Maurya v Minister for Immigration
[2012] FMCA 142
•27 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAURYA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 142 |
| MIGRATION – Application in a Case – whether application should be re-instated after dismissal for non-appearance – unsatisfactory explanation for non-appearance –application for judicial review has no reasonable prospects of success – Application in a Case dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Maurya v Minister for Immigration and Citizenship & Anor [2011] FMCA 914 |
| Applicant: | RAJ DHAR MAURYA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2410 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 February 2012 |
| Date of Last Submission: | 27 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2012 |
REPRESENTATION
| The applicant appeared in person |
| Appearing for the Respondents: | Emily Baggett |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The proceeding before this Court, commenced by way of application filed on 14 December 2011, is dismissed with costs.
The applicant pay the costs of the first respondent fixed in the amount of $800.
NOTE A: The application for costs is in accordance with the relevant Schedule in the Federal Magistrates Court Rules 2001 (Cth).
NOTE B: The affidavit of the applicant, affirmed 21 October 2011, was read by the first respondent in opposing the applicant’s Application in a Case.
NOTE C: A letter dated 7 November 2011 from the first respondent to the applicant is marked “Exhibit 1R” on the application for reinstatement.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2410 of 2011
| RAJ DHAR MAURYA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I understood that the applicant’s Application in a Case, filed on 14 December 2011, seeks an order setting aside orders made by the Court on 23 November 2011 dismissing the applicant’s application, for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). Reasons were given by me at that time in Maurya v Minister for Immigration and Citizenship & Anor [2011] FMCA 914.
The Application in a Case before the Court today states only that the orders sought are:
“Due to work commitment the applicant failed to attend the court hearing and lost the chance to explain his situation.”
The applicant was unrepresented and confirmed to the Court that the order that he sought was the reinstatement of his initiating application.
I explained to the applicant that the matters to which the Court would have regard, in particular, were his explanation for his failure to attend the Court directions hearing on 23 November 2011, and the utility in reinstating his application having regard to the grounds of the application.
The application this morning was opposed by the first respondent on the grounds that there was no evidence provided by the applicant to explain his failure to attend the directions hearing on 23 November 2011, and that the originating application seeking judicial review of the Tribunal’s hearing had no, or no reasonable, prospects of success.
The applicant was given leave to give oral evidence this morning to explain his failure to attend the directions hearing on 23 November 2011. The applicant’s explanation was that he was working through an agency and that he had a work commitment which he chose to attend, and that he did not understand that his case would be dismissed if he did not attend the first Court date.
The applicant was cross-examined by the solicitor for the first respondent. A letter from the first respondent to the applicant, dated 7 November 2011 and marked “Exhibit 1R”, was shown to the applicant. That letter informed the applicant of the directions hearing on 23 November 2011, and informed the applicant that if he did not attend the respondent may seek to have the matter dismissed with costs for non-appearance. The applicant agreed that he had received the letter and that he understood its contents.
I further note that the application filed by the applicant on 21 October 2011, clearly has the date of 23 November 2011 marked on the face of the application, and informs the applicant that default orders may be made if any party fails to attend.
In the circumstances, I am not satisfied that the explanation offered by the applicant is satisfactory.
Further, in considering the utility in reinstating the applicant’s application, I note that the grounds of the initiating application are as follows:
“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.”
The applicant made clear to the Court this morning that his complaint about the Tribunal’s decision was its failure to grant him further time to undertake English tests. The affidavit filed by the applicant at the time of the filing of his initiating affidavit, affirmed on 21 October 2011, attached a copy of the Tribunal’s decision record. The applicant’s affidavit was read by the first respondent this morning in opposing the reinstatement of the application for judicial review of the Tribunal’s decision.
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.
In the circumstances I am not satisfied that the applicant’s application for judicial review has any, or any reasonable, prospects for success, such that there is any utility in reinstating the applicant’s application for judicial review of the Tribunal’s decision.
Accordingly, the Application in a Case filed by the applicant on 14 December 2011 seeking to set aside the orders made by the Court on 23 November 2011 dismissing his application for judicial review is refused.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 March 2012
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