Seema v Minister for Immigration
[2011] FMCA 454
•6 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEEMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 454 |
| MIGRATION – MRT decision – skilled independent visa – points for employment in nominated skilled occupation of ‘cook’ – identification of periods of employment – Tribunal not satisfied by applicant’s evidence – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), s.359A, Pt.2 Div.3 Subdiv.B Migration Regulations 1994 (Cth), regs.2.26AA, 2.26AA(6), Sch.2 items 885.221, 885.222, Sch.6B Pt.6B.5 item 6B51, Pt.6B.7 item 6B72 |
| Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 Parekh v Minister for Immigration [2007] FMCA 633 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 Shukla v Minister for Immigration & Anor [2010] FMCA 625 |
| First Applicant: | SEEMA |
| Second Applicant: | ARUN KUMAR |
| Third Applicant: | KHUSHI SANGRI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 28 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 6 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2011 |
REPRESENTATION
| Counsel for the Applicants: | First and Second Applicants in person |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 28 of 2011
| SEEMA |
First Applicant
| ARUN KUMAR |
Second Applicant
| KHUSHI SANGRI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 14 July 2008, Ms Seema, her husband, and their child, applied for visas under subclass 885, assisted by a registered migration agent. Only Ms Seema claimed to be able to satisfy the visa criteria as primary applicant, and the members of her family were unable to qualify if she did not. They now seek review of a Tribunal decision which affirmed a delegate’s refusal of the visas.
Subclass 885 visas are described as “skilled independent” visas, available for onshore applicants who have completed qualifications in Australia and have employment experience in a “skilled occupation” as defined in the Migration Act 1958 (Cth). Visa applicants must specify a “nominated skilled occupation”, and the attainment of skills suitable to that occupation is one criterion which is determined according to the opinions of a “relevant assessing authority” (see criterion 885.222 of Sch.2 of the Migration Regulations 1994 (Cth)). The concept of a “skilled occupation” is tied under the Migration Regulations to a classification system known as the “Australian Standard Classification of Occupations (ASCO) Second Edition”. I have explained this legal structure in previous judgments, and shall not repeat my explanation (see Shukla v Minister for Immigration & Anor [2010] FMCA 625 and Parekh v Minister for Immigration [2007] FMCA 633).
In the present case, Ms Seema identified as her “nominated occupation” on the “skilled occupations list”, the occupation of Cook, ASCO Code 4513‑11. The definition of cook in the ASCO Code is:
4513-11Cook
Prepares, seasons and cooks food in catering and dining establishments.
Skill Level:
The entry requirement for this occupation is an AQF Certificate III or higher qualification.
Tasks Include:
·examines food to ensure quality
·regulates temperatures of ovens, grills and other cooking equipment
·prepares and cooks food
·seasons food during cooking
·portions food, places it in dishes, adds gravies or sauces, and garnishes
·stores food in temperature controlled facilities
·may plan menus and estimate food requirements
·may prepare food to meet special dietary requirements
·may train other kitchen staff and apprentices
As well as establishing the possession of skills suitable for the nominated skilled occupation, primary applicants for subclass 885 visas must have the qualifying score when assessed under a “points test” under Subdiv.B of Div.3 of Pt.2 of the Migration Act (see criterion 885.221). It is unnecessary to set out the detailed provisions which allow the setting of a point system with scores for various attainments, so as to achieve pass marks or pool marks, which would either allow the visa to be granted or to be kept alive for a later year. Under the relevant statutory instruments, the pool mark and pass mark for subclass 885 visas was, in relation to Ms Seema’s application, 120 points.
Points were required to be distributed for the purposes of criterion 885.221 by reference to Sch.6B (see reg.2.26AA). When interpreting that schedule a definition of “employed” was adopted by reg.2.26AA(6) as meaning “engaged in an occupation for remuneration for at least 20 hours weekly”.
In her visa application, Ms Seema identified how she claimed to be able to achieve more than 120 points:
Part E – Points test
56Please indicate the points you are claiming for the following factors
Note: You should be aware that if, when your application is assessed, you are given an assessed points score lower than that you have claimed above then your application may not be successful.
It is not possible to add ‘primary applicant’ and ‘spouse/interdependent partner’ points together.
Points
Primary applicant
Spouse/
interdependent partner
Skill
60
Age
30
English language ability
15
Specific employment
Australian employment
10
Australian education
5
Occupation in demand/job offer
15
Designated language
5
Regional and low‑population growth Australia educational
Partner skill
State/Territory government nomination
Designated area sponsorship
Total points
140
As I shall explain, ultimately the Migration Review Tribunal accepted that there was evidence establishing the claimed points, except in relation to the claim for 10 points for “Australian employment” and 15 points in relation to “occupation in demand/job offer”.
