; they use this provision all the time and the industry could not run any other way. Also, reading through the ANZSCO tasks, the applicant can and does perform all these duties. Ms Salisbury emphasised the critical importance of the industry and how desperately it needs quality staff. The applicant is an integral part of the Minnows team and has all the skills and knowledge needed; she also helps induct and train people into their roles. She is one of their top educators who is truly valued. Ms Salisbury’s business is all about families and children and the youngest people in our society and these working families need and deserve good, passionate, quality educators.
The applicant’s daughter (the second named applicant) gave evidence that she is in year 10 at McKinnon Secondary College. She came to Australia while she was in grade 3 from Turkey with her father who is a diplomat. She thinks they spent about four years in Australia on his diplomatic visa. Her father is currently based in South Africa. Her brother is now an Australian permanent residency. The applicant’s daughter gave evidence that she has made really close friends in Australia who she considers to be family. She really loves her school and is actively involved in school orchestras and choirs and plays piano, cello and guitar. She is doing a VCE subject this year. She also plays and coaches netball and works part time at a children’s play centre. She has made many plans and dreams about her future and hopes to study law. It is very important to her to be able to stay in Australia.
During the hearing the representative noted that the ANZSCO definition has two alternatives being the Early Childhood (Pre-primary School) Teacher and the other is Kindergarten Teacher and it is the Kindergarten Teacher which requires registration not the occupation of Early Childhood (Pre-primary School) Teacher. The Tribunal noted the representative is free to address this issue further in any post submission hearings.
Following the hearing a submission was received which relevantly contends:
Minnows Early Learning Centres Cheltenham
As mentioned in the hearing Mrs Naomi Salisbury advised that Minnows Early Learning Centres cater for 320 children (6 mths up to 5 years) over its 3 centres. They employ 50 staff including 8 registered Kindergarten teachers.
Mrs Salisbury advised that Minnows meets all the laws & regulations of the State of Victoria & the National Governing body ACECQA & has never received any complaint, sanction, restraint from any Government body or Industry authority .
Minnows has been operating for 14 years.
Previous 457 Sponsorship & 457 Grants at Minnows Early Learning
Mrs Salisbury revealed at the hearing that Minnows has made & had granted 5 – 457 applications by the Department of Immigration prior to this application for [the applicant]. The majority of the previous 5 - 457 applications did not hold a Bachelor of Education; as demanded by the Institute of Teaching , & none held registration prior to the visa grant.
Attached are the cases as mentioned above , their names have been removed for privacy , BUT the Department of Immigration File no , ID number & Client number are all visible….also attached are their relevant CVs as lodged with the applications.
1.     ID 29024128320      Visa grant & CV attached
2.    ID 14394205298       Visa Grant & CV attached
3.    ID 22754210545       Visa Grant & CV attached
4.    ID 26725144534       Visa Grant & CV attached
5.   ID 1275566154         Visa Grant & CV attached
The applicant’s qualifications, skills & work experience
The applicant & the employer have both verbally detailed in the hearing that indeed the applicant has the qualifications, skills & work experience equal to, all of the above previous 457 grants & is indeed carrying out the tasks of the nominated position. The member has access in previous submissions to the employer written work references covering work experience & skills and all qualifications of the applicant.
Migration options for the applicant as mentioned by the Member during the hearing
Sub 407 Training visa:
I wish to advise the member that the applicant…arrived inside Australia holding a Diplomatic visa sub 403 & under the regulations Schedule 1 item 1237 Temporary Activity Class GG (3) (7) she is not eligible to lodge an application under sub 407.
