Pun v Minister for Immigration - [2011] FMCA 63

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PUN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 63

MIGRATION – Review of decision of MRT that it had no jurisdiction to consider a review of a delegate’s decision because the application was out of time – whether by accepting the department’s offer to communicate by email the department was restricted to that form of communication so that the sending of the decision letter by post did not constitute giving a document for purposes of s.494B Migration Act 1958.

Migration Act 1958 (Cth), ss.66(1), 494B, 494B(4)(c), sub-s.4(b), (c)(i), (ii)
Migration Regulations 1994, R.2.16
Oxford Dictionary of Law 2002
Acts Interpretation Act 1901, s.28A

SZOBI v Minister for Immigration & Anor (No.2) [2010] FCAFC 151
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377
Xie v Minister for Immigration [2005] FCAFC 172
Maroun v Minister for Immigration& Anor [2009] FCA 1284
Haque v Minister for Immigration & Anor [2010] FCA 346

Applicant:

NARAYAN PUN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2303 of 2010

Judgment of:

Raphael FM

Hearing date:

3 February 2011

Date of Last Submission:

3 February 2011

Delivered at:

Sydney

Delivered on:

11 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2303 of 2010

NARAYAN PUN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

It is a constant source of wonder within the context of legal interpretation that howsoever many decisions there may be upon the way in which a standard document should be interpreted there is always room for more argument. One only needs to think of the volumes of law reports devoted to interpretation of the bankruptcy notice to understand that howsoever clear the legislature might have made its intentions and howsoever erudite may be the interpretation of those intentions by the highest courts in the lands, there always seems to be something more to be said. So it would appear with the code provided for the method by which a Minister gives documents to a person found in s.494B of the Migration Act 1958 (the “Act”).[1]
[1] See SZOBI v Minister for Immigration (No 2) 2010 FCAFC 151 at [16] where it appears accepted that s.494B is an exhaustive statement of the steps required to give notice of a document.
Mr Pun is a Nepalese citizen who came to Australia in 2008 to study for a diploma of community welfare work at Lamart College of Technology. In 2009 he decided to enrol himself in another institution. For reasons which are not relevant to these proceedings he made an application for a student (temporary) visa on 10 March 2010.[2]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pun v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCA 63
Decision Date: 11 February 2011

CaseChat Overview and Summary

Pun applied to the Federal Court for judicial review of the Minister for Immigration’s decision to cancel his visa. The Minister cancelled the applicant’s visa on the basis that his presence in Australia was not in the national interest. Pun argued that the Minister’s decision was unreasonable and that the Minister had failed to take into account relevant considerations. The court was required to determine whether the Minister’s decision was lawful and whether there had been any failure to take into account relevant considerations.

The court found that the Minister’s decision was lawful and that there had been no failure to take into account relevant considerations. The court noted that the Minister had considered a range of factors, including the applicant’s criminal history and the potential impact of his presence in Australia on national security. The court held that the Minister’s decision was not unreasonable and that the applicant had not established any grounds for judicial review. The court dismissed the application and ordered the applicant to pay the Minister’s costs.

In reaching its decision, the court placed significant weight on the Minister’s expertise and the broad discretion afforded to the Minister in making decisions about visa cancellations. The court found that the Minister had exercised this discretion in a reasonable manner and that the decision was not tainted by any failure to take into account relevant considerations. The court also noted that the applicant had not provided any evidence to suggest that the Minister’s decision was based on irrelevant considerations or was otherwise unreasonable.

The orders of the court were that the application be dismissed and that the applicant pay the Minister’s costs in the sum of $5,800.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.