Yao v Minister for Immigration and Citizenship

[2011] FCA 415

FEDERAL COURT OF AUSTRALIA

Yao v Minister for Immigration and Citizenship [2011] FCA 415

Citation:		Yao v Minister for Immigration and Citizenship [2011] FCA 415
Appeal from:		Yao and Department of Immigration and Citizenship [2010] AATA 1082
Parties:		QING QUAN YAO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
File number:		NSD 28 of 2011
Judge:		BENNETT J
Date of judgment:		19 April 2011
Legislation:		Federal Court Rules O 53 r 20
Date of hearing:	19 April 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the First Respondent:	Ms A Crittenden of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 28 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: QING QUAN YAO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	19 APRIL 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 28 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

QING QUAN YAO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	19 APRIL 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Qing Quan Yao, appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of the first respondent (the Minister).

2. By his application filed 17 January 2011, Mr Yao applied for an extension of time to file and serve a notice of appeal in relation to the Tribunal decision.  When the matter first came before the Court for directions on 22 February 2011, Mr Yao appeared for himself.  On that occasion, after the Minister consented to the extension of time being granted, I made the order that the grounds set out in Mr Yao’s affidavit be deemed to be the grounds of appeal.   The matter was stood over to 11 March 2011. 

3. When the matter came before the Court on 11 March 2011, there was no appearance for Mr Yao.  On that date, I made orders:

   ·as to the filing of an amended notice of appeal by Mr Yao;

   ·as to the filing and serving of relevant documents;

   ·listing the matter for hearing today; and

   ·as to the filing and serving of written submissions by Mr Yao and the Minister.

4. Following the directions hearing, the Minister notified Mr Yao by letter to his address for service of the listed hearing date of the matter.  The Minister also notified Mr Yao that a directions hearing had occurred in the matter on 11 March 2011 and annexed a copy of the short minutes of order of that date.  The Minister’s letter was returned. 

5. On 31 March 2011 the Minister again wrote to Mr Yao, enclosing the appeal book that had been filed on 31 March 2011.  The Minister again noted that the matter was listed today and notified Mr Yao that if he did not attend the hearing either in person or by legal representative, the Minister was instructed to have his matter dismissed with costs.  Contact details were provided for the solicitor for the Minister.  That letter was not returned.  No further contact was made pursuant to that letter. 

6. On 11 April 2011, the Minister wrote to Mr Yao enclosing the Minister’s outline of written submissions.  Again, the letter noted that the matter was listed for hearing on 19 April 2011 and the letter again stated that if Mr Yao did not attend the hearing, either in person or by legal representative, the Minister’s solicitor was instructed to seek to have his matter dismissed with costs.  There was no response to that letter.  That letter was not returned. 

7. Mr Yao has not filed an amended notice of appeal or written submissions in accordance with the orders made on 11 March 2011 and notified to him.  The Court has not received any contact from Mr Yao. 

8. When the matter was called on for hearing this morning, I adjourned for a short time to ensure that Mr Yao had the opportunity to attend.  When the matter came on again for hearing, the matter was called outside the Court and there was no attendance from Mr Yao.

9. The Minister applies to have the matter dismissed, pursuant to O 53 r 20(1)(a) of the Federal Court Rules (the Rules).  I note that, pursuant to O 53 r 20(2), notice of that proposed order has been served on Mr Yao.  I am satisfied that Mr Yao has not done a number of acts required to be done under the Rules, in that he did not attend the directions hearing of 11 March 2011, has not filed written submissions in advance of today’s hearing and has not attended the Court today to prosecute his appeal.  

10. In my view it is appropriate that the appeal be dismissed with costs. 

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

Associate:

Dated:        28 April 2011