Skills Assessment: Institute of Teaching:
I also advise that I conducted thorough discussions with staff at the Institute of Teaching Victoria on [behalf of the applicant] & it became quite apparent that the only Bachelor that the Institute would accept as relevant is a Bachelor of Teaching/Education (or similar in a foreign country) & no amount of work experience or the fact that the children she educates were 6 months to 3 years of age could substitute.
Considerations
The member indicated that she would take into account the whole of the information given in the hearing by the daughter of the applicant, the applicant & the employer; & so; as to the ramifications; to all above parties should a negative decision be given, the result will be catastrophic.
I understand that the AAT (MRT) is regulated by compliance with the law, however the law can be interpreted & applied from a number of different points of view and so the below suggestion/recommendations are given.
Suggestion/Recommendation to the Member
The DIBP case officer specifically refused the 457 application on the grounds of...” paragraph 457.223(4) da “On assessment …………………I find that their qualifications and/or competencies and /or employment background are inconsistent with the level of qualifications and /or experience specified in ANZSCO as that required to perform the nominated occupation of Early Childhood (Pre-Primary School) Teacher”.
The case officer did not refuse on the grounds or demand that registration by the applicant was required prior to grant a 457 visa.
The applicant & the employer Minnows Early Childhood Centre suggest /recommend that the member accept that .at the time of visa processing & grant…the applicant does not require registration ; rather at the time of employment ; the employer ; is bound by laws in Victoria in relation to employment of Early Childhood teachers.
The applicant & the employer seek that the member respond to the DHA that indeed the applicant does hold the qualifications, skills, & work experience to carry out the tasks of the nominated position of Early Childhood (Pre-Primary School) Teacher.
Especially given the fact the DHA has granted 457 visas on 5 prior occasions for the same employer with the applicants holding similar qualifications, skills & work experience as the applicant…
The employer Minnows Early Childhood Centres acknowledges that they are bound by Victorian Laws in relation to employment in this matter.
The Department’s policy set out in its Policy and Operational documents notes the following in relation to ‘Qualifications and Experience’:
110 Assessment against the nominated occupation in ANZSCO
…110.2 For nominations made on or after 1 July 2010
Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:
·for the occupation in the relevant ANZSCO code or
·if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa).
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Early Childhood (Pre-primary School) Teacher’. However, the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.
In considering the ANZSCO definition and tasks for the occupation of ‘Early Childhood (Pre-primary School) Teacher’ (Code 241111) which is part of the Unit Group 2411. It records the indicative skill level in Australia as:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
The tasks of the relevant Major Group 2411 ‘Early Childhood (Pre-primary school) Teacher’ are listed in ANZSCO as including:
·planning and structuring learning in both indoor and outdoor environments using a variety of materials and equipment to facilitate students' development
·providing a variety of experiences and activities to develop motor skills, cooperative social skills, confidence and understanding
·promoting language development through story telling, role play, songs, rhymes and informal discussions held individually and within groups
·observing students to evaluate progress and to detect signs of ill health, emotional disturbance and other disabilities
·observing nutritional health, welfare and safety needs of students and identifying factors which may impede students' progress
·discussing students' progress with parents
·attending parent interviews, and staff and committee meetings
·participating in community and family support programs as appropriate
·supervising student teachers on placement

