Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The appeal in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved Mr Kumar, a citizen of India, who had his Student (Temporary) (Class TU) Student (Subclass 500) visa cancelled. Mr Kumar's visa was cancelled due to his enrolment in cookery and hospitality management courses instead of maintaining enrolment in a course that provided a qualification at the same or a higher level than the course for which the visa was granted. The appeal concerned the dismissal of Mr Kumar's application for review of the delegate’s decision cancelling his visa and the subsequent dismissal of his application for reinstatement of the review by the Administrative Appeals Tribunal (the Tribunal). The central legal issues revolved around whether the Tribunal’s decision was unreasonable, whether it failed to consider information provided by Mr Kumar, whether section 359(1) of the Migration Act 1958 (Cth) applied to such information, and whether section 360(1) required the Tribunal to invite Mr Kumar to appear in person rather than by video conference.

The court found that the Tribunal did not err in dismissing Mr Kumar's application for review, as he failed to attend the hearing without a valid reason. The Tribunal correctly considered that it was not obliged to consider information submitted by Mr Kumar in support of his reinstatement application, as it was not information obtained pursuant to section 359(1) of the Act. The court further held that the Tribunal did not fail to have regard to information provided by Mr Kumar contrary to section 359(1) because the provision does not apply to information voluntarily submitted by an applicant. The court also rejected the argument that section 360(1) of the Act required the Tribunal to invite Mr Kumar to appear in person rather than by video conference, as the Tribunal had not stipulated that the hearing occur by video conference and Mr Kumar had not expressed a preference to appear in person.

In conclusion, the appeal was dismissed. The court ordered that Mr Kumar pay the first respondent’s costs of the appeal as agreed or taxed, in accordance with Rule 39.32 of the Federal Court Rules 2011.