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

Mohit Kumar applied for a review of a decision by the Administrative Appeals Tribunal affirming the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision not to grant him a student visa. Kumar, an Indian citizen, had arrived in Australia on a visitor visa and had completed his Bachelor of Commerce in India. He applied for a student visa to study a series of automotive courses. The delegate refused the visa application, finding that Kumar did not intend to stay in Australia temporarily, which was a requirement for the visa. Kumar appealed to the AAT, and a bridging visa was granted, allowing him to continue his studies. After a significant delay, Kumar was informed by the AAT that he needed to provide sufficient information to satisfy them that he was genuinely applying for the visa and was enrolled in a registered course of study. Kumar provided the information, but his course enrolment had expired just one business day before the scheduled AAT hearing. Kumar sought a review of the AAT's decision, arguing that it was legally unreasonable for the AAT to refuse his request for an adjournment to obtain a new enrolment confirmation.

The court examined the legal issues, specifically whether the AAT's refusal to adjourn the hearing was legally unreasonable. The court found that the AAT had the power to adjourn the review under section 363(1)(b) of the Migration Act 1958 (Cth). The court noted that the AAT had set the hearing date