Immigration Lawyer Insights - Interpretation of Overseas Employment in the context of remote work
The case of Alsheri v Minister for Home Affairs [2025] FedCFamC2G 242, decided on 25 February 2025 presents an important legal development in Australian migration law, particularly in relation to the interpretation of overseas employment for the purposes of claiming points under Schedule 6D to the Migration Regulations.
This case is noteworthy in the General Skilled Migration context as it involves an applicant, Mr Alsheri, who claimed points for overseas employment which he performed remotely, and while he was physically present in Australia on a Student visa.
In particular, the outcome of this case could have broader implications on how overseas employment is interpreted for the purposes of claiming points under Schedule 6D of the Migration Regulations 1994 (Cth) in the future, as well as how remote work should be assessed.
Alsheri v Minister for Home Affairs (2025) FCFC 242: A Significant Development in the Interpretation of Overseas Employment Under Schedule 6D of the Migration Regulations
Background to the Application
Mr Alsheri was invited to apply for a Skilled Independent (Subclass 189) visa on 18 April 2018, following which he lodged a Subclass 189 visa application in his nominated occupation of ANZSCO 234914 Physicist on 3 June 2018.
In Mr Alsheri’s Subclass 189 visa application, he sought to claim 5 points for his overseas employment under Schedule 6D of the Migration Regulations, including for:
17 - 18 months of work experience undertaken in Saudi Arabia as a Medical Physicist before he arrived in Australia on a Student visa around 2014; and
work experience undertaken for the Ministry of Health in Saudi Arabia (who was sponsoring his studies in Australia) as a Medical Physicist, whilst physically present in Australia as a Student visa holder between around 2014 (the approximate time he appears to have arrived in Australia) and 18 April 2018 (the date of invitation).
By way of background, skilled visa applicants can only claim 5 points for overseas employment where they have at least 36 months (i.e. 3 years) of employment outside of Australia, in the 10 years prior to an invitation being issued to apply for the visa, and where:
the applicant was remunerated for the employment; and
the employment was for a minimum of 20 hours per week.
On 10 January 2019, Mr Alsheri’s Subclass 189 visa application was refused by the Department of Home Affairs. The Department concluded that Mr Alsheri did not have enough overseas employment to claim 5 points, as the work he performed for the Ministry of Health in Saudi Arabia (the overseas employer), while physically located in Australia, did not qualify as "overseas employment."
Following the refusal of his Subclass 189 visa application, Mr Alsheri applied to the Administrative Appeals Tribunal (AAT) (the predecessor to the current Administrative Review Tribunal) for merits review of his case.
Unfortunately, the Department’s decision to refuse Mr Alsheri’s Subclass 189 visa application was affirmed by the Administrative Appeals Tribunal (AAT) on 15 October 2020.
The Tribunal’s Decision (Alsheri v Minister for Home Affairs [2020] AATA 4508)
Despite describing Mr Alsheri as being “technically… employed by the Ministry of Health while he pursues further study in Australia”, the Tribunal found that:
the 17 to 18 months when he was employed in Saudi Arabia did not meet the minimum period of 36 months for which he could claim points for overseas employment;
the fact that he was regularly paid the Ministry of Health in Saudi Arabia whilst physically residing in Australia did not amount to evidence of his employment, but to his continuing scholarship payments; and
while the Tribunal is prepared to accept Mr Alsheri’s oral evidence that he answers emails for the Ministry of Health in Saudi Arabia, while in Australia, “this appears incidental and does not amount to employment overseas such that points could be awarded”.
The Tribunal thus concluded that Mr Alsheri did not meet the minimum period of at least 36 months overseas employment experience in the ten years immediately before the invitation to apply for the visa was issued, and that he was therefore entitled to no points for his overseas employment.
Mr Alsheri’s (Applicant) Arguments at Judicial Review
Following the AAT’s decision to affirm the refusal of his Subclass 189 visa applicaiton, Mr Alsheri applied to the Federal Circuit Court (as the Federal Circuit and Family Court of Australia was then known) for judicial review of the AAT’s decision.
Mr Alsheri argued that his remote work for an overseas employer should qualify as overseas employment under the Migration Regulations. He asserted that the key factor should be the location of the employer, not the physical location of the employee, and that regardless of the fact that he was located in Australia while performing his duties, being employed by a company based outside Australia should meet the criteria for claiming points for overseas employment.
The Minister’s (Respondent) Arguments at Judicial Review
The Minister contended that given the way the word “employed” is defined in Regulation 2.26AC(6) of the Migration Regulations 1994 (Cth), which emphasises that an applicant would only be employed in the relevant sense if he or she were engaged in the occupation, in the sense of actively working in the role and deriving direct experience, the AAT was unlikely to be satisfied that Mr Alsheri had been engaged in the occupation of ANZSCO 234914 Physicist in Saudi Arabia while actually residing in Australia.
Regulation 2.26AC(6):
employed means engaged in an occupation for remuneration for at least 20 hours a week.
Counsel for the Minister further noted that Mr Alsheri was “certainly not engaged in that occupation for at least 20 hours per week… when the evidence suggests his responsibilities were limited to answering emails for several hours a day”.
