Yang Lu v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1448

FEDERAL COURT OF AUSTRALIA

Yang Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1448

YANG LU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD443 OF 2005

BENNETT J
10 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD443 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	YANG LU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	10 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal is dismissed.

2.   The appellant pay the respondent’s costs on an indemnity basis.

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	NSD443 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	YANG LU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	10 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China who applied for a student (Temporary) (Class TU) visa on 11 March 2003.  At the time the appellant held a subclass 560 visa which was granted on 29 November 2000 and was valid until 15 March 2003. 

2. I will not go into the detail of the factual claims for the reasons which will appear.  A delegate of the respondent refused the visa application and the appellant appealed to the Tribunal.  The letter that was sent by the Tribunal to the appellant inviting him to a Tribunal hearing was returned.  However, the appellant did attend the hearing before the Tribunal on 24 June 2004.  He had not provided any of the evidence requested in the invitation.  He claimed that his representative had all the documents and that he could not obtain them as they were held in a personal safe.  The Tribunal affirmed the decision of the delegate.

3. The appellant appealed to Federal Magistrate Lloyd Jones.  He did not appear at the hearing in the Federal Magistrates Court and no explanation was supplied to indicate the reason for his non-appearance.  His Honour noted the procedural history of the case.  The Federal Magistrate dismissed his application.

4. The appellant has appealed to this Court.  I note the appellant did appear at a directions hearing on 15 April 2005 where orders were made by consent.  Those orders included an order that the matter be set down for hearing this morning and also a direction that the appellant file and serve written submissions.  No such submissions have been received. 

5. There was no appearance this morning by the appellant.  The matter was called outside the court.  I note that an interpreter had been arranged to assist the appellant.

6. I have been informed by Mr Reilly, who appears for the Minister, that the written submissions for the respondent were returned to the solicitor for the respondent.  Mr Reilly has also tendered a diary note from his instructing solicitor which sets out a conversation with the appellant last week in which the appellant asked the date of the hearing and was informed that it at 10.15 am this morning.  The appellant also said that he had not received any letters from the Court about the hearing date.  The consent orders at the directions hearing of 15 April were in writing and a copy has been given to the appellant.

7. Mr Reilly has asked that the appeal be dismissed and has sought indemnity costs. I will dismiss the appeal under section 25(2B)(bb)(ii) Federal Court of Australia Act 1976 (Cth). In view of the procedural history and the constant failure by the appellant to appear without explanation, where it was necessary to arrange an interpreter and where the respondent has briefed counsel, I will order indemnity costs. I note that such a course was taken by the Full Court in Applicant NAGS of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 444.

8. The appeal is dismissed.  I order the appellant to pay the respondent’s costs on an indemnity basis.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             10 October 2005

The Appellant did not appear.

Counsel for the Respondent:	T. Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 October 2005
Date of Judgment:	10 October 2005