Weigang, Michael v Minister for Immigration & Multicultural Affairs

[1997] FCA 1302

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 703 of 1997

BETWEEN:	MICHAEL WEIGANG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
CORAM:	DAVIES J
DATE OF ORDER:	22 OCTOBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 703 of 1997

BETWEEN:	MICHAEL WEIGANG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

CORAM:	DAVIES J
DATE:	22 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for leave to appeal from a judgment of Beaumont J which was given on 17 July of this year.  His Honour dismissed an application seeking an order of judicial review of a decision of the Immigration Review Tribunal.  His Honour expressed the view that he could perceive no error of law in the approach taken by the Immigration Review Tribunal, nor did he see any ground of review which was available to the applicant, Mr Michael Weigang.  The matter presently before the Court is an application for an extension of time to file and serve a notice of appeal.  Because Mr Weigang is acting for himself, I would extend time if I were satisfied that there was a reasonably arguable case.

Mr Weigang was advised at a directions hearing that he had the option of having his application heard by a Full Court.  However, he expressed satisfaction with having the matter determined by a single judge. 

Mr Weigang had sought a permit which depended upon satisfaction of the criteria set out in relation to the class 816 entry permit.  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.  The term "trade certificate" is defined as follows:

"'trade certificate' means a certificate called by that name issued by:

(a)a State or Territory training authority; or

(b)a TAFE institution;

following initial trade training undertaken in conjunction with an apprenticeship or following non-apprenticed entry."

What is intended therefore is formal trade training, not merely experience in a relevant trade.  The regulation has in mind something in the nature of a formal apprenticeship, formal education and the grant of a certificate by the relevant educational institution. 

Regulation 816.721(2)(b) deals with the case where the applicant did not obtain a qualification in Australia:

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

...

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

Mr Weigang does not hold any formal overseas technical qualification but it seems that he worked for some years as a bricklayer or in the bricklaying trade.  There were two applications made to the Department of Industrial Relations by Mr Weigang and, on both occasions, the assessment that was made was that his work experience in his homeland did not meet the Australian education or training standards for the trade.  It is sufficient for me to set out the reasons for decision given by a J. Zmisa of the Skills Advisory Unit of the Department of Industrial Relations on 25 March 1996:

"Has not completed formal trade training, nor has he provided evidence of sufficient period of employment for the purpose of classification as a tradesperson in Australia. 

He managed to provide statements of service from only one employer which differ substantially in the information provided.  Folio 2 refers to the period of employment from 02/02/86 to 12/09/90 as a Bricklayer and folio 16 refers to the period of employment as from 02/12/86 to 19/09/90 as a Plasterer.  Which one is correct?!

Does not have a prima facie case."

Because the Department of Industrial Relations, the body specified in the regulations, had not assessed Mr Weigang's qualifications as meeting the Australian standards, the relevant decision maker dealing with the application for a class 816 permit necessarily had no option but to dismiss the application.  It was not for the officer of the Department of Immigration and Multicultural Affairs to consider the matter himself.  The regulations required that the assessment be undertaken by the Department of Industrial Relations.  That assessment had been unfavourable. 

It was because Mr Weigang's case did not meet the regulations in that he did not hold any Australian trade certificate and his work experience had not been assessed by the Department of Industrial Relations to meet the Australian standards that Beaumont J held that there was no error of law in the decision of the officer of the Immigration Review Tribunal.

On the material which is before the Court, no other decision could have been made by either the officer in the Department of Immigration and Multicultural Affairs or by the Immigration Review Tribunal.  It follows that there is no arguable case and accordingly the application for leave to appeal out of time must be refused 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 Davies

Associate:

Dated:             22 October 1997

Solicitor for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	G. Peek, Solicitor
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 1997
Date of Judgment:	22 October 1997