Ali Mansoor v Minister for Immigration & Multicultural Affairs

[1997] FCA 855

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 462  OF   1996

BETWEEN:	ALI MANSOOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		1 SEPTEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 462 OF 1996

BETWEEN:	ALI MANSOOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	1 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 (“the Act”) for review of a decision of the Immigration Review Tribunal (“the IRT”).

The applicant, Mansoor Ali, had applied on 28 July 1994 for a Class 816 entry permit under the Migration (1993) Regulations.  The IRT found that he did not meet any of the criteria prescribed for such an entry permit by subclause 816.721(2) of Schedule 2 to those regulations.

Subclause 816.721(2) provided:

“(2)     An applicant meets the requirements of this subclause if, on
1 November 1993:

(a)the applicant in Australia had obtained, or had completed the requirements of, a post-secondary educational qualification following an accredited course leading to a trade certificate, advanced certificate, associated diploma, diploma, degree or higher degree; or

(b)      the applicant:

(i)held an overseas technical qualification or general academic qualification that is assessed by NOOSR as being comparable to an Australian associate diploma, diploma, degree, or higher degree; or

(ii)held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade:

(A)      by the Department of Industrial Relations; or

(B)if that Department is unable to make an assessment, by the State or Territory authority that the Minister decides is appropriate; or

(C)if neither that Department nor that State or Territory authority is able to make an assessment, by the Minister; or

(c)       the applicant:

(i)had been enrolled during the 1993 academic year in an accredited course leading to a trade certificate, advanced certificate, associate diploma, diploma, degree or higher degree; and

(ii)had met the academic progress requirements of the institution at which he or she was enrolled.”

The IRT found that Mr Ali’s “employment history contains no positions where he has acted in a job requiring, or leading to the acquisition, of trade skills”.  It described the evidence this way:

“There is no evidence that [Mr Ali] holds any post secondary qualifications, nor that on 1 November 1993 he was enrolled in an appropriate course.  His evidence is that in his home country he was educated to the equivalent of year 10 in high school, and that following that he worked in his family business, selling steel items (eg reinforcing bars for building construction) until he came to Australia in 1989.  In Australia his evidence (corroborated by letters from employers) is that from December 1989 to April 1991 he was employed as a process worker, operating a machine, for which he was given 2 weeks training.  He was then employed as a ‘Customer Service Attendant’ by an entity called ‘Timezone’ - which was, apparently, a venue where patrons might avail themselves of coin-operated machines - from April 1991 to October 1992.  This involved giving customers change, and occasionally carrying out minor repairs to the machines, such as freeing jammed buttons or coins in the machines.  If any electrical fault manifested itself he would call an electrician.  Again, training was about 2 weeks.  In August 1992 and on through November 1993 his evidence is that he was employed at a similar venue, called ‘Galaxy Electronics” as a supervisor.  This job entailed no training.  It seems to have involved more responsibility than his term at Timezone.  He had to look after sums of money up to $20,000.00, and do some soldering.  But any problems he could not fix were dealt with by a technician.”

Mr Ali appeared in person to argue his case.  He is a citizen of India who has been in Australia since 29 October 1989.  Mr Ali submitted that the IRT’s finding was factually incorrect in that the IRT failed to consider and assess his trade skills as a baker.  He explained in written submissions he handed up that his skills were now being assessed by the Vocational Training Board, that the NSW Department of Training and Education Co-ordination had delayed testing, and that he had been informed his baking skills would be tested in the near future.  Mr Ali asked that the Court “correct” the data on his file with the Department of Immigration and Multicultural Affairs as, should he pass the trade skills test, the IRT’s finding would prove “very damaging”.

It will be apparent that Mr Ali has the misfortune not to comprehend at all the nature of the review permitted the Court under Pt 8 of the Act. Mr Ali made his submissions politely and courteously. His command of the English language was quite adequate, and he laboured under the same kind of misconceptions as one might expect of any non-lawyer unable to distinguish between merits review and judicial review. Accordingly, I have looked for myself at the material before the IRT upon which it based its finding about Mr Ali’s trade skills. (This material was very properly tendered by the respondent.)

The approved form of application for the Class 816 entry permit that Mr Ali lodged with the Department of Immigration and Ethnic Affairs gave no details of any relevant educational or trade qualifications.  In his application for internal review lodged on 4 January 1995, Mr Ali submitted evidence of his “very stable employment history”, which included a letter dated
28 December 1994 from one Pierre Menassa who described himself as the managing director of a business trading as The Lebanese Loaf in the Sydney suburb of West Ryde.  The letterhead described the business as Lebanese bread manufacturers, grocery importers and coffee roasters.  In his letter Mr Menassa said that Mr Ali was employed in the business from December 1989 to April 1991.  Mr Ali said in his application for internal review that he was employed by The Lebanese Loaf as a machine operator. 

Mr Ali gave evidence before the IRT on 19 April 1996.  He confirmed that he first worked in Australia at The Lebanese Loaf and said that he worked there as a process worker.  When asked what he was doing as a process worker, Mr Ali said: “Just making breads, machine operator there.”  Asked how much training he received there, he said: "Just two weeks.  They first give two weeks training and after that I start as a machine operator.  Then they make me a machine operator for one and a half years.”

That was all the material before the IRT touching on Mr Ali’s connexion with baking. He made no explicit claims of any trade skills. Any finding on the question of Mr Ali’s qualifications and experience as at 1 November 1993 was a matter for the IRT. In the present case the facts as found were, beyond argument, reasonably open to it. No ground of review under s 476(1) of the Act has been made out.

Mr Ali also wanted to “correct” what the IRT had to say about the visa that he used to enter Australia.  The respondent concedes that the IRT’s description of the evidence on this subject was inaccurate.  However, the respondent submits that, in the light of the finding on subclause 816.721(2), it was unnecessary for the IRT to consider whether the visa criterion in clause 816.724 was met, and the respondent points out that IRT expressly eschewed doing so.  I accept this submission.

The application is dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            1 September 1997

The applicant appeared in person.

A F Backman of counsel instructed by the Australian Government Solicitor
appeared for the respondent.

Date of hearing:         20 June 1997

Date of judgment:      1 September 1997