FEDERAL COURT OF AUSTRALIA Maurya v Minister for Immigration and Citizenship [2012] FCA 488 Citation: Maurya v Minister for Immigration and Citizenship [2012] FCA 488 Appeal from: Maurya v Minister for Immigration & Anor [2011] FMCA 914 Parties: RAJ DHAR MAURYA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 376 of 2012 Judge: KATZMANN J Date of judgment: 2 May 2012 Legislation: Migration Regulations 1994 (Cth), Sch 2, cl 485.215 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) ss 467(1), 474 Cases cited: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 House v The King (1936) 55 CLR 499 Maurya v Minister for Immigration and Citizenship & Anor [2011] FMCA 914 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Date of hearing: 2 May 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent Ms E Baggett of DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 376 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: RAJ DHAR MAURYA Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 2 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 376 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: RAJ DHAR MAURYA Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 2 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from transcript) 1 Raj Dhar Maurya, an Indian national, applied to the Minister for Immigration and Citizenship ("the Minister") for a Skilled (Provisional)(Class VC) visa. A delegate of the Minister refused his application. He then applied to the Migration Review Tribunal for a review of the delegate's decision. When his application came before the tribunal Mr Maurya applied for an adjournment to enable him to sit for an English language test about six weeks later and a further test two weeks after that. The tribunal declined his request for an adjournment but agreed to give him additional time to sit the tests and provide his results before giving its decision. After he did so, he asked for more time to sit another test. The tribunal agreed to his request but then he asked for more time to sit yet a further test. The tribunal refused his last request and on 26 September 2011 affirmed the decision under review, holding that he did not meet the prescribed criteria. In particular, the tribunal was not satisfied that Mr Maurya has "competent English", one of the primary criteria for the grant of a visa of this kind imposed by the Migration Regulations 1994 (Cth), Sch 2, cl 485.215. 2 On 21 October 2011 Mr Maurya applied to the Federal Magistrates Court to have the decision quashed but, on the day his application was listed for first directions in that Court he failed to appear. On 23 November 2011, on the application of the Minister, the federal magistrate made orders dismissing the application on that account in accordance with the power given to the Court by r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth): Maurya v Minister for Immigration and Citizenship & Anor [2011] FMCA 914. On 14 December 2011 Mr Maurya filed an interlocutory application ("an application in a case") seeking orders in the following terms: Due to work commitment the applicant failed to attend the court hearing and lost the chance to explain his situation. 3 When the matter was listed before the federal magistrate on 27 February 2012 it was clear that Mr Maurya was applying to set aside the judgment of 23 November 2011. His oral explanation for failing to attend accorded with what was put in the interlocutory application but he added that he did not understand that his case would be dismissed if he did not attend the first Court date. Under cross-examination he agreed that he had received a letter from the Minister informing him of the directions hearing and advising him that if he did not attend the Minister may seek to have the matter dismissed with costs for non-appearance. He also agreed that he understood the contents of the letter. The federal magistrate observed that the initiating application itself contained a note to the effect that default orders could be made if any party failed to attend on the return date. The Minister opposed the application and her Honour dismissed it. 4 Now Mr Maurya seeks leave to appeal that judgment. For the reasons that follow this application must also be dismissed. 5 The grounds of the application for leave to appeal are in the following terms (without alteration): (1) The appellant appeals from the whole of the judgment of judgment SYG2410 of 2011 made by federal Magistrate Emmett FM at Sydney. (2) The application claims that he was truthfull witness he accepted that he tried many times to score in the English test and asked for some further time to get IEHS score. 6 The application for leave to appeal was supported by an affidavit sworn by Mr Maurya on 6 March 2012. It reads in its entirety: I am citizen of India. My application for Judicial review is based on the material already filled with the Department of Immigration and citizenship and MRT. The fact in the application are within my personal knowledge. 7 Accompanying the application was a draft notice of appeal. The grounds read (without alteration): The application claims that he was truthfulness witness when he accepted that he tried many times to score in English Test and asked for some further times to attempt to achieve the required test point. 8 In general, an application for leave to appeal will only be granted if there is sufficient doubt about the judgment under appeal to warrant its reconsideration and substantial injustice would result if leave were refused and the judgment was wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. And for good reason. There is no point in the Court acceding to an application for leave to appeal a judgment if the judgment was right all along or the applicant is unable to show appealable error, for, absent error, the appeal must fail: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [25]. 9 The federal magistrate gave two reasons for refusing to set aside her judgment of 23 November 2011. First, her Honour said she was not satisfied with the applicant's explanation for his failure to appear on that date. Secondly, she held that there was no utility in doing so. Consequently, her Honour said she was satisfied that Mr Maurya's application for judicial review had no or no reasonable prospects of success. I respectfully agree. 10 The decision of the tribunal is "a privative clause decision" within the meaning of s 474 of the Migration Act 1958 (Cth) ("Migration Act"). A privative clause decision can only be set aside for jurisdictional error. See s 467(1) of the Migration Act and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. The initiating application did allege that the tribunal fell into jurisdictional error. It pleaded that: (1) The MRT made a jurisdictional error when it misapplied the law. (2) The MRT did not include all the matters and evidence related with [sic] application. (3) The applicant was denied procedural fairness when the decision was made without giving him a chance to submit necessary evidence before the decision." 11 The applicant did not indicate, however, what the legal error was, nor did he advance any argument in support of the other grounds. Her Honour said that the applicant made it clear that (despite the terms of his initiating application) that his complaint about the tribunal's decision was that it did not give him further time to undertake English tests. That is not a misapplication of the law or a denial of procedural fairness. Her Honour then said this: I make no final determination on whether or not the decision of the Tribunal is affected by jurisdictional error. It is clear from the decision record that the Tribunal understood that the applicant was requesting further time. It would appear that the Tribunal considered that request. In the decision record, the Tribunal noted that the applicant had unsuccessfully sat the English language test at least six times before the Tribunal hearing, and that the Tribunal had afforded him three further opportunities to sit the test. The Tribunal then exercised its discretion not to allow any further opportunity to the applicant to undertake a further test. No error has been identified by the applicant going to the Tribunal's exercise of its discretion in that regard. 12 In substance the applicant's complaint is with the Tribunal's decision to refuse to grant his application for an adjournment. That decision was an exercise of the Tribunal's discretion as her Honour recognised. To disturb that decision the applicant had to satisfy the principles set out in House v The King (1936) 55 CLR 499 and that he has failed to do. For this reason alone, the applicant is unable to show that there is sufficient doubt about the federal magistrate's judgment to warrant its reconsideration. The application for leave to appeal must therefore be refused. For completion, however, I would make two further observations. First, the reasons her Honour gave for finding the applicant's explanation unsatisfactory are entirely sound. Secondly, the solitary ground in the draft notice of appeal raises no appealable error. 13 At the hearing of the leave application the applicant offered no reason to doubt the correctness of her Honour's judgment. Indeed, he said: Her judgment was right, but I just need the extra time. 14 The application for leave to appeal must accordingly be dismissed. Costs should follow the event. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 10 May 2012