The Court's Findings in Alsheri v Minister for Home Affairs (2025) FCFC 242
Preliminarily, the Court stated that the Tribunal’s job is to ask and answer the right question in each case, stating that if the Tribunal asks itself the wrong question, or if it is unclear precisely what question the Tribunal had asked, there would be jurisdictional error (i.e. legal error).
In this regard, the court noted the Tribunal finding that Mr Alsheri was still “technically… employed”, while also finding that the Mr Alsheri’s work in Australia does not amount to “employment overseas”, “invites confusion about the question the Tribunal was asking itself”.
Since the Tribunal’s reasons did not expressly refer to Schedule 6D or Regulation 2.26AC(6) when considering the definition of “employed”, it was therefore not clear that the Tribunal asked itself the correct question, and the Court ultimately found that the AAT had made a legal error in affirming the refusal of Mr Alsheri’s visa application. On this basis, Mr Alsheri’s judicial review application was successful, and the AAT’s decision was quashed by the Court.
While the Court identified a legal error in the Tribunal’s decision, it is important to note that the Court did not determine whether Mr Alsheri’s remote work for the Ministry of Health in Saudi Arabia, undertaken whilst he was in Australia, should be classified as "overseas employment" under the Migration Regulations. This is because the role of the Court in judicial review applications is distinct from the role of the AAT or other decision-makers who assess the merits of a case, and the Court’s does not reconsider or re-evaluate the merits of a case. Instead, the Court’s task is to determine whether there has been a legal error in the decision-making process. This involves assessing whether the decision-maker (in this case, the AAT) followed the correct legal procedures, interpreted the law correctly, and made a decision that is reasonable within the scope of the legislation.
Following the successful outcome in Mr Alsheri’s judicial review application, the Court quashed the AAT’s decision and remitted his case to the Administrative Review Tribunal (ART) (which replaced the AAT on 14 October 2024), for a new decision to be made by the ART according to law.
The Court's Ruling and Its Implications
While the Federal Circuit and Family Court of Australia did not make any substantive findings on whether Mr Alsheri’s remote work met the criteria for overseas employment, the Court’s comments appear to encourage an open approach by administrative decision makers when it comes to assessing employment for General Skilled Migration purposes.
Interestingly, the Court’s decision in Alsheri v Minister for Home Affairs notes that the AAT had not sufficiently considered the full scope of Mr Alsheri’s employment circumstances, including factors such as
the studies Mr Alsheri was undertaking in Australia; and
the queries he was answering by email which could be regarded as evidence of active engagement that provided useful experience which helped equip Mr Alsheri to work as a medical physicist for the Ministry of Health in Saudi Arabia, whilst in Australia.
In particular, the Court expressly stated that “[m]uch may depend on the nature of the studies and the queries to which he was responding” when considering whether Mr Alsheri was engaged in an occupation for remuneration over the appropriate timeframe.
This suggests that notwithstanding Mr Alsheri not being physically present in the same country as his overseas employer, depending on the nature of the work he undertook the Minister of Health in Saudi Arabia while residing in Australia on a Student visa, this remote work may still constitute “employment”.
On the other hand, it is important to note that the Court did not explicitly address whether Mr Alsheri’s “employment” could constitute employment outside Australia, nor did the Court express any opinion about this.
Looking out for the Final Determination of the Alsheri case
As the question of whether working for an overseas employer while physically located in Australia constitutes "overseas employment" for the purposes of claiming points under the Migration Regulations is still unresolved, it remains to be seen whether the Administrative Review Tribunal’s (ART) final determination of Mr Alsheri’s case will provide further clarify on this issue.
Going forward, the Alsheri case may have significant implications for immigration law, especially as remote work becomes more common with the modernisation of our workplaces. The final determination of Mr Alsheri’s case could set an important precedent for future visa applications, and could have significant implications for skilled migration policies, particularly as more people work remotely across borders with the increasingly global nature of work.
The ART’s upcoming decision in Mr Alsheri’s case may be of critical influence in future determinations of whether remote work for a foreign employer can qualify as employment outside Australia for General Skilled Migration purposes. Furthermore, it remains to be seen whether the final determination of Mr Alsheri’s case could have a broader implication on how remote work is assessed for not just General Skilled Migration purposes, but also employer-sponsored matters.
Based on the Minister’s submissions to the Court, it appears that Mr Alsheri may experience difficulties with demonstrating that he actually engaged in work with the Ministry of Health in Saudi Arabia for at least 20 hours per week in his nominated occupation of ANZSCO 234914 Physicist (or a closely related occupation), whilst he was in Australia. On this basis, it is possible that the ART ultimately finds that Mr Alsheri’s specific work arrangements with the Ministry of Health in Saudi Arabia (while he was residing in Australia on a Student visa) do not entitle him to any points for “employment” for General Skilled Migration purposes, e.g. where the AAT is not satisfied that he was actually remunerated for this work, or where there is a lack of evidence to show that he sufficiently engaged in work as a Medical Physicist with the Ministry of Health in Saudi Arabia for at least 20 hours per week.
Nonetheless, it will be interesting to see whether the ART makes any findings about whether remote work undertaken in Australia, for an employer based in another country, could ever constitute employment outside Australia under Schedule 6D to the Migration Regulations 1994 (Cth), such that employment undertaken remotely in Australia for an overseas employer can be treated as overseas employment for General Skilled Migration purposes.
