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Biswas v Minister for Immigration & Anor [2009] FMCA 95 (17 February 2009)

Last Updated: 19 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BISWAS v MINISTER FOR IMMIGRATION & ANOR

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.


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

(1) Application dismissed.
(2) 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

  1. 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 applicant has not suggested that this statement of the law is in any way incorrect.

  1. 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.
  2. 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.
  3. 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:
  4. 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.
  5. 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]:

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:
Your comments/response and your additional information should be received at the Tribunal by 9 January 2008.
  1. Ms Biswas responded to the letter by the production of a statutory declaration [CB 268]:
  2. 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:
  3. 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:
  4. 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]:

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.

  1. 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.
  2. 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.
  3. 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]:
  4. 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.
  5. 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

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