Weigang v Minister for Immigration of Multicultural Affairs S126/1997 [1998] HCATrans 342 (11 September 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S126 of 1997

B e t w e e n -

MICHAEL WEIGANG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 11.38 AM

Copyright in the High Court of Australia

MR M. WEIGANG appeared in person.

MS A.F. BACKMAN: I appear for the respondent, your Honours. (instructed by the Australian Government Solicitor)

GAUDRON J: Yes, Mr Weigang.

MR WEIGANG: Your Honours, referring to the respondent's outline of submissions in the Federal Court from 15 July 1997 in 13:

In relation to the Tribunal's statement that the Applicant's papers had been "misplaced" it is submitted - - -

GAUDRON J: Mr Weigang, I am not too sure that we have that document but, in any event, the issue is whether there is any error in the decision of Justice Davies. Is that not the question before us?

MR WEIGANG: Yes.

GAUDRON J: You must address yourself to that issue.

MR WEIGANG: In regards to the reasons for judgment from Justice Davies it says:

One requirement of that permit is that which appears in paragraph 816.721(2), namely that the applicant in Australia has obtained or completed the requirements of a trade certificate.

I was not able to produce such a requirement. Nevertheless, it only states that it is required that I completed it. Then regulation 816.721(2)(b), it states that:

the applicant:

(i) .....

(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 the Department nor that State or Territory is able to make an assessment, by the Minister;

I do believe that the Trades Recognition Australia was absolutely unable to make an assessment due to the circumstances which I informed the Trades Recognition about and which also was exhibits before Justice Beaumont.

GAUDRON J: But did you prove that you held an overseas trade qualification? You did not get your papers from Germany, did you? See, what the assessment is concerned with is that overseas qualification.

MR WEIGANG: I did write to the Trades Recognition Australia several times, which I provided those letters in the papers yesterday. It states repeatedly that I could try to get more than what was provided by now, as my employer has been very lazy. As I stated before, the papers that were relevant were not misplaced by my wife, they were simply left behind. I have got no idea of their whereabouts. When we got detained in Cairns, I was held in detention. There was a letter from the Department of Immigration to the Ombudsman that the Department regrets and erred in their decision to detain us. I know you are basically relying on me stating the papers were there - I am relying on you to believe me that the papers initially were there.

GAUDRON J: But as I understand it, you do not hold any overseas technical qualification.

MR WEIGANG: I do hold the work experience though.

GAUDRON J: But the regulation requires you, so far as is presently relevant, to hold a technical qualification, does it not?

CALLINAN J: Or to have done something in Australia to qualify you, and your problem was, in that regard, that you had two inconsistent letters. One said that for four years you had worked as a bricklayer and another one said that for four years you had worked as a plasterer. That is in Justice Davies judgment at page 32.

MR WEIGANG: That is true there were two letters regarding my employment certificates. Under oath before Justice Beaumont I declared that one letter contained a mistake from my employer which was dated - the certificate was stating the time from 2 February 1986 to 12 September 1990 while the second letter stated from 2 December 1986 to 12 September 1990.

CALLINAN J: They cover much the same period, though.

MR WEIGANG: Yes, one period covers more than four and one covers three and three-quarters. But in correspondence from Trades Recognition Australia to the Immigration Department stated that I do not have a prima facie case because there are two different papers. I informed Justice Beaumont that it is not my fault; they simply made a mistake by writing the wrong date and the issue, I thought, was fixed at that time.

I have so far undertaken a lot of calling, writing. I still cannot locate the only person that could possibly get me the missing evidence. The German Consulate has absolutely not been helpful. They refuse even to help me getting a birth certificate for my children. They just will not do anything. They changed all the postcodes in Germany and it is incredibly difficult. I wrote this to the Trades Recognition Australia several times and basically asked them for more time. They said the assessment was made before those 60 days elapsed.

GAUDRON J: Do you have further submissions, because you have to address the critical question as to whether there is any error in the decision of Justice Davies. That is the only question with which this Court is concerned.

MR WEIGANG: As I said before, I do not believe Justice Davies should have seen the reasons for decision by J. Zmisa from the Skills Advisory Unit as sufficient.

GAUDRON J: Do you have anything else to say on that matter?

MR WEIGANG: Not at the moment.

GAUDRON J: There is nothing further you have to say, is that the case?

MR WEIGANG: That is right.

GAUDRON J: Thank you, Mr Weigang. We do not need to hear from you, Ms Blackman.

In this matter we are of the view that there is no error to be discerned in the judgment of Justice Beaumont or that of Justice Davies. Accordingly, special leave is refused.

You do not apply for costs, do you?

MS BLACKMAN: No, your Honours.

GAUDRON J: Thank you. It is refused.

The Court will adjourn briefly to reconstitute.

AT 11.52 AM THE MATTER WAS CONCLUDED