Liu v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 716

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 716

MIGRATION  – failure to appear

Federal Court of Australia Act 1976 (Cth) – s 25 (2B)(bb)(ii)

XUEREN LIU AND AUSTRALIAN LIANGWEI ENTERPRISES PTY LIMITED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 225 of 2005

JACOBSON J
31 MAY 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 225 of 2005

On Appeal from the Federal Magistrates Court

BETWEEN:	XUEREN LIU FIRST APPELLANT
AUSTRALIAN LIANGWEI ENTERPRISES PTY LIMITED SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	31 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1977 (Cth).

2.The applicant is to pay the respondent’s 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	NSD 225 of 2005

On Appeal from the Federal Magistrates Court

BETWEEN:	XUEREN LIU FIRST APPELLANT
AUSTRALIAN LIANGWEI ENTERPRISES PTY LIMITED SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	31 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This appeal was listed for hearing before me this morning.  When the matter was called on for hearing there was no appearance on behalf of either of the named appellants. 

2. I am satisfied that both of the parties named as appellants in the notice of appeal were aware that the matter was listed for hearing before me today.  First, Mr Liu was present at a directions hearing before me on 24 March 2005 when the matter was listed for hearing today, subject to a direction from the Chief Justice determining that the appeal should be heard by a single judge.  Mr Liu on that occasion purported to appear on behalf of the corporate appellant and on his own behalf and this is sufficient to satisfy me that each of the named appellants was aware of today's hearing.

3. There is further evidence to satisfy me that Mr Liu was reminded of the fact that the matter was listed for hearing today. 

4. On 17 May 2005, my associate wrote to Mr Liu at the address stated in the notice of appeal informing him that the Chief Justice has determined that the appeal be heard by a single judge.  The letter notes that the matter has been listed for hearing before me today at 10.15 am.

5. Moreover, on 27 May 2005 the solicitors for the Minister wrote to Mr Liu at the address stated in the notice of appeal enclosing the respondent's outline of written submissions and a list of authorities.  The letter concluded with the following words:

   “Please note that should you fail to attend the hearing of this matter at 10.15 am on 31 May 2005 we will request the court to dismiss your appeal for non-appearance.”

6. Shortly after 10.15 am I stood the matter down in case either of the named appellants or their representatives were unavoidably detained.  However, it is now nearly 10.45 am and there is still no appearance. 

7. Mr Potts who appears for the Minister asks me to exercise my power under s 25(1)(2B)(bb)(ii) Federal Court of Australia Act 1976 (Cth) (“the Act”) to order that the appeal be dismissed for the failure of the appellants to attend the hearing.

8. It is plain that I have power to do so and in view of what I have said about Mr Liu's knowledge of the fact that the matter was listed for hearing today it is appropriate that I exercise my power under that section. 

9. Mr Potts asks me to make an order for costs.  Although the letter of 27 May 2005 does not point out to Mr Liu that this would be a further consequence of his failure to attend today it is without doubt appropriate that the ordinary rule should apply and that I should order the appellant to pay the respondent's costs.

10. Accordingly, the orders I will make this morning are that the appeal be dismissed pursuant to section 25(2B)(bb)(ii) of the Act and I order the appellant to pay the respondent's costs of the appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             2 June 2005

No Appearance for the Appellant
Counsel for the Respondent:	Mr J Potts
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	31 May 2005
Date of Judgment:	31 May 2005