KUMAR v Minister for Immigration

In the Federal Circuit Court of Australia at Perth, the applicant, Deepak Kumar, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed a delegate of the Minister for Immigration's refusal to grant him a Medical Treatment (Visitor) (Class UB) visa. Subsequently, the applicant filed an application to set aside earlier orders made by the Court dismissing his substantive application due to his non-appearance at a show cause hearing.

The legal issues before the Court were whether the applicant had a reasonable excuse for his non-appearance at the show cause hearing, the impact of any delay in seeking reinstatement, and whether the applicant had a reasonably arguable prospect of success in his substantive application for judicial review. The Court also considered the applicant's explanation for his non-appearance, which was that he had moved and failed to update his address for service, and was suffering from poor mental health due to a relationship breakdown.

The Court reasoned that for reinstatement, it generally considers the reasonableness of the excuse for absence, the delay in seeking reinstatement and any prejudice to the Minister, and the prospect of success in the substantive application. The applicant's explanation for non-appearance was contested by the Minister, who argued it was not credible and that the applicant had been repeatedly notified of the hearing date. The Court noted that the applicant's substantive application for the visa was based on claims of anxiety and depression requiring treatment in Australia. However, the AAT had found that the applicant did not meet the criteria for the visa, including the requirement to genuinely intend to stay temporarily in Australia for the purpose of medical treatment, citing his extensive migration history of non-compliance, his lack of current plans for medical treatment, and his stated desire to remain in Australia with his family.

The Court ultimately dismissed the applicant's application for reinstatement. The Court found that the applicant's explanation for his non-appearance was not sufficiently credible to warrant setting aside the previous orders. Furthermore, the Court concluded that the applicant did not have a reasonably arguable prospect of success in his substantive application, given the AAT's detailed findings regarding his failure to meet the visa requirements.