FEDERAL COURT OF AUSTRALIA

 Yao v Secretary, Department of Employment and Workplace Relations

[2007] FCA 1065

QING QUAN YAO v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

NSD 333 OF 2007

MADGWICK J

11 JULY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HIS HONOUR

1                     This case, so far as one can judge, is or may be another melancholy example of a person, who might have an arguable case for discretionary relief at the hands of an administrative decision maker, so managing to obscure what the arguable case might be as to guarantee his own defeat and waging a battle himself until, at length, he consults lawyers who can see what the arguable case might have been, but are constrained to fight the matter on the hopeless basis which the client has, in fact, constructed.  It reminds me of the injunction which Cabots, the manufacturers of the admirable paints, put on their tins: “When all else fails, read the instructions”. 

2                     The case concerns whether there can be found any error of law in the Administrative Appeals Tribunal (“AAT”) decision not to intervene to disrupt earlier decisions of an Authorised Review Officer (“ARO”) in the Department of Employment and Workplace Relations which had been upheld by the second decision maker, the Social Security Appeals Tribunal (“SSAT”).

3                     Counsel for the appellant did his best to find such an error of law but the only one he could suggest to the Court was that there had been no evidence to support a finding by the ARO that an advanced accounting diploma course, which the appellant studied at a TAFE college in 2005, must be, as the ARO perceived, of more than 12 months duration.  If the ARO was wrong about that, the appellant signally failed to make this clear, which could readily have been done by some evidence, one would think, before either the SSAT or the AAT. 

4                     The matter is before me on appeal from the Federal Magistrates Court where Smith FM laboured above and beyond the call of duty to satisfy himself that there had been no error of law which might have adversely affected the AAT decision of which the appellant complained before his Honour.  In the end his Honour could find no such error and neither can I.  I consider that the appeal must fail because his Honour was correct for the reasons that he gave. 

5                     The appeal must be dismissed with costs. 

Associate:

Dated:         19 July 2007