In reaching a level of satisfaction as to the applicant’s relevant qualifications and experience the Tribunal accepts that the determination of each application requires more than a narrow matching process between the applicant's tasks and the ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1]
[1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).
In refusing the visa, the delegate recorded:
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) states the following in relation to the skill level requirement for a Early Childhood (Pre-primary
School) Teacher.
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Therefore, a bachelor degree or higher qualification is the minimal skill requirement for an Early Childhood (Pre-primary School) Teacher.
The applicant provided a Diploma of Early Childhood Education and Care from the Education Institute as evidence of the highest level of a relevant qualification in the area of Early Childhood (Pre-primary School) Teaching. This information is consistent with the information provided on the applicant's Curriculum Vitae.
According to the applicant's Curriculum Vitae they have a "Bachelor Degree of Tourism & Hotel Management". However, this cannot be considered a relevant degree for a Early Childhood (Pre-primary School) Teacher.
Therefore, the applicant does not have the required bachelor degree or higher qualification in the area of Early Childhood (Pre-primary School) Teaching but rather has a lesser qualification which is a Diploma of Early Childhood Education and Care.
On 4 September 2020, in accordance with s.359(2) the Tribunal invited the applicant to provide, by 18 September 2020, the following additional information:
Information confirming [the applicant] has the required registration with the Victorian Institute of Teaching (VIT) for the occupation of ‘Early Childhood (Preprimary school) Teacher’
 For information on Early Childhood teacher registration and
accreditation requirements please see:
>
In response, on 14 September 2020 the representative provided information with a covering email that relevantly reads:
[i] now attach a letter from the applicant’s employer stating that the applicant ...DOES NOT REQUIRE....VIT registration...in fact it is the Child Center itself that requires the registration depending upon the numbers of children at the center...(this center has 68 children). The applicant does not hold VIT registration & by law does not require her to do so...
Provided was the following letter from the applicant’s employer:
I am writing to you to inform you that registration with the Victorian Instit ute of Teaching (VIT) is NOT...a requirement for all employees working at an Early Childhood Centre in Victoria.
The Education and Care Services National Regulations…(National Regulations) support the National Law by providing detail on a range of operational requirements for an education and care service including starting arrangements and qualifications.
This law encompasses Victoria and requires the Early Childhood Centre itself to be licensed ...and lo comply with these regulations and law: depending on the services licenced number of children. only I (one) employee supervising at that Early Childhood Centre requires VIT registration.
I have attached a link to ACECQA our governing body where further information can be obtained our employees at our Minnows Early Learning address are required to hold an ACECQA early childhood approved qualifications and a Working with Children Check.
[The applicant] holds an ACECQA ea rly childhood approved qualification and a Working with Children Check and has always held them while working for Minnows Early Learning Pty Ltd. I can confirm that at the address of Minnows Early Learning Centre where [she] works there is a registered VlT employee.
Supporting this, Mrs Salisbury provided an extract, s.133 of the Education and Care Services National Regulations:
133 Requirement for early childhood teacher--centre-based services--60 to 80 children
(1) If a centre-based service provides education and care to 60 or more but not more than 80 children preschool age or under on a given day--
(a) an early childhood teacher must be in attendance at the service--
(i) for at least 6 hours on that day, if the service operates for 50 or more hours a week; or
(ii) for 60 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week; and
(b) a second early childhood teacher or a suitably qualified person must be in attendance at the service--
(i) for at least 3 hours on that day, if the service operates for 50 or more hours a week; or
(ii) for 30 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week.
(2) A centre-based service is not required to comply with subregulation (1) if--
(a) the approved number of places for children preschool age or under at the service is 60 or more but not more than 80; and
(b) the service employs or engages--
(i) a full-time or full-time equivalent early childhood teacher at the service; and
(ii) a second early childhood teacher or a suitably qualified person for half of the full-time or full-time equivalent hours at the service.
On 14 September 2020 the Tribunal wrote to the Victorian Institute of Teaching in the following relevant terms:
The following information is requested pursuant to s. 359(1) of the Migration Act:
· Information about whether VIT registration is mandatory for a person employed as an ‘Early Childhood (Pre-primary school) teacher’ (ANZSCO code 241111).
For the ANZSCO position description of this occupation please see:
In response on 15 September 2020, Mr Geoffrey Coats, Corporate Legal Counsel, Governance & Council Secretariat relevantly responded:
I assume reference to “VIT registration” to be a reference to registration as an early childhood teacher pursuant to the Education and Training Reform Act 2006 (Victoria) [the Act].
The request appears to be a request that the Victorian Institute of Teaching (VIT) provide legal advice about the applicability of the Act to an unnamed person seeking a “subclass 457 Temporary Work (Skilled) visa”.
It would be entirely inappropriate for VIT to express an opinion on this matter. VIT is required to assess all applications for registration pursuant to the provisions of the Act and based on the individual circumstances of each case.
Although VIT declines to provide legal advice in this matter, for the reasons outlined, the following information may be of assistance.
1.‘Early Childhood (Pre-primary school) teacher’ is not a term featured in the Act.
2.ANZSCO code 241111 is not a term featured in the Act.
3.“early childhood teacher” is defined in section 2.6.2 of the Act.
4.Section 2.6.12C of the Act sets out the qualification for registration as an early childhood teacher.
5.Section 2.6.56A of the Act states that a person must not employ a person as an early childhood teacher in an early childhood service unless the person is a registered early childhood teacher.
6.Victoria is the only Australian State or Territory with a specific registration scheme for early childhood teachers.
Some further guidance can be found on the VIT website. >
The relevant extracts of the Act are below:
The Education and Training Reform Act 2006 relevantly states:
s 2.6.12C Qualification for registration as an early childhood teacher
A natural person is qualified to be registered as an early childhood teacher—
(a) if the person—
(i) has obtained an approved early childhood teaching qualification, or is taken under the national regulations to hold an approved early childhood teaching qualification; and
(ii) produces evidence that the person satisfies the criteria approved by the Minister about—
(A) suitability to be an early childhood teacher; and
(B) competence in speaking or communicating in the English language for the person to teach in an early childhood service; and
(iii) produces evidence that the person has achieved the standards of professional practice required for registration as an early childhood teacher that are approved by the Minister; or
(b) if the person is currently registered as a non-practising early childhood teacher.
2.6.56A Unregistered early childhood teachers
(1) A person or body must not employ or engage a person as an early childhood teacher in an early childhood service unless the person—
(a) is a registered early childhood teacher; or
(b) holds a temporary approval that permits the person to be engaged or employed in the early childhood service for the purposes of meeting funding requirements in the kindergarten guidelines; or
(c) is taken to be an early childhood teacher under regulation 242 of the national regulations.
Penalty: 120 penalty units.
(2) A person is not employed or engaged as an early childhood teacher only for the reason that the person is—
(a) taken to be an early childhood teacher under regulation 135 of the national regulations; or
(b) taken to be a teaching staff member under regulations made under the Children's Services Act 1996.
Relevantly the Victorian Institute of Teaching website states:
if you are employed as an early childhood teacher (ECT) in a Victorian education and care service or children’s service, you will need to be registered.
However, ‘[i]f you are employed as an educator or staff member in an education and care service or children's service, and don’t hold an approved early childhood teaching qualification, you won't be required to register.’ The VIT website also sets out the qualifications needed to be registered as an early childhood teacher, including four years of full-time or equivalent higher education study, including an approved initial primary and / or secondary teaching qualification of at least one year's duration, or an equivalent qualification.
The Australian Children’s Education and Care Quality Authority (ACECQA) looks after the National Quality Framework (NQF) which introduced a new quality standard in 2012 to improve education and care through national legislation and regulations. The NQF sets out the minimum educator qualification requirements for working with children preschool age and under in centre-based services. The website sets out which jurisdictions require registration for early childhood teachers, and confirms that Victoria requires registration through VIT. It also sets out the qualifications and the usual roles and responsibilities for an early childhood teacher (an early childhood teaching qualification or equivalent – usually a bachelor degree), compared to an early childhood educator (a traineeship through to a Diploma/Certificate IV).
The Australian Children’s Education & Care Quality Authority website[2] provides the following information:
Registration is not a requirement for early childhood teachers (ECTs) under the National Quality Framework (NQF) but it is a requirement under some state and territory legislation.
See the table below for individual teacher registration or accreditation requirements in your state or territory, or contact your local teacher regulatory authority(link is external) for more information.
[2] cellpadding="0" cellspacing="0">
State/Territory