In Ms Seema’s case, the achievement of points for these attributes was governed respectively by items 6B51 and 6B72 of Sch.6B of the Regulations:
Part 6B.5 Australian employment qualifications
Column 1 Column 2 Column 3 Item Qualification Number of points 6B51
The applicant has been employed in Australia, in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made
10
…
Part 6B.7 Occupation in demand qualifications
Column 1 Column 2 Column 3 Item Qualification Number of points …
6B72
The applicant:
(a) has nominated a migration occupation in demand in his or her application; and
(b) has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made
15
As can be seen, both of those items required Ms Seema to establish that she had been “employed” in her “nominated skilled occupation” of Cook ASCO Code 4513‑11, which was also an “occupation in demand”, for a period “totalling at least 12 months in the 48 months immediately before the day on which the application was made”.
Ms Seema’s visa application set out an employment history in relation to “past employment and work experience”:
31Past employment and work experience
Provide details of your past employment. List the most recent experience first.
Employer and city
Occupation/position
Period
MONTH
YEAR
T & M Laba Sarkis
Cook
FROM
Jun-2007
TO
12/2007
Flavour of North India
Cook
FROM
May-2006
TO
May-2007
Bankstown City Aged Care
Care Service Employee
FROM
Dec-2005
TO
May-2006
In relation to her employment with Flavour of North India, Ms Seema submitted to the Department and to the Tribunal a work reference and some pay records. She also submitted evidence indicating that she had achieved a Certificate III qualification for cook while she was holding that employment. The achievement of the qualification being shown in a certificate dated 23 May 2007, but the Tribunal accepted that the qualifying courses had been completed on 23 February 2007.
In relation to her employment by Mr Laba Sarkis, Ms Seema submitted a document signed by him, which said:
T and M is a mixed business located in The Rocks area which provides groceries and food of various kinds.
We certify that SEEMA of PANINIA
Worked as a Cook from 1-6-07 to 7-12-07
If any further information is required please do not hesitate to contact the writer on [mobile telephone number] or write to [post office box address].
Ms Seema also submitted a curriculum vitae which referred to her employment with Mr Laba Sarkis as being her most recent experience as a cook.
A delegate made a decision on 19 February 2009. The delegate was not satisfied that points should be awarded in relation to Australian employment qualifications nor occupation in demand qualifications. In relation to both of these matters the delegate gave the following assessment of the evidence which had been submitted:
Australian employment qualifications
…
You claim to have the following relevant Australian employment experience:
Employer: Flavour of North India
Position: cookPeriod of employment: May 2006 – May 2007
The minimum entry requirement for a cook, according to the Australian Standard Classification of Occupations (ASCO), is an AQF Certificate III or higher qualification. Other than those qualifications gained in Australia, I note that you do not have any other qualifications in cooking, nor do you have a significant work history in cooking. I am therefore not satisfied that any work experience gained prior to qualifying for your Certificate III in Hospitality from Sterling College was at an appropriately skilled level. You gained your Certificate III in Hospitality (Commercial Cookery) in May 2007. As your claimed work experience at Flavour of North India was prior to having qualified for a Certificate III in Hospitality (Commercial Cookery), I am not satisfied that this experience was at an adequately skilled level and therefore cannot count it toward Australian employment qualifications.
You also claim to have the following work experience gained after the award of a Certificate III:
Employer: T & M Laba Sarkis
Position: cookPeriod of employment: June 2007 – December 2007
Based on the evidence provided, I am not satisfied that you were employed as a cook with T & M Laba Sarkis between 1 June 2007 and 7 December 2007. Even if you were employed as a cook during this period, the total duration of employment is only 6 months and 1 week – an insufficient period for which to be awarded points for Australian work experience.
As you have not met the requirements for allocation of points for Australian employment, no points are awarded.
…
Occupation in Demand Qualifications
You claim to have the following relevant employment experience:
Employer: Flavour of North India
Position: cookPeriod of employment: May 2006 – May 2007
The minimum entry requirement for a cook, according to the Australian Standard Classification of Occupations (ASCO), is an AQF Certificate III or higher qualification. Other than those qualifications gained in Australia, I note that you do not have any other qualifications in cooking, nor do you have a significant work history in cooking. I am therefore not satisfied that any work experience gained prior to qualifying for your Certificate III in Hospitality from Sterling College was at an appropriately skilled level. You gained your Certificate III in Hospitality (Commercial Cookery) in May 2007. As your claimed work experience at Flavour of North India was prior to having qualified for a Certificate III in Hospitality (Commercial Cookery), I am not satisfied that this experience was at an adequately skilled level and therefore cannot count it toward MODL qualifications.
You also claim to have the following work experience gained after the award of a Certificate III:
Employer: T & M Laba Sarkis
Position: cookPeriod of employment: June 2007 – December 2007
Based on the evidence provided, I am not satisfied that you were employed as a cook with T & M Laba Sarkis between 1 June 2007 and 7 December 2007. Even if you were employed as a cook during this period, the total duration of employment is only 6 months and 1 week – an insufficient period for which to be awarded points for MODL qualifications. No points are awarded.
On appeal, Ms Seema was initially assisted by her previous migration agent, but later was represented by Mr Laba Sarkis. She submitted further material to corroborate employment by Mr Laba Sarkis, being a purported “payslip” which stated:
PAY SLIP
Contractor: Seema Kumar Date 14/4/08
ABN no 86 418 366 124
Classification Cook Period: 1 June 2007 to
7 December 2007
Superannuation fund n/a
Ordinary wages/hourly rate
No. of hours
@ (rate)
$
$
Overtime
No. of hours
@ (rate)
$0
Allowances
For cooking samples and containers provided on a weekly basis of 20 hours per week
grocery items to value of $260.00pw
$
Gross Wages
$
Less tax
$0
Less deductions
Purpose Details
$0
Purpose Details
$0
Net allowance of grocery goods in return:
$6,500 in goods
She also submitted copies of documents which suggested that she had some experience as a cook in India, before coming to Australia for her further studies.
She also submitted copies of documents purporting to show that, subsequent to her employment with Mr Laba Sarkis, she had been employed by an establishment known as “New Bombay Fusion” at West Pymble from 1 January 2008 until 25 August 2008 “on a student visa, with a work limitation of 20 hours per week as a cook”. In fact, the documents included purported copies of payslips, showing the payment of amounts at what appear to be two‑monthly intervals.
The Tribunal sent Ms Seema an invitation generally to present further material to support the establishment of the requisite points. It also invited her to a hearing on 17 August 2010. Ms Seema attended with her husband and Mr Laba Sarkis. The Tribunal sets out a description of the hearing in its statement of reasons, and I accept its description. It appears to me to be consistent with an unverified transcript of the hearing, which was tendered by the applicants.
According to the Tribunal, in the course of the hearing it discussed the documents showing some professional training by Ms Seema as a cook in an Indian hotel in 2002, pointing to some problems it saw with that documentation, and also concerns about a “high level of document fraud in India”.
The Tribunal also discussed the documentation newly submitted about the previously undisclosed employment with New Bombay Fusion:
40.The Tribunal referred to the letter that she had submitted from New Bombay Fusion which indicated that she had worked as a cook from 1 January 2008 until 25 August 2008. The Tribunal noted that it was concerned that the applicant had not included this claimed employment on her visa application. She had not submitted any evidence of this employment to the Department. The Tribunal asked her why she had not included any details of this employment at question 31 of the visa application. The Tribunal noted that the application was lodged in July 2008. The Tribunal found it very strange that she had not included this claimed past and current employment on her application form, at the time that she was turning her mind to her relevant experience as a cook. The applicant said that she had had difficulty getting the employer to write the reference. The Tribunal noted that she could have at least listed the details of this employment on the visa application, as she had done with her other claimed employment. She could have explained that a reference could be provided later on, if required. She had not included any reference to employment at the New Bombay Fusion on the application form, or to the Department. The Tribunal also explained that it was concerned about the appearance of the signature block on copy of the letter. The Tribunal explained that it was very concerned about the appearance of the pay slips that she had submitted purportedly from this restaurant. It appeared that some of the details did not fit properly on the page. There was a photocopy line below her name and address. The Tribunal also noted that it appeared that this restaurant had closed for business last year, so it would be difficult for the Tribunal to verify her employment there. The Tribunal noted that she may wish to strengthen her claim that she had worked at New Bombay Fusion by providing evidence such as her income‑tax assessment for the relevant time, or evidence of her REST superannuation statement indicated in the payslips. The Tribunal explained that although it had an open mind about her claims, it wanted her to be aware of its concerns in regards to her evidence. The Tribunal explained that it had already sent her a letter inviting her to provide further information about her satisfying the qualifying score. It would allow further time after the hearing for her to provide any other information which she considered could strengthen her claims in regard to her employment experience.
The Tribunal also discussed with Ms Seema her employment by Mr Laba Sarkis:
42.The Tribunal referred to the letter from T & M Laba Sarkis which stated that she had been employed as a cook from 1 June 2007 until 7 December 2007. The letter is typed and spaces are left for the name of the cook and the date that the cook worked for T & M Laba Sarkis to be completed. This letter is signed by Mr Laba Sarkis. The Tribunal said it thought it was very unusual that this letter which she used to support her claim of employment in her nominated skilled occupation was issued by the same person who was also her representative before the Tribunal. The Tribunal asked where the applicant had worked for T & M Laba Sarkis. She stated that she had worked at an office in Concord. The Tribunal asked how she had worked as a cook in an office. She said that she had worked at the back of it. She said that there were two or three cooks. The Tribunal asked whether she was remunerated for this work. She agreed that she had been. The Tribunal asked what her remuneration had been. The recording of the hearing indicates that the applicant had difficulty responding to this question. The Tribunal asked her why she was having difficulty. She said that it was because she did not understand what remuneration was. The Tribunal reminded her that the Tribunal had just discussed the meaning with her and she had just agreed that she was remunerated for her employment at T & M Laba Sarkis. The Tribunal noted that it had already explained that it meant that she had been paid for the employment. The applicant said that she had been paid in grocery goods. The Tribunal indicated that it found it unusual that she had been remunerated in this way. The applicant said that she did not wish to say anything further. The Tribunal noted that it also found it unusual that T & M Laba Sarkis had what appeared to be a standard reference template for statements about its employment of cooks, when there were only 2 or 3 cooks working. The applicant did not comment. The Tribunal indicated that it had concerns about the evidence in regard to her claimed employment by T & M Laba Sarkis. The Tribunal noted that she was welcome to submit any further evidence of relevant employment for which she had been remunerated, and the Tribunal would consider it. The applicant said that she did not wish to raise anything further in regard to this Part.
(emphasis in original)
The Tribunal also discussed another issue which had been decided adversely against the applicant by the delegate, which ultimately she was able to satisfy the Tribunal in relation to. This concerned the language in which she had gained her Indian qualifications.
At the end of the hearing, the Tribunal indicated that it would allow more time for further material “which she considered could strengthen her claims of employment experience”.
Following the hearing, Mr Laba Sarkis presented a submission and further documents on behalf of Ms Seema. These included a copy of an Australian Government Taxation Office notice of assessment for the year ended 30 June 2008, issued on 17 August 2010, which specified “your taxable income is $15881”, and then noted credits in relation to PAYG and other matters, and attached a refund cheque.
The Tribunal then wrote to the applicants on 20 August 2010, repeating its concern raised at the hearing:
·The Tribunal outlined its concerns about the claim by Ms Seema and the letter and the payslips that Ms Seema submitted from New Bombay Fusion. Please provide evidence to corroborate your (Ms Seema’s) claim of working there, for the period 1 January 2008 until (at least) 30 June 2008. (The ATO Notice of Assessments do not assist as they do not provide the name of the employer.) You may wish to provide the following, which would usually be considered corroborative evidence:
oEvidence from REST Superannuation that confirms your (Ms Seema’s) account with them for the period 1 January 2008 until (at least) 30 June 2008, which also indicates that your (Ms Seema’s) earnings for the period 1 January 2008 until (at least) 30 June 2008 from New Bombay Fusion were paid into your (Ms Seema’s) superannuation account (as is indicated on the payslips that were submitted to the Tribunal).
oEvidence from your (Ms Seema’s) bank account indicating deposits from New Bombay Fusion during the period from 1 January 2008 until (at least) 30 June 2008.
oYour (Ms Seema’s) group certificate from New Bombay Fusion for the financial year ending 30 June 2008; original not a copy.
oA copy of your (Ms Seema’s) completed Income Tax Assessment form submitted to the ATO for the financial year ending 30 June 2008.
In response to that letter, copies of two further documents were forwarded by Mr Laba Sarkis, being what was said to be “PAYG payment summary” and “individual tax return 1 July 2007 – 30 June 2008”. The former of those documents purports to be a group certificate dated 30 June 2008 issued by New Bombay Fusion, making gross payments of $8000 during the taxation year 2007 to 2008, with withheld tax of $504.
The purported “individual tax return” showed this employment and two other employments, but was a copy of a document which was undated and had no signatures of the taxpayer or her taxation agent. It showed a total taxable income of $24,278. The discrepancy with the gross income shown in the assessment issued on 17 August 2010 was not explained in any submission to the Tribunal. The difference appears to be the $8000, which was asserted to have been received as gross payments from New Bombay Fusion.
On 22 September 2010, the Tribunal wrote a further letter to the applicants, suggesting that it was not satisfied with the authenticity of the copy of the income tax return. It said:
The Australian Taxation Office (ATO) has informed the Tribunal that you are able to contact them by phone on 13 xx xx and request for a copy of your individual tax returns which you submitted to the ATO to be released to you.
You are invited to provide the following information in writing:
·Your full individual tax return documents stamped by the ATO which you submitted for the financial year ending 30 June 2008.
Extensions of time were granted for the submission of the further information, and ultimately Mr Laba Sarkis forwarded to the Tribunal on 17 November 2010 a copy of a document which he described as:
I am pleased to submit individual tax returns obtained from the ATO in support of the above application.
I draw your kind attention to page 2 which clearly indicates the payer’s Australian business number and tax withheld.
Should you need to clarify any matter please feel free to contact the Australian Taxation Office, telephone number 9xxxx xxxx and they will undoubtedly confirm that the applicant worked and met the tax requirements as a cook.
I hope that Presiding Member will now be in a position to finalise this case.
Thank you for your assistance.
However, the attached document did not have any authentication, whether from the Tax Office or a tax agent or otherwise, but appears to be an unauthenticated printout from a tax agent’s program for lodging online tax returns. It purports to be “individual tax return 2008 – tax agents”, and might show the date of printing as “12/11/2010”. It again showed a total income of $24,278, which appears to have been derived from including the claimed payment from New Bombay Fusion. No explanation was given to the Tribunal with the submission of this document, as to its discrepancy with the assessment issued on 17 August 2010, nor as to its relationship with the previously submitted document.
The Tribunal made a decision on 16 December 2010. In its statement of reasons, the Tribunal recited the relevant evidence and the course of the proceedings in front of it, including the post‑hearing correspondence. It addressed Ms Seema’s ability to achieve 120 points for the purposes of the points test under item 885.221. It agreed with the delegate, in not being persuaded that any points should be awarded for Australian employment qualifications and occupation in demand qualifications. Although the Tribunal gave an additional five points for designated language qualifications, it arrived at a total score of 115 points, which was insufficient to allow Ms Seema to qualify as primary applicant for the visa. This conclusion necessarily also led to the failure of the members of her family to qualify as secondary applicants.
The Tribunal reasoned in relation to Ms Seema’s claimed periods of employment, by not including her claimed period of employment in India, and by accepting only part of the period of Ms Seema’s employment at the Flavour of North India. It said that her employment could not be regarded as employment in the nominated skilled occupation, until she had achieved her Certificate III qualification on 23 February 2007. In this respect it reasoned:
70.The applicant claims to have been in paid employment as a cook at the Flavour of North India from 15 October 2006 until 10 May 2007. However, she did not complete her Certificate III in Hospitality (Commercial Cookery) until 23 February 2007. In MIAC v Kamruzzaman the Court held that determining whether an applicant’s employment fits into a particular ASCO classification, includes considering whether the applicant holds the qualification or experience prescribed for that occupation. The applicant sought to establish that she was a cook earlier than the date that she completed the Certificate III course. She claimed that she had completed six months of professional training as a cook at the Hotel Dhillon Residency. As noted to the applicant, the Tribunal has concerns about the document that she submitted purportedly from Hotel Dhillon Residency. However, given that she did not disclose this “qualification” on the visa application, and her oral evidence that she joined the classes as a hobby, the Tribunal does not accept that it was “professional training” that qualified her as a cook. The Tribunal finds that the applicant did not have qualifications as a cook before completing the Certificate III course in February 2007. On the basis of the letter from the Flavour of North India and the original pay slips submitted, the Tribunal accepts that the applicant was employed as a cook from 23 February 2007 until 10 May 2007.
(citation omitted) (emphasis in original)
In relation to the subsequent claimed employment by Mr Laba Sarkis, the Tribunal did not accept that she had established that she had worked in the skilled occupation of cook, applying the definition of “employed” which I have quoted above. It reasoned:
71.The applicant also claimed that she had been employed by T and M Laba Sarkis as a cook from 1 June 2007 to 7 December 2007. The Tribunal considers that it is not ideal the person who is her authorised recipient in the application for review is also providing evidence in support of her claimed employment. The “pay slip” submitted to the Tribunal in support of this employment gives no indication of the dates of employment, or the rate of pay. It indicates that she did not earn wages. Under “Allowances”, it records that “for cooking samples and containers provided on a weekly basis of 20 hours a week” the applicant was provided with “grocery items to the value of $260 a week”. The applicant’s oral evidence about this claimed work as a cook gave the Tribunal cause for concern. The Tribunal explained the definition of employed. The applicant said that she had been remunerated for her work for T and M Laba Sarkis but then had great difficulty explaining what her remuneration had been. After the hearing, her representative, Mr Laba Sarkis submitted that “it is unfortunate that [the applicant] was unable to understand the word ‘remuneration’”. The Tribunal considers this submission to be disingenuous. The issue was not her understanding of the word but her difficulty explaining what her remuneration had been. Further, the applicant did not declare any income from T and M Laba Sarkis in the 2007‑2008 income tax assessment that she recently submitted to the Tribunal. The Tribunal is not satisfied that the applicant was employed as a cook for T and M Laba Sarkis at any period during 1 June 2007 to 7 December 2007.
(emphasis in original)
Turning to the new claim of employment by the New Bombay Fusion, the Tribunal reasoned:
72.The applicant made a new claim during the process of review by the Tribunal. She claimed that she was employed as a casual cook from 1 January 2008 until 25 August 2008 at New Bombay Fusion. As pointed out to the applicant during the hearing, the Tribunal was very concerned about the veracity of this claim. First, although the applicant was apparently currently employed there at the time that she lodged her visa application, she did not include this claim in regard to her claimed employment. The Tribunal finds this very strange, given the significance of establishing relevant employment to obtain qualifying points for the visa. She did not include it on the visa application, or in her attached curriculum vitae. When the Tribunal raised this issue in the hearing, the applicant said that she did not include it because she did not know whether she could get the employer to write the reference. However, the Tribunal does not accept this explanation and does not find her claim credible. She could have listed this employment in the application form, and provided a reference later if she so wished, or the payslips which she presumably had if she had been employed there since January 2008, as she claims. The applicant submitted a letter purportedly from the Manager of the restaurant. However, as the Tribunal explained, as this restaurant had apparently closed for business the Tribunal would face difficulty verifying her employment. The Tribunal is very concerned about the appearance of the pay slips submitted purportedly from this restaurant. Some of the details did not fit properly on the page. There is a clear photocopy line below her name and address. The Tribunal requested originals of these pay slips. They were never provided. It also suggested on several occasions that the applicant could strengthen her claim of employment at New Bombay Fusion by providing her superannuation account statements (REST superannuation is indicated in the payslips), or providing bank account statements that indicate payments from New Bombay Fusion. These documents were not provided.
73.The applicant submitted her ATO income tax assessment for the financial year ending 30 June 2008. Although it has not been certified by the ATO, the Tribunal accepts that it is her Assessment. The applicant declares payments from three Payers. One of these Payers indicates an ABN that is the same ABN indicated on the payslips. The applicant declares that she earned $8000 from this payer. The Tribunal has carefully considered the evidence that has been submitted. The Tribunal accepts that the applicant has had some sort of relationship with New Bombay Fusion. However, given all the concerns outlined above it is not satisfied that the applicant was employed as a cook from 1 January 2008 until 25 August 2008 at New Bombay Fusion.
The Tribunal concluded in relation to both of the critical items in Sch.6B:
74.As the applicant has not satisfied the Tribunal that she was employed as a cook (or a closely related skilled occupation) for a period of totalling at least 12 months in the 48 months immediately before the day on which her application was lodged, she is not entitled to any points under Part 6B.5.
It reached the same conclusion in relation to Part 6B.7.
The applicants now apply to the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide the factual matters addressed by the Tribunal in relation to satisfaction of the critical items in Sch.6B.
The applicant’s original application has as its grounds of application:
1.The tribunal ignored important information
2.The tribunal misunderstood the skills & work
3.The tribunal misapplied the law
These have been given some attempted substance in an amended application. It has the following grounds and particulars:
1.The Tribunal excluded from its consideration relevant material
Particulars
a.The Tribunal wrongfully disregarded the applicant’s employment as a cook in the Flavour of North India between 15 October 2006 and 22 February 2007 in circumstances where the employer had advised that the applicant’s duties in that period of time were the same as they were between 23 February 2007 and 10 May 2007 (see CB 35).
b.The Tribunal wrongfully disregarded the applicant’s employment at New Bombay Fusion between 1 January 2008 and 14 July 2008 in circumstances where that employment had been verified by a letter from her employer (CB 135) and payslips (CB 141‑147) and the applicant’s tax return as filed with the Australian Taxation Office (which was accepted as genuine) (CB 212).
2.The Tribunal’s decision to disregard the applicant’s employment at New Bombay Fusion between 1 January 2008 and 14 July 2008 was irrational as:
a.the ABN in the payslips – ABN 32 385 052 984 matched the ABN of the employer in the tax return (CB 212)
b.the amount declared on the tax return under the heading “Salary and Wages – your main salary and wage occupation” as earned ($8,000) matched 25 weeks of employment for 20 hours a week at $320 per week as shown on the payslips
c.notwithstanding this evidence the Tribunal concluded that the applicant’s relationship with the New Bombay Fusion restaurant was not an employment relationship
3.There is a reasonable apprehension that the Tribunal was biased
Particulars
The applicant gave the Tribunal her undated tax return and PAYG summary to corroborate her evidence concerning her employment at New Bombay Fusion. The Tribunal then requested that the applicant contact the Tax office to obtain a copy of the return as lodged. This was supplied and it powerfully corroborated the applicant’s evidence as explained in ground 2. The Tribunal did not accept this corroboration because it reasoned that the applicant had some sort of relationship other than employment with New Bombay Fusion. In so reasoning the Tribunal displayed a closed mind incapable of persuasion.
Further arguments were presented orally today.
In relation to Ground 1, it is clear that the Tribunal was aware, and in my opinion took into account, all the evidence which had been submitted by the applicant as to her employment at the Flavour of North India restaurant and at the New Bombay Fusion restaurant. The assertion of “wrongfully disregarding” that evidence therefore has to be understood only as an argument with the merits of the Tribunal’s conclusion about that evidence. However, in my opinion the Tribunal’s reasoning was reasonably open to it, in relation to both employments, on the evidence which was before it.
As I understand the argument as it was developed today orally, the applicants argue that the Tribunal wrongly disregarded the evidence of employment at the Flavour of North India prior to February 2007, and argue that it had made errors of law when doing that.
The Tribunal’s essential reasoning was that the classification of her employment by reference to ASCO 4513‑11 should give emphasis to the “skill level” specified in that classification. The skill level included an “entry requirement” being the Certificate III or higher qualification in cookery. The Tribunal therefore was not persuaded that Ms Seema’s employment at the Flavour of North India could be classified as a “cook” under ASCO, in relation to any period prior to the achievement of that entry requirement for that occupation.
In my opinion, that reasoning by the Tribunal discloses no error of law, whether as to the effect of the Migration Regulations, or the proper application of the ASCO Code classification in relation to the matter before it. As previous decisions in relation to other occupations under the ASCO Code have pointed out, the process of classification of an employment involves issues of fact in which, depending on the circumstances and the contents of the definitions, differing emphasis can be given to skill levels and work tasks in relation to employment (see Shukla (supra), and Greenwood J’s reasoning in Minister for Immigration & Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550). In my opinion, in the present case, it was open to the Tribunal, and indeed the Tribunal may have been obliged, to give emphasis to the acquisition of the Certificate III qualification as a prerequisite level of skill, when deciding at what point of time Ms Seema’s employment as a cook became employment in the nominated skilled occupation.
The applicants today submitted that Ms Seema’s earlier employment, both in India and at the Flavour of North India, must have been taken into account by Trades Recognition Australia when assessing suitability of Ms Seema’s employment history and qualifications for the purposes of a “skills assessment”, and that the Tribunal failed to give weight to the TRA assessment. However, in my opinion that assessment was plainly directed at a different criterion, and only at the point of time when TRA made its decision. It did not provide evidence whether earlier periods of employment as a cook, whether in the course of training or otherwise, could be characterised as employment “in the applicant’s nominated skilled occupation”.
Another argument which was presented today, as I understood it, suggested that the Tribunal erroneously followed policy rather than the effect of the regulations, when applying the February 2007 starting point for the relevant period of employment at Flavour of North India. In this respect, I was referred to something that the Tribunal said in the course of the hearing. However, I am unable to identify in this argument any ground for finding legal or jurisdictional error in the Tribunal’s assessment of the evidence concerning that part of Ms Seema’s work history.
