Biswas v Minister for Immigration
[2009] FMCA 95
•17 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BISWAS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 95 |
| MIGRATION – Application for review of MRT decision – where applicant was short 5 points in application for visa – where Tribunal considered whether applicant’s spouse employed for relevant period in skilled occupation – where Tribunal compared spouse’s duties with duties of non-skilled occupations – whether Tribunal failed to assess spouse’s duties against the criteria for claimed skilled occupation of office manager. |
| Migration Regulations 1994 Migration Act 1958, s.359 |
| Shahid v Minister for Immigration [2004] FCA 1412 |
| Applicant: | KANAK RANJAN BISWAS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2249 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 February 2009 |
| Date of Last Submission: | 6 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2249 of 2008
| KANAK RANJAN BISWAS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application seeks judicial review of a decision of the Migration Review Tribunal given on 23 July 2008 and handed down on 1 August 2008 affirming a decision not to grant the applicants Skilled - Independent Overseas Student (Residence) (Class DD) visas. At the commencement of the decision the Tribunal helpfully sets out the relevant law relating to the issue of the particular visa under consideration. The Tribunal notes that the delegate refused the visa application on the basis that the first named applicant did not satisfy Clause 880.222 of Schedule 2 of the Migration Regulations 1994. The lack of satisfaction was as a result of the first named applicant not having the qualifying score when assessed in relation to the visa under the point system provided for in Sub-Division B of Division 3 of Part 2 of the Migration Act 1958 (the “Act”). I set out below the extract from the Tribunal decision which explains the relevant law at [CB 278-279]:
“The Skilled – Independent Overseas Student (Residence) (Class DD) visa is an onshore permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification. This class of visa contains one subclass, Subclass 880 (Skilled – Independent Overseas Student): item 1128CA(4) of Schedule 1 to the Regulations. This visa allows tertiary-qualified overseas students to apply for and have their visas granted in Australia.
Item 1128CA of Schedule 1 to the Regulations sets out the requirements for making a valid application for a Class DD visa. These include that an applicant seeking to satisfy the primary criteria for the visa must nominate a ‘skilled’ occupation in her or his application and that the application be accompanied by satisfactory evidence that a ‘relevant assessing authority’ has assessed the skills of the applicant seeking to satisfy the primary criteria, as suitable for their nominated skilled occupation. ‘Skilled occupation’ is defined in r.1.03 of the Regulations and means an occupation that is specified in an instrument in writing (formerly described as a Gazette Notice) as a skilled occupation for which a number of points specified in the instrument are available. Regulation 1.03 also contains a definition of ‘relevant assessing authority’. It states that a ‘relevant assessing authority’ means a person or body specified under r.2.26B.
The criteria for a Subclass 880 visa are set out in Part 880 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
Relevantly to this matter, a primary criterion to be met at the time of decision is cl.880.222 which requires that the applicant has the ‘qualifying score’ when assessed under Subdivision B of Division 3 of Part 2 of the Act (ss.92-96 of the Act).
Sections 92 to 96 of the Act sets out a ‘points system’ under which applicants for particular kinds of visas may be given a score based on points for particular attributes, which is then compared to ‘pool’ and ‘pass’ marks which are set by the Minister from time to time. The prescribed attributes or ‘qualifications’ and points for each are set out in the Regulations: see r.2.26A and Schedule 6A to the Regulations. The qualifications or attributes and range of points available for each which are set out in Schedule 6A and are relevant to Subclass 880 are each item in Part 1, 2, 3, 4, 5, 6, 7, 8, and 10 of Schedule 6A: r.2.26A(2). These are as follows:
Skill qualifications 0-60 points
Age qualifications 0-30 points
Language skill qualifications 0-20 points
Employment experience qualifications 0-10 points
Spouse skill qualifications 0-5 points
Australian educational qualification 0-15 points
Skills targeting qualifications 0-20 points
Bonus points qualification 0-5 points
Additional points for regional Australia and
low-population growth metropolitan areas 0-5 points
If the applicant’s score is more than or equal to the pass mark, the applicant has received the ‘qualifying score’. If it is less than the pass mark, but greater than or equal to the pool mark, the application remains in a pool for up to 24 months, waiting for a lower pass mark: ss.95, 95A.
Section 350 of the Act requires that the Tribunal, in relation to a points assessment, must consider the Regulations and the pool and pass marks in force at the time of the delegate’s assessment (primary assessment) and as in force at the time of this assessment (review assessment) and apply whichever are more favourable to the applicant. The wording of the different ‘qualifications’ in Schedule 6A to the Regulations sets out the dates or periods on or over which certain facts or circumstances need to be established. For example, the age qualification is determined by the applicant’s age at the date of the visa application.”
The applicant has not suggested that this statement of the law is in any way incorrect.
The delegate when considering the applications, gave the principal applicant 105 points. He gave no points for spouse skill qualifications. When the Tribunal reassessed the applicant it gave him 110 points but again gave no points for spouse skill qualifications. If the Tribunal had given the applicant 5 points for the spouse skill qualifications he would have achieved 115 points which was the necessary number for the issue of the visa. The review of the Tribunal’s decision before this court concerned only the failure of the Tribunal to give any points in respect of spouse skill qualifications. These are given where the spouse of an applicant is at the time of the application under 45 years of age, has vocational English and has nominated a skilled occupation in her application and has been assessed by the relevant assessing authority for a skilled occupation as having suitable skills for that occupation and the spouse has at the time of the application been employed in the skilled occupation for (in this case) 24 months out of the 36 months immediately preceding the day of the application. If the spouse complies with all of these requirements the principal applicant is awarded 5 points on the points score.
Ms Biswas nominated office manager ASCO code 3291-11 as her skilled occupation. She provided evidence that she was employed by a Mr Roy, an advocate of the High Court of Calcutta from January 2000 until March 2004. Although Ms Biswas was qualified as a lawyer in India she claimed that she was employed by Mr Roy as an office manager which is a skills qualification that would entitle her spouse to skill points if the Tribunal had found that she was so employed for the requisite period of time. The Tribunal did not so find and it is the manner in which it came to that conclusion that forms the basis of the applicants’ claim that the Tribunal fell into jurisdictional error.
The Amended Application contained eight grounds. Grounds 1, 3, 5 and 8 were abandoned leaving grounds 2, 4, 6 and 7 but in fact the only ground that was seriously argued was that contained in ground 6:
“The Second Respondent made jurisdictional error in that it:
i. Failed to exercise jurisdiction; and/or
ii. Made error of law in relation to the construction of Item 6A 51.
Particulars
a) The jurisdictional task of the Second Respondent under Item 6A 51 was to consider whether in a relevant period, the wife of the Applicant had been employed in a skilled occupation. The Second Respondent misdirected itself by focusing on whether some of her duties corresponded with those of personal assistant.”
It is my belief that the applicant accepted that ground 6 encapsulates the essence of any jurisdictional errors alleged in the other grounds. I accept the submission of the respondent that most of the content of the other grounds consist of an attempt to obtain merits review of the decision itself.
In order to come to its conclusion the Tribunal heard evidence from Ms Biswas and from Mr Roy. It had received from Mr Roy a letter dated 14 August 2006 stating that Ms Biswas joined his practice initially as a legal secretary/paralegal and was later given a position as office manager. He then set out her duties under the heading “secretary/paralegal and office manager”. This is reproduced at [CB 296]. The Tribunal also had evidence of a site visit that had been made by the post in Calcutta to Mr Roy’s office and had written a letter to the principal applicant concerning his wife under s.359A of the Act. The letter clearly sets out matters of concern to the Tribunal and indicates the way in which the Tribunal was thinking about Ms Biswas’ employment. The relevant parts of the letter are set out below from [CB 288-291]:
“In regard to Mrs Santasree Sarkar Biswas’ occupation while employed by Mr Roy:
· On the visa application, in her resume and in Mr Roy’s letter of 1 June 2003, it is claimed that Mrs Santasree Sarkar Biswas was an office manager throughout her period of employment with Mr Roy.
· However, when the Department conducted a site visit on 31 January 2005, the daughter of Mr Roy is recorded as having advised that Mrs Santasree Sarkar Biswas worked for her father as a junior legal practitioner/lawyer on a part-time basis when she was a student and she changed to full-time employment after she graduated.
· In a statutory declaration dated 8 May 2006, Mrs Santasree Sarkar Biswas stated that she completed a 5 year Bachelor of Law in 2003, and that she worked for Mr Roy as an office manager and paralegal. She stated that she worked there until March 2004.
· In a letter dated 14 August 2006, Mr Roy writes that Mrs Biswas was first employed as secretary/paralegal and then as an office manager.
· At the hearing with the Tribunal, Mr Roy stated that Mrs Biswas was first employed as a student and after she graduated she was promoted to the position of office manager. He cannot be precise about the period during which the applicant was office manager but it was within the timeframe of 2002 to 2004, although she had unofficially performed the duties earlier. Mr Roy also stated that Mrs Biswas ceased to work for him in 2003 or 2004. The Tribunal notes that in her resume Mrs Biswas states that she completed her LLB in September 2003.
· At hearing with the Tribunal, Mrs Biswas also told the Tribunal that she was initially employed by Mr Roy as a secretary for 6 to 7 months and later she was employed as an office manager.
In regard to the duties of Mrs Santasree Sarkar Biswas while she was employed by Mr Roy, a letter dated 1 June 2003 from Mr Kaanti Bhusan Roy states:
This is to certify that [the spouse] … was serving under me as full time office manager for legal works from 02.01.2000 – 31.05.2003 while she was a student in the Morning College.
She was assigned to oversee day to day office functions including recording and managing office records, staff affairs, salary payments, purchase order and payments of other matters & staff training.
In the site visit dated 31 January 2005, Mr Roy’s daughter is recorded as having told Departmental officers that Mrs Santasree Sarkar Biswas’ duties included going to court and meeting clients and only 3 staff were employed by Mr Roy including Mrs Biswas.
However, at the hearing with the Tribunal held on 3 December 2007, Mrs Santasree Sarkar Biswas and Mr Roy gave oral evidence that Mrs Biswas first worked as a secretary/paralegal and then an office manager and the staff that Mrs Biswas rostered were other law students who performed clerical functions.
In a letter dated 14 August 2006, Mr Roy states that Mrs Santasree Sarkar Biswas joined his practice initially as a legal secretary/paralegal and was later given a position as Office Manager. Mr Roy set out Mrs Biswas’ duties under the headings Secretary/Paralegal and Office Manager. The letter states that as secretary/paralegal she had the following duties:
· Correspondence: draft and send letters to individuals, government offices, law firms, courts, banks etc.
· Preparing briefs, legal documents etc.
· Maintenance of Office Equipment: Operate, clean regularly and recommend to the supervisor maintenance needs for all office equipment (i.e., copier, folding machines, typewriters, computer, etc).
· Secretarial support: help with correspondence, telephoning, and any other tasks that might be done to free them as much as possible to do more important duties.
· Maintenance of office files: keep all files in an orderly manner and prepare filing system directions for other users, maintain records.
· Maintain petty cash.
· Inventory control for office supplies.
The letter further states that as the office manager Mrs Biswas’ duties were as follows:
· Oversee day-to-day office functions,
· Rostering staff,
· Liaise with other counterparts, offices, courts etc,
· Provide training to juniors, trainees
· Preparation of the annual report. Responsible for setting reasonable deadlines.
· Book keeping, maintains a completion systematic set of records of business transactions, oversee payroll etc.
· Balances books and prepares reports to show receipts, expenditures, accounts payable and various other items.
However, Mrs Santasree Sarkar Biswas gave oral evidence that she did not know how many clients Mr Roy had, that Mr Roy managed the client record system although Mrs Biswas monitored communication with clients by taking calls, attending meetings with clients that were held in the office and writing case notes, that the office had no computer or typewriter and word processing work was subcontracted to another business, that she paid the other staff who were all law students, by giving them envelopes with money, but the amount of pay was managed by Mr Roy and although she purchased some stationery and managed the office stock, she did not keep accounts books. Mr Roy gave oral evidence that there was no accounts books.
This information is relevant because if the Tribunal decides that Mrs Santasree Sarkar Biswas was employed by Mr Roy from 2 January 2000 to 31 May 2003, as stated in the visa application form, resume and letter dated 1 June 2003, and that she was employed for 20 hours per week as a secretary/paralegal either initially or throughout the period of employment or for only part of the working week of 20 hours per week, this may lead the Tribunal to decide that Mrs Santasree Sarkar Biswas was not employed as an office manager or in a skilled occupation for at least 24 months in the period 3 May 2001 to 3 May 2004 and that she does not meet the requirements of subparagraph 6A51(e)(iv)).
You are invited to give comments/respond to the above information in writing.
Invitation to provide information
You are also invited to provide the following additional information:
The Tribunal has taken into account the oral evidence that Mrs Santasree Sarkar Biswas and Mr Roy gave about Mrs Santasree Sarkar Biswas’ duties when she worked for Mr Roy and the Tribunal has also noted the documentary evidence in Mr Roy’s letters of 1 June 2003 and 14 August 2006. The Tribunal now invites you to provide further information in support of your claim that Mrs Santasree Sarkar Biswas performed the duties of Office Manager for a period of, or for periods totalling, at least 24 months in the 36 months immediately before the day on which the application was lodged.
The ASCO guide provides the following regarding the occupation of Office Manager.
3291-11 Office Manager
Organises and controls the activities of an office including administrative systems and office personnel.
Skill Level:
The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
Tasks Include:
· develops and maintains recording and information systems
· oversees and controls office functions
· arranges office accommodation
· liaises with other departments in the organisation
· ensures compliance with occupational health and safety regulations
· trains and supervises staff
· may deal with inquiries from outside the organisation, particularly complaints
· may deal with salary, termination and other employment matters
Your comments/response and your additional information should be received at the Tribunal by 9 January 2008.
Ms Biswas responded to the letter by the production of a statutory declaration [CB 268]:
I, SANTASREE SARKAR BISWAS, of 9/39 Francis Street, Darlinghurst, Housewife/Advocate in the State of New south Wales solemnly and sincerely declare as follows:
1. I admit that I had been unable to provide entire information to the satisfaction of the Presiding Member regarding my employment during the hearing. I say that I could not recall everything because considerable time has elapsed since I left the job and that I am now married and have a child. I was also distracted by my child as I was so conscious about my child not to make noise in the hearing room.
2. I also admit that the information provided by different sources to the Tribunal regarding my employment was inconsistent. If I had manufactured them, then I would have made them accurate and consistent. The inconsistencies were observed solely because there is no proper record keeping system in India as well as my employer’s age and my own state of mind.
3. I say that I have been unable to obtain any further evidence from India to substantiate my claims. Due to the time that has passed since I left India and that the closure of the business where I was employed, I could not get hold of any co-workers to obtain their Affidavits.
4. I again confirm that I worked for a Lawyer Kaanti Bhusan Ray as an Office Manager where I undertook duties of an office manager and paralegal, both. I worked for Kaanti Bhusan Ray until March 2004. When I left this job, I was also known as a Junior Lawyer because I was admitted as an Advocate in December 2003. This could be the reason as to why Mr Ray’s daughter told the officers that I was working as a junior lawyer.
5. I say that the job descriptions of an office manager in India and Australia may not be identical; nevertheless, most of the tasks performed by me as an office manager are similar.
6. I say that I was fully responsible to manage Mr Ray’s office as an office manager and confirm that the duties stated in the reference letter dated 14 August 2006 are genuine and true in every particular albeit myself and Mr Ray had been unable to confirm my responsibilities fluently during the hearing. As stated above, Mr Ray is an aged person whose memory is not very good and I suffered anxiety and nervousness.
AND I MAKE this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended as subject to the penalties provided by the Act for making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
SUBSCRIBED AND DECLARED at Parramatta
On this 17th day of January 2008
Before me:
…………………………….. ……………………………..
Solicitor Santasree Sarkar Biswas”
The Tribunal, after considering all the evidence, concluded that it was satisfied that Ms Biswas was employed at the practice of Mr Roy from January to March 2004 but:
“The Tribunal is not satisfied that the applicant’s spouse was employed as an office manager… The Tribunal accepts that some of the administrative tasks which the applicant’s spouse undertook may be similar to those outlined in the occupation of Office Manager but the Tribunal finds that the bulk of the tasks performed by the applicant’s spouse could be classified as secretarial or paralegal. Taking into account the evidence of Roy and the applicant’s spouse, and based on the other material before It, the Tribunal is satisfied that Mr Roy was a sole legal practitioner who used the services of a small number of part time law students of which the applicant’s spouse was one… The Tribunal has considered the evidence in the context of the information contained in the ASCO not only about individual occupations but also about occupation unit groups. The Tribunal is not satisfied that the spouse’s tasks and duties in her employment in Mr Roy’s practice most closely correspond to those listed in the occupation of office manager (ASCO Code 3291-11).”
The Tribunal had come to these conclusions expressed at [CB 297] after accepting that an office manager is not only a person who manages a large organisation but noted that Mr Roy’s business had no staff other than himself and the part time law students, no office equipment and all computing work was contracted out. There was a minimal record system and there was no bookkeeping system although it is accepted that the applicant managed the petty cash. The applicant had claimed that she was managing the payroll but the Tribunal found on the evidence that all she had done was to give the pay envelopes to the students after Mr Roy had decided what they were to be paid and placed the money in them. The Tribunal accepted Mr Roy’s evidence that no individual files were kept but individual briefs which included notes of conversation with clients and other documents were held by him. Mr Roy had stated that each person had their own responsibilities with regard to managing the briefs and that the applicant was a co-ordinator. The Tribunal concluded from that evidence that it was not satisfied that Ms Biswas had responsibility for managing the client file system if there was one. The Tribunal accepted that Ms Biswas was given responsibility for supervising training and rostering a small number of part time law students but was not satisfied that she had responsibility for bookkeeping or maintaining records of business transactions or balancing books because Mr Roy had given evidence that he did not have a bookkeeping system. Although Mr Roy’s evidence said that the applicant was responsible for producing an annual report Ms Biswas said in her evidence that there was no annual report:
“The Tribunal finds that the reference and oral evidence also support the view that the applicant’s spouse was employed to provide assistance on legal cases and that her work involved undertaking administrative and secretarial work.”
The Tribunal then proceeded to look at the ASCO groups, in particular that of secretaries and personal assistants and also law clerks. At [CB 298-299] it sets out the description of the Sub Major Group 51 Secretaries and Personal Assistants and at [CB 299]:
“The Tribunal is satisfied that the spouse was employed as a Personal Assistant for a period of at least 24 months out of the 36 months immediately before the day on which the application was made.”
As a personal assistant is not a skilled occupation for the purposes of this particular visa the Tribunal found that Ms Biswas was not employed in a skilled occupation for a period of or periods totalling at least 24 months in the period of 36 months immediately before the day on which the application was made and therefore did not meet the criteria found in paragraph 6A51(e) in force at the time of primary assessment.
The gravamen of the applicant’s complaint is that what the Tribunal did was to assess her against other non-qualifying occupations rather than considering only whether she had fulfilled the criteria for the complying occupation of office manager. The applicant argued that a person who undertakes the duties of an office manager may also undertake other duties such as those of a personal assistant or a law clerk but still qualify as an office manager. It was suggested that what the Tribunal did was to look for an occupation that Ms Biswas’ duties most closely resembled and place her in that category rather than looking at the duties which she undertook and assess them against the criteria for an office manager. In doing this the Tribunal made an error of law by misconstruing its obligations under the Act.
The question the Tribunal was required to answer was whether or not Ms Biswas had been employed as an office manager for the requisite period of time. It was certainly not required to answer a question as to whether she had been employed in any other occupation. This would only have been relevant if she had made a submission of that type to the Tribunal and the occupation was one that might have obtained an award of points for her husband. I would also accept that the appropriate way to go about making this decision is for the Tribunal to assess what Ms Biswas actually did against the criteria for an office manager.
I am satisfied that the Tribunal did assess Ms Biswas against the ASCO definition of an office manager which is set out in the s.359A letter at [CB 290]. It had these tasks in mind when it considered the evidence and found that Ms Biswas did not meet the criteria because her duties did not extend over all the tasks included in the ASCO guide and perhaps more particularly because many of the things that Mr Roy had said she did and which distinguished her as an office manager from merely a legal clerk or personal assistant she did not actually do because the systems did not exist in his very small office. The task of the Tribunal in these circumstances was articulated by Kiefel J in Shahid v Minister for Immigration [2004] FCA 1412 at [15]:
“I do not consider that one can conclude from the fact that the applicant was utilising some of the skills he had gained as a hotel or motel manager that he was employed in that capacity. Again, this is a question of fact. There is no error of law disclosed. In particular it is not shown that the Tribunal misunderstood the question posed for it. The applicant appeared to argue that the Tribunal should have approached the issue of his employment at the restaurant by asking itself: was the applicant, when employed at the restaurant, employed in tasks which a hotel or motel manager might ordinarily do? However that is not the question which the Tribunal was required to address. The question was whether he was in fact undertaking the work of a hotel or motel manager.
… In some cases it may be necessary for a decision-maker to undertake an assessment of the extent of the duties of the nominated occupation which are involved in the employment in question. It was sufficient for the Tribunal’s purposes in this case to observe that more is required of a hotel or motel manager, than a restaurant manager, in terms of the areas of operation they are required to manage, including that of accommodation.”
It seems to me that the Tribunal in the instant case did no more than the Tribunal did in Shahid. It looked at all the tasks nominated by the applicant as having been undertaken and supported by the evidence of Mr Roy. It concluded that whilst she may have undertaken some of the tasks that an office manager was required to undertake she did not undertake many others. It was for that reason it concluded she did not undertake the work of an office manager. It found the tasks she was really occupied in could best be described by utilising another category. The emphasis placed on seeking a category which more closely compared to what the evidence indicated Ms Biswas actually did was not necessary to the decision and was probably inserted in order to provide assistance to Ms Biswas in understanding the conclusions reached by the Tribunal. But it did not constitute the Tribunal misconstruing its obligations in the manner argued for by the applicant.
I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it reached its conclusions in this case and I dismiss the application. I order that the Applicants pay the First Respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 17 February 2009
0
1
2