Teacher registration/accreditation requirements

Teacher regulatory authority

ACT

No registration requirements for ECTs in NQF settings that are not attached to an ACT school.

ACT Teacher Quality Institute(link is external)
NSW From 18 July 2016 ECTs working in approved centre-based settings must be accredited NSW Education Standards Authority(link is external) Northern Territory Registration is not required for all ECTs. However, preschools are attached to schools and as such require registration as a condition of employment. Teacher Registration Board of the Northern Territory(link is external) Queensland The Queensland College of Teachers does not require registration for ECTs in NQF settings. Some employers require teacher registration as a condition of employment. Queensland College of Teachers(link is external) South Australia Since 1976 all ECTs have been required to be registered. From 1 January 2014 all ECTs must be registered, including those working in NQF settings. Teachers Registration Board of South Australia(link is external) Tasmania Tasmanian kindergartens are part of Tasmanian schools and as such kindergarten teachers are required to hold teacher registration. Registration is not required for ECTs in NQF settings that are not kindergartens or schools. Teachers Registration Board of Tasmania(link is external) Victoria Since 30 September 2015 all ECTs employed or engaged in the role of an ECT in an early childhood and care service or Victorian Children's Centre must be registered. Victorian Institute of Teaching(link is external) Western Australia Since 6 December 2012 all ECTs must be registered. Teacher Registration Board of Western Australia
1. The Tribunal, based on all of the above information has formed the view that employment as an Early Childhood (Pre-primary School) Teacher’ requires registration with VIT however, after reviewing the Department’s policy and operational documents it notes the advice that “to comply with visa condition 8107, subclass 457 primary visa holders must, however, obtain any mandatory registration/licensing/membership before performing work in the nominated occupation.[3]
  [3] At 4.7.6.1.Overview.
2. The Tribunal has therefore confined its consideration of the applicant’s skills, qualifications and employment background necessary to perform the tasks of the nominated occupation rather than to consider what registration may be required before a 457 is granted that would enable the applicant to perform the nominated occupation as a visa holder. In doing so the Tribunal considers persuasive the evidence provided that the Department has previously approved five other nominees for this occupation without prior VIT teacher registration.
3. In this case it is without contention that the applicant does not hold a bachelor’s degree in a related field of childhood education ,although she does hold a bachelor’s degree. The applicant holds a diploma and extensive experience in the field. Her employer spoke persuasively of her skills, experience and suitability for the position. As noted above ANZSCO is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Early Childhood (Pre-primary School) Teacher. In the circumstances of this case the Tribunal has determined that the applicant’s past performance in the occupation, her qualifications and unquestionable value to her employer, along with her demonstrated capacity to perform the tasks outlined in ANZSCO (as detailed in paragraph 26), satisfy it that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
4. For these reasons, the applicant satisfies the requirements of cl.457.223(4)(da).
5. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.
  DECISION
6. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
  ·cl.457.223(4)(da) of Schedule 2 to the Regulations.
  Karen Synon
  Member
  
  ATTACHMENT - CLAUSE 457.223 (EXTRACT)
  457.223
  …
  Standard business sponsorship
  …
  (4)The applicant meets the requirements of this subclause if:
  (a)each of the following applies:
  (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
  (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
  (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
  (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
  (ba)either:
  (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
  (ii)     each of the following applies:
  (A)the applicant is employed to work in the nominated occupation;
  (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
  (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
  (d)the Minister is satisfied that:
  (i)    the applicant’s intention to perform the occupation is genuine; and
  (ii)     the position associated with the nominated occupation is genuine; and
  (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
  (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
  (eb)if:
  (i)    the applicant is not an exempt applicant; and
  (ii)     subclause (6) does not apply to the applicant;
  the applicant:
  (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
  (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
  (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
  (f)either:
  (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
  (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
  …
  (6)This subclause applies to an applicant if:
  (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
  (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
  …
  (11)In subclause (4):
  exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

[2020] AATA 5854

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction