FEDERAL COURT OF AUSTRALIA

Seema v Minister for Immigration and Citizenship [2012] FCA 257

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs in the amount of $4,454.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellants are citizens of India. On 14 July 2008, the first appellant (the appellant) lodged, with the assistance of a migration agent, an application for a Skilled (Residence) (Class VB) visa (Subclass 885). The appellant nominated her skilled occupation as that of a Cook, ASCO Code 4513-11. The reference to “ASCO” refers to a classification system provided for in the Migration Regulations 1994 (Cth) (the Regulations), which will be discussed later in these reasons. The second and third appellants applied for visas as members of the appellant’s family unit.

2    The occupation of “Cook” is described by ASCO Code 4513-11 as follows:

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.

3    In her visa application, the appellant claimed she had obtained a Bachelor of Arts and Master of Arts in India. The appellant also claimed that she had been employed as a cook by two employers in Australia during the period May 2006 to December 2007. The first employer was Flavour of North India restaurant for the period May 2006 to May 2007, and the second was T & M Laba Sarkis for the period June 2007 to December 2007.

4    Further, the appellant claimed that she had obtained a Certificate III in Hospitality (Commercial Cookery) from Sterling College in Sydney. The course work for the Certificate III was completed on 23 February 2007, and the Certificate III was awarded in May 2007. This qualification satisfied the Australian Qualifications Framework Certificate III standard, referred to as the entry level requirement in ASCO Code 4513-11.

5    Applications for Subclass 885 visas are assessed under a points system. Under the system, visa applicants are given an assessed score based on the prescribed number of points for particular criteria, such as occupation, age, relevant Australian experience and English language qualifications. Under the points system applicable to the appellant, the appellant was required to obtain a total of 120 points.

6    On 19 February 2009, the delegate of the first respondent awarded the appellant a total of 110 points and refused the visa application.

7    The appellant then applied to the Migration Review Tribunal (the Tribunal) for a review of the delegate’s decision. The Tribunal awarded the appellant 115 points, which fell five points below the qualifying number of points, and, on 16 December 2010, affirmed the delegate’s decision not to grant the visa.

8    The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. On 6 June 2011, the Federal Magistrates Court dismissed the appellant’s application for judicial review.

9    On 23 June 2011, the appellant appealed to this Court from the decision of the Federal Magistrates Court.

the delegate

10    The issues in this appeal arose from the manner in which the delegate and the Tribunal dealt with the assessment of the appellant’s application in respect of two of the categories for which points were available to be awarded. The first category was Australian employment, in respect of which 10 points were available to be awarded; and the second category was migration occupation in demand list (MODL), in respect of which 15 points were available to be awarded. The appellant claimed the available points in respect of each of these categories. However, the delegate declined to award any points in respect of each of these claims.

11    The points in the Australian employment category are awarded to persons who have been employed in Australia in their nominated skilled occupation or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the application date.

12    The appellant claimed to have gained the relevant Australian employment experience while working for an Indian restaurant, Flavour of North India, from May 2006 until May 2007. However, the delegate disregarded this work experience on the basis that it was “pre-qualification” work experience. The delegate stated in her reasons:

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.

13    The appellant had, also, claimed that she had work experience as a cook which was gained at T & M Laba Sarkis between June 2007 and December 2007; that is, after the award of the Certificate III in Hospitality. However, the delegate was not satisfied, on the basis of the evidence provided by the appellant, that the appellant was employed as a cook during this period. The delegate found that, in any event, even if it was accepted that the appellant worked as a cook for six months after she gained her qualification as a cook, this was an insufficient period of time to be granted points for Australian employment.

14    The points available under the category MODL are awarded if the skilled occupation was listed on the MODL and the applicant has been employed in that skilled occupation (or a closely related skilled occupation) for at least 12 months in the 48 months immediately preceding the application date. It was accepted that the occupation of cook was listed on the MODL. However, for the same reasons that the delegate rejected the appellant’s claim for points in the Australian employment category, the delegate was not satisfied that the appellant met the requirement of having been employed in a MODL skilled occupation (or a closely related skilled occupation) for at least 12 months in the 48 months immediately preceding the application date.

the tribunal

15    The appellant made two additional claims before the Tribunal. The first additional claim was that she obtained six months professional training as a cook at Hotel Dhillon Residency in India before coming to Australia.

16    The appellant’s second additional claim was that she had been employed at another Indian restaurant known as New Bombay Fusion at West Pymble from 1 January 2008 to 25 August 2008 – being a period after the appellant had completed her Certificate III qualification. In support of her claims to have been employed by New Bombay Fusion, the appellant provided documents which purported to be certified copies of payslips from New Bombay Fusion, and a letter, also, purporting to be from New Bombay Fusion, describing the functions performed by the appellant.

17    On 17 August 2010, the appellant attended a Tribunal hearing to give evidence and present argument. Mr Laba Sarkis attended as the appellant’s representative rather than as a witness, in regard to the claimed employment of the appellant.

18    The Tribunal expressed concerns regarding the appellant’s claim to have been employed by New Bombay Fusion, not having been made earlier, and about the form of the evidence comprising the payslips.

19    On the day after the hearing, the appellant’s migration agent in response to the Tribunal’s invitation to provide further documentary evidence in support of the appellant’s claim, provided to the Tribunal copies of the appellant’s notices of assessment issued by the Australian Taxation Office for the years ending 30 June 2007, 30 June 2008 and 30 June 2009.

20    On 20 August 2010, the Tribunal wrote to the appellant’s migration agent stating that the Tribunal had concerns regarding the appellant’s claim to have been employed as a cook by New Bombay Fusion and the documentation submitted in support of that claim. The Tribunal stated:

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:

▫    Evidence 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 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).

▫    Evidence 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.

▫    Your (Ms Seema’s) group certificate from New Bombay Fusion for the financial year ending 30 June 2008; original not a copy.

▫    A copy of your (Ms Seema’s) completed Income Tax Assessment form submitted to the ATO for the financial year ending 30 June 2008.

21    In response to that letter, the appellant’s agent provided a copy of a PAYG Payment Summary for the year ending 30 June 2008, demonstrating a payment of $8,000 and recording the name of the payer as New Bombay Fusion. The appellant’s agent, also, provided a copy of what purported to be the appellant’s income tax return for the year ending 30 June 2008 which, also, reflected the information contained in the PAYG Payment Summary. However, the appellant’s agent did not provide any of the other documents referred to in the Tribunal’s letter.

22    On 22 September 2010, the Tribunal again wrote to the appellant stating:

The Australian Taxation Office (ATO) has informed the Tribunal that you are able to contact them by phone on…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.

23    After having obtained an extension of time to submit the individual tax return, the appellant’s agent submitted on 15 November 2010, what appeared to be the appellant’s taxation return for the year ending 30 June 2008. That document included the following statement under the heading “INCOME”:

[1]    Salary or wages

Your main salary and wage occupation

COOK NEC

Occupation Code _ X 4513.

24    Beneath that notation was included, adjacent to the ABN for New Bombay Fusion, the payment made and tax withheld, reflected in the appellant’s PAYG Payment Summary previously sent to the Tribunal.

25    On 16 December 2010, the Tribunal published its decision affirming the decision of the delegate to refuse the appellant’s visa application. As to the appellant’s claim for points in relation to the Australian employment category, the Tribunal did not accept that the appellant was entitled to count the employment with Flavour of North India, undertaken prior to the completion of her Certificate III. The Tribunal found that the appellant had completed the Certificate III course on 23 February 2007, and that it was only thereafter that the appellant’s employment was qualified to be treated as being in a “skilled occupation” for the purposes of the Australian employment and MODL categories. It followed that only the period from 23 February 2007 to 10 May 2007 of her employment at Flavour of North India counted towards satisfaction of the 12 month employment requirement, in those categories.

26    The Tribunal did not accept that the appellant had been employed as a cook by T & M Laba Sarkis as she had claimed. The Tribunal said that the evidence in support of the claim to have been employed as a cook by T & M Laba Sarkis was not satisfactory. The Tribunal referred to the fact that the appellant had said during the hearing, that she had been employed in an office at the Concord premises along with two or three other cooks, and was, also, unable to give a satisfactory explanation as to how she had been remunerated. Further, the Tribunal observed that T & M Laba Sarkis appeared to have a template for the giving of references in relation to the employment of cooks, and the existence of such a template document when there were only two or three cooks employed, appeared to the Tribunal to be unusual.

27    The Tribunal, also, commented adversely on the fact that Mr Laba Sarkis was, also, the person who was acting as the appellant’s migration agent.

28    The Tribunal then dealt with the appellant’s claim to have been employed as a casual cook at the New Bombay Fusion. The Tribunal said at [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.

29    At [73], the Tribunal went on to say:

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.

30    The Tribunal affirmed the decision of the delegate.

the federal magistrates court

31    On 10 January 2011, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The appellants relied on the following grounds:

1.    The Tribunal excluded from its consideration relevant material namely; the appellant’s employment at Flavour of North India and New Bombay Fusion.

2.    The Tribunal’s decision to disregard that employment was irrational in view of the evidence.

3.    There is a reasonable apprehension that the Tribunal was biased.

32    The Federal Magistrate found that the Tribunal did not fall into jurisdictional error by declining to have regard to the employment undertaken by the appellant at Flavour of North India prior to 23 February 2007. The Federal Magistrate held that it was open to the Tribunal to find that the appellant was not employed in a skilled occupation until such time as she had obtained her Certificate III qualification.

33    The Federal Magistrate, also, found that the Tribunal had not acted irrationally in relation to the way in which it had dealt with the appellant’s evidence as to her employment with New Bombay Fusion. The Federal Magistrate said:

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.

34    The Federal Magistrate, also, rejected the appellant’s contention that the Tribunal had conducted itself in a manner such as to manifest apprehended bias. The Federal Magistrate said that he did not find any evidence to support the allegation of apprehended bias.

the appeal

35    The appellant relied upon an amended notice of appeal. This notice of appeal comprised the following grounds:

1.    The Federal Magistrate erred in finding that it was open to the MRT to not consider the first appellant’s employment prior to 23 February 2007 as employment as a cook.

2.    The Federal Magistrate erred in finding that it was open to the MRT on the evidence accepted by it to not find that the first appellant was in an employment relationship with the New Bombay Fusion in the 2007/2008 tax year and that it paid her salary and wages for her occupation as a cook.

3.    The Federal Magistrate erred in finding that the appellants had to establish that the MRT had a closed mind.

4.    The Federal Magistrate erred in not concluding that the conduct of the MRT in this case gave rise to an apprehension of bias.

Ground 1

36    The appellant contended that the Federal Magistrate had erred in the construction of the regulations applying to the allocation of points in respect of the Australian employment and the MODL categories in the points test.

37    Clause 885.221 of Sch 2 of the Regulations applied in relation to the visa applied for by the appellant. That clause provided for a requirement that the visa applicant had, at the time of the decision, the qualifying score when assessed in relation to the visa sought under Subdiv B of Div 3 of Pt 2 of the Migration Act 1958 (Cth). That is a reference to the points system.

38    The regulations in relation to the points system which applied to the appellant’s visa application are set out in Sch 6B of the Regulations. Item 6B51 specified the requirements for the 10 points under the category Australian employment qualifications as follows:

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 in which the application was made.

39    The term “skilled occupation” was defined in reg 1.15I, which relevantly provided:

1.15I    Skilled occupation

(1)    A skilled occupation, in relation to a person, means an occupation of a kind:

(a)    that is specified by the Minister in an instrument in writing to be a skilled occupation; and

(b)    if a number of points are specified in the instrument as being available – for which the number of points are available; and

(c)    that is applicable to the person in accordance with the specification of the occupation.

(2)    Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:

(a)    that an occupation is a skilled occupation for a class of persons;

(b)    that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.

(Original emphasis.)

40    The legislative instrument referred to in reg 1.15I is Legislative Instrument IMMI 10/026. Schedule 1 of the legislative instrument lists in a column a large number of different occupations. Adjacent to the column listing each occupation, is a column headed “ASCO CODE”, and, relevantly, another column headed “POINTS”. Thus, in respect of the occupation of “Cook”, the following appears:

41    Schedule 4 of the legislative instrument states that “ASCO” means the Australian Standard Classification of Occupations, published by the Australian Bureau of Statistics on 31 July 1997.

42    The appellant contended that the Federal Magistrate erred in failing to find that the Tribunal had misconstrued Item 6B51 by having regard to whether the appellant’s employment had occurred before or after the completion of the appellant’s Certificate III cookery qualification.

43    The appellant contended that the satisfaction of the Australian employment category requirement of the points test described in Item 6B51, depended only on “employment” in the skilled occupation for the requisite period. The regulation required no more, said the appellant, than that the employment be in one of the occupations listed in Sch 1 of the legislative instrument. The appellant contended that Item 6B51 did not, also, import the other conditions identified in the ASCO classification document in relation to each occupation. Therefore, said the appellant, Item 6B51 did not impose the restriction of having first to obtain the AQF Certificate III referred to in the ASCO classification system, before the work carried out in the skilled occupation could count under Item 6B51.

44    In my view, the appellant’s contention cannot be accepted. The ASCO Code which is referred to in Sch 1 of the legislative instrument, has to be given effect. By referring in Sch 1, to the specific ASCO Code in relation to each of the named occupations, Parliament intended, in my view, to import the defining criteria described in the applicable ASCO classification, as the means to assess whether the visa applicant’s nominated occupation qualified as a “skilled occupation” for the purpose of the application of the Migration Act and the Regulations. One of the defining attributes specified in the applicable ASCO Code for each occupation, was a “skill level” which described the entry level educational qualification and/or experience level for that “skilled occupation”. In the absence of the defining criteria specification for each occupation which is to be found in the ASCO classification document, the description of each of the occupations which appears in Sch 1, would be at such a high level of generality as to be of no utility to decision-makers.

45    In the case of Minister for Immigration and Citizenship v Kamruzzaman (2009) 112 ALD 550, Greenwood J had regard to the status of the information referred to in the ASCO classification system under the heading “skill level”. At [63]-[64], Greenwood J observed:

The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation. Instead, it contains information as to the qualifications required for entry to that occupation. The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and/or training, and previous experience.

In order to determine whether an applicant’s employment fits into a particular ASCO classification, a decision-maker is required to consider all of the details set out in that classification. However, in making such a decision, the skills that are to be considered are those set out in the “Skill Level” section of the classification to which the applicant’s position is being compared. That is, the decision requires a consideration of whether the applicant holds the qualifications or experience prescribed for that occupation.

46    In my view, Greenwood J’s observations are germane to this question. The decision-maker is required, in determining whether the visa applicant has been employed in a specific nominated skilled occupation, to determine whether the visa applicant possessed the “skill level” nominated by the ASCO classification system for that occupation. In some instances, the “skill level” qualifying the applicant for entry into that “skilled occupation”, may be obtained by the possession of a nominated educational qualification, in other circumstances, it may be obtained by having the requisite nominated experience, or, in some circumstances, both.

47    It follows that, in my view, the Federal Magistrate did not err in upholding the Tribunal’s finding that only employment undertaken after the appellant had completed the Certificate III course qualified as employment in a “skilled occupation” as a cook for the purpose of earning points under the Australian employment and MODL categories of the points test.

Ground 2

48    By this ground, the appellant complained that the Federal Magistrate erred in failing to hold that it was not open to the Tribunal to find that it was not satisfied that the appellant was employed as a cook by New Bombay Fusion from 1 January 2008 until 25 August 2008, notwithstanding that the Tribunal accepted that the appellant had some relationship with New Bombay Fusion.

49    The appellant contended that the finding that the appellant had a relationship with New Bombay Fusion other than as an employed cook, was not rationally open to the Tribunal. This is because, said the appellant, the Tribunal accepted that the individual tax return submitted to the Tribunal on 15 November 2010, was the appellant’s. Further, the tax return recorded the appellant’s main occupation as “cook” and the tax return recorded the payment of $8,000 from New Bombay Fusion as a source of her income. This information, said the appellant, was, also, consistent with the information in the copy payslips.

50    The only inference rationally available from the accepted evidence, said the appellant, was that the appellant had been employed as a cook by New Bombay Fusion. The Federal Magistrate erred in failing so to find, said the appellant.

51    There is much to be said for the appellant’s submission, arising particularly, as it does, from the fact that the Tribunal stated that it accepted that the income tax return was the appellant’s return, but did not then accept that the appellant was employed as a cook by one of the employers whose ABN appears in the income tax return. However, having given the matter earnest consideration, I have come to the view that the Federal Magistrate did not err in concluding that it was open to the Tribunal not to be satisfied that the appellant was employed as a cook by New Bombay Fusion from 1 January 2008 until 25 August 2008.

52    In my view, on a proper analysis, the essence of the Tribunal’s reasoning is comprised by its finding in [72] of its reasons, that it did not find the appellant’s claim to have been employed by New Bombay Fusion as a cook, during the relevant period, credible. The Tribunal gave its reasons for making this finding. These reasons are, in essence, that it did not accept that the appellant would not have referred to the employment as a cook with New Bombay Fusion in her initial application, if it had happened. This is because she would have been engaged in that employment at the time of the making of the application, and that employment was relevant to establishing her claim. The Tribunal, also, referred to its scepticism as to the authenticity of the copy payslips purporting to be from New Bombay Fusion. Further, the Tribunal referred to the fact that the Tribunal had invited the appellant to provide the Tribunal with original payslips and other documents such as bank statements and superannuation account statements, which would support the claim, but that the original payslips and other documents had not been provided. In my view, it was open to the Tribunal to come to the view, on these grounds, that the claim was not credible.

53    In light of its finding rejecting the appellant’s claim on credibility grounds, the Tribunal’s observations in respect of the appellant’s tax return, although perhaps artlessly expressed, amount, in effect, to a finding that little, if any, weight was to be accorded to the tax return and other documents supplied as corroborative of the claim to have been employed as a cook by New Bombay Fusion.

54    In the final analysis, therefore, the effect of the Tribunal’s reasoning was to accord the tax return and other documents provided, little weight in proving the fact in issue; such that the weight attached to the tax return and other documents produced by the appellant, did not outweigh the weight attached to the views which the Tribunal had already formed as to the credibility of the appellant’s claim to have been employed as a cook by New Bombay Fusion, on other grounds. There was, in my view, nothing irrational about the Tribunal proceeding in this way. I also observe that the Tribunal had, also, rejected the appellant’s other new claim to have been trained as a cook in India prior to coming to Australia, on credibility grounds. The approach which the Tribunal, in essence, adopted is consistent with the process described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49], and the Full Court in WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [70].

55    Accordingly, in my view, the Federal Magistrate did not err in respect of this matter, and the second ground of appeal is dismissed.

56    I observe that, even if I had been of the view that this ground of appeal should otherwise be upheld, I would not have upheld the appeal and ordered that the matter be transmitted to the Tribunal for rehearing. This is because it would have been futile to do so. Even if the Tribunal had come to the view that the appellant had been employed as a cook by New Bombay Fusion during the period January 2008 to August 2008, the appellant would still not have demonstrated that she had worked in a skilled occupation as a cook for at least 12 months. Accordingly, the appellant would not have satisfied the requirement for the awarding of the 10 points and 15 points under the Australian employment and the MODL categories respectively. This is because that eight month period when added to the two month period of employment at Flavour of North India (accepted by the Tribunal as being qualifying employment) would not have been long enough.