Another argument today, both in relation to this part of the Tribunal’s reasoning and perhaps other parts, suggested that Ms Seema and her husband had been misled by statements on the Department of Immigration website concerning qualification for this visa. There is no evidence supporting the factual basis for this submission. In any event, even if a misleading statement were made, it could not tie the hands of the Tribunal in relation to its duty to make a decision on the evidence before it which applied the Migration Regulations.
In my opinion, the applicants have failed to identify any legal error or error of fact affecting this part of its reasoning.
In relation to Grounds 1b and 2, submissions were made today that the Tribunal’s reasoning concerning Ms Seema’s suggested employment at the New Bombay Fusion either disregarded evidence or treated evidence irrationally. However, plainly, in my opinion the Tribunal did not disregard any of the documentary and oral evidence concerning the claimed employment at the New Bombay Fusion from January 2008. There were, in my opinion, good reasons for the Tribunal to examine that documentation and the claims carefully, and even with some scepticism, given the omission from the visa application of this part of the claimed work history in circumstances where its relevance should have been immediately apparent. Moreover, the tendered purported documentation had difficulties, including the tax assessment and tax return documentation which I have described above. The Tribunal’s reasoning about the documentation in paragraph 73, which I have considered above, took a cautious approach to that evidence. In my opinion, it was rational and open to the Tribunal on the evidence before it not to be satisfied that Ms Seema had been “employed” at New Bombay Fusion, within the definition of that word under the Regulations. Ms Seema did not submit to the Tribunal evidence which could be regarded as factually conclusive in relation to all elements of the definition.
The argument in relation to bias under Ground 3 was not developed in oral submissions, and I can find no evidence of a “closed mind” by the Tribunal before it reached its final decision. There is abundant authority that such a contention needs to be properly established, and is not ordinarily supported merely by the fact that the Tribunal’s ultimate reasoning did not accept the case presented to it (cf. Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [18]).
There is nothing pointed to in the transcript of the Tribunal’s hearing to suggest that it approached the matter with a closed mind. Indeed, it is very clear to me that the Tribunal went to great lengths, both during the hearing and in the correspondence subsequent to the hearing, to draw the applicants’ attention to the need for them to present as much reliable corroboration as possible in relation to the employments of concern, both in relation to Ms Seema’s employment by Mr Laba Sarkis, and also her employment at New Bombay Fusion which had been omitted from the visa application.
It was submitted in oral evidence that the Tribunal should have written a further letter before making its decision, inviting further submissions and documentation addressing the weaknesses in the documentation previously submitted on behalf of the applicants. However, the Tribunal was under no duty to do that. This is certainly not one of the exceptional cases where obligations to inquire further were imposed on the Tribunal. The situation therefore was that there was no general duty imposed on the Tribunal to inquire (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 at [1], and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1] and [22]).
The Tribunal certainly had no obligation further to expose its possible reasoning processes in relation to the documentation which had been submitted. Such an obligation is not encompassed within the procedures required under s.359A.
In my opinion, there was nothing unfair in the circumstances about the Tribunal proceeding to make a decision in a state of dissatisfaction with the documentation which had been submitted, at least in so far as it was submitted to prove that Ms Seema had been “employed” as a cook from 1 January 2008 in the skilled occupation.
I do not find in the circumstances of the correspondence, the Tribunal’s reasoning about it, or the other evidence presented, any evidence suggestive of a closed mind which might satisfy the principles in relation to an apprehended bias referred to by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425.
Reviewing the matters which were submitted before me today by Ms Seema and her husband, I have addressed all the points which could be given relevance to a head of jurisdictional error above. Otherwise, in my opinion their oral and written submissions only invited the Court itself to address the merits of the matter.
This included an invitation to the Court to receive additional evidence explaining, for example, the discrepancies between the submitted copies of tax returns and the assessment issued by the Taxation Office on 17 August 2010. In this respect, it was suggested that the tax returns sought an amended assessment based on the previously omitted employment. However, no evidence to this effect had been submitted to the Tribunal, and it is not the Court’s task itself to decide the matter.
Taking into account all that has been submitted to me, I am unpersuaded that the Tribunal’s reasoning is affected by any jurisdictional error. The application should therefore be dismissed on that ground.
I note that counsel for the Minister submitted, in the alternative, that if the Tribunal’s reasoning concerning the employment at New Bombay Fusion disclosed jurisdictional error, but that no other error affected the Tribunal’s decision, then a remitter of the matter would be futile, since the applicants could not establish the requisite points merely from the remaining relevant periods of employment. My reasoning above means that I do not need to address that submission.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 29 June 2011
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