Pun v Minister for Immigration

[2014] FCCA 1585

FEDERAL CIRCUIT COURT OF AUSTRALIA

PUN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1585

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – dismissal of show cause application on account of the non appearance of the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.5F
Migration Regulations 1994 (Cth)

Applicant: REENA PUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2284 of 2013

Judgment of: Judge Driver

Hearing date: 22 July 2014

Delivered at: Sydney

Delivered on: 22 July 2014

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms F Taah

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2284 of 2013

REENA PUN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 26 September 2013, seeking judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 30 August 2013.  The Tribunal affirmed a decision of the delegate to refuse to grant the applicant (Ms Pun) a temporary student visa.

2. Background facts relating to this matter are set out in written submissions, filed on behalf of the Minister on 15 July 2014. 

3. Ms Pun is a national of Nepal who arrived in Australia on 13 April 2009.[1]  On 6 June 2011, an application for a student visa was lodged by a Mr Milan Pun and Ms Pun was included in the application as his spouse/de facto partner.[2]  Mr Pun was granted a student visa however on 7 September 2011, a delegate of the Minister refused to grant Ms Pun a dependent student visa.[3] The delegate noted that in support of the application for a student visa, Mr Pun had submitted bank records for himself and for Ms Pun for a period of six months which recorded that Mr Pun lived at an address in Sydney whilst Ms Pun lived in Queensland. The delegate found that Ms Pun did not satisfy clause 572.322 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), that is, that Ms Pun was a member of Mr Pun’s family unit, as they were no longer in a marital relationship.

   [1] Relevant Documents (RD) 60

   [2] RD 1-7

   [3] RD 48-51

4. On 30 September 2011, Ms Pun applied to the Tribunal for a review of the delegate’s decision.[4] 

   [4] RD 52-59

5. By letter dated 8 July 2013, the Tribunal invited Ms Pun to a hearing.  In that letter, Ms Pun was also invited to provide information supporting her claim that she was the spouse of, or was in a de facto relationship, with Mr Pun.  The Tribunal further indicated that it may wish to take evidence from Mr Pun, either in person at the hearing or via telephone.[5]

   [5] RD 74-75

6. On 29 August 2013, Ms Pun appeared before the Tribunal via teleconference, with the assistance of a Nepali interpreter.[6]  Mr Pun did not attend the hearing.[7]

   [6] RD 109-111

   [7] Movement records dated 8 July 2013 record that Mr Pun departed Australia on 9 June 2013: see RD 70.

7. At the hearing, Ms Pun informed the Tribunal that she continued to be formally married to Mr Pun, although on the last occasion they spoke (in March or May 2013) Mr Pun indicated to Ms Pun that he wanted a divorce as he wanted to marry somebody else.  Ms Pun did not agree to the divorce.[8]  The Tribunal informed Ms Pun about the requirements of a “married relationship” and put to her that the information she had provided suggested that she was no longer Mr Pun’s spouse.[9]

   [8] RD 116[6]

   [9] RD 116[7]

8. On 30 August 2013, the Tribunal affirmed the decision of the delegate not to grant Ms Pun a student visa.

Tribunal decision

1. The Tribunal found that Ms Pun was not a spouse of Mr Pun within the definition in s.5F of the Migration Act 1958 (Cth) (Migration Act) because their relationship lacked a mutual commitment to a shared life together, that is, that the relationship lacked the commitment of Mr Pun. It therefore found that Ms Pun was not a member of Mr Pun’s family unit and did not meet the requirements of clause 572.322 of the Regulations.[10]

   [10] RD 117[8]

The present application

1. This matter came before me for first court date directions in 23 October 2013.  At that time, Ms Pun attended in person, with the assistance of a Nepali interpreter.  Ms Pun, on the information sheet that she completed, noted that she lives in Queensland.  In view of that, I inquired of her whether she would prefer to attend the final hearing of this matter by telephone.  She was uncertain.  In view of that uncertainty, I made order 11 on that day:

   The Court notes that the applicant’s address for service is 13 Water Street, Bundaberg, Queensland, 4670 and that the applicant has elected to have her case heard in Sydney.  The applicant has leave to attend that hearing by telephone provided that she advises my associate that she wishes to do so not less than 7 days before the hearing and nominates a telephone number on which she can be contacted at that time.

2. The Court has had no further contact from Ms Pun.

3. The Minister’s solicitor tendered a letter[11] dated 15 July 2014 to Ms Pun at her address for service, which provided a copy of the Minister’s submissions and reminded her of the hearing today at 10.15am, here, at John Maddison Tower.  The letter warned her that if she failed to appear orders might be sought, dismissing her application with costs.

   [11] Exhibit R1

4. There was no appearance by or on behalf of Ms Pun this morning.

5. Before I came on the bench, my Deputy Associate attempted to contact Ms Pun on the mobile telephone number shown on her application and in the information sheet she had completed, but the phone was switched off.  The matter has been called twice; on each occasion there was no response to call.

6. There is no explanation for Ms Pun’s non attendance.

7. In these circumstances, I have decided to dismiss the application, on account of Ms Pun’s non attendance.  I will so order.

8. The Minister seeks costs in a consequence of the dismissal, fixed in the sum of $4,000.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in that amount.

9. I will further direct that the Minister arrange to have the orders made today entered, and that the Minister cause a sealed copy of those orders to be served on Ms Pun at her last known address for service, by ordinary prepaid post, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 24 July 2014