Grounds 3 and 4

57    Grounds 3 and 4 contended that the Federal Magistrate erred in respect of the manner in which he dealt with the claim that the Tribunal was biased.

58    The amended application for judicial review before the Federal Magistrate relevantly stated as follows:

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.

59    The Federal Magistrate said that there was no evidence in support of the allegation of bias and that a contention of bias was not supported merely by the fact the Tribunal did not ultimately accept the case presented to it. The Federal Magistrate said that there was nothing in the transcript of the hearing that demonstrated that the Tribunal had a “closed mind”. To the contrary, said the Federal Magistrate, during the hearing and in the correspondence subsequent to the hearing, the Tribunal went to great lengths to draw the appellant’s attention to the need to present as much reliable corroborative evidence as possible. The Federal Magistrate went on to say that there was nothing unfair in the way the Tribunal had proceeded to make its decision after the documentation in support of the appellant’s claim to have been employed as a cook at the New Bombay Fusion, had been submitted to the Tribunal.

60    The Federal Magistrate in his reasons at [54], concluded as follows in relation to ground 3 of the grounds of review:

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.

61    The appellant contended that the Federal Magistrate had erred in requiring the appellant to provide evidence to establish that the Tribunal had a closed mind. This, said the appellant, was not the correct test to apply in considering an allegation of apprehended bias.

62    The appellant went on to contend that a fair-minded, properly informed, lay observer might well infer from the Tribunal’s impugned conduct that the Tribunal had not brought an impartial mind to bear on the decision. The impugned conduct, said the appellant, comprised the fact that the Tribunal had invited the appellant to submit her 2008 individual tax return, but then having accepted the document as the appellant’s tax return, failed to accept the document as corroborating her claim. This conduct, said the appellant, might cause a fair-minded, properly informed, lay observer to conclude that the Tribunal was engaged in a charade.

63    It is the case that the Federal Magistrate did, in the course of his reasoning, observe that he could find no evidence of a “closed mind”. However, in my view, this does not mean that the Federal Magistrate erred by applying the wrong test. The Federal Magistrate stated correctly that an allegation of apprehended bias must be established on the evidence. The Federal Magistrate then examined such evidence as there was before him, including the transcript of the Tribunal hearing and the post-hearing correspondence – upon which the appellant particularly relied. The Federal Magistrate concluded by finding that the evidence relied on by the appellant as suggestive of a “closed mind”, did not satisfy the test of apprehended bias referred to in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 (Ex parte H).

64    In my view, the Federal Magistrate did not err in concluding that ground 3 should be dismissed. In referring to the test in Ex parte H, the Federal Magistrate referred to the correct test. Further, in my view, the Federal Magistrate did not err in concluding that the appellant had not established apprehended bias. In my view, it cannot be said that a fair-minded, properly informed, lay observer might conclude that by inviting the submission of further evidence to corroborate the appellant’s claim to have been employed as a cook by New Bombay Fusion, and then rejecting the appellant’s claim, the Tribunal did not bring an impartial mind to bear on the decision. A fair-minded, properly informed, lay observer would have appreciated that the Tribunal was not bound to accept the documentary evidence as conclusive, and that such evidence would need to be weighed against other evidence.

65    As I mentioned above, the Tribunal rejected the appellant’s claims to be employed as a cook by New Bombay Fusion on independent grounds, and, in light of that finding, in effect, placed little weight on the tax return and other documentation provided as corroboration. In my view, a fair-minded, properly informed, lay observer would not infer that inviting the appellant to provide corroborative evidence and then placing little weight on that evidence, meant that the Tribunal had not brought an impartial mind to bear on the making of its decision.

66    Accordingly, grounds 3 and 4 of the appeal are dismissed.

67    The appeal is dismissed with costs.

Associate:

Dated:    20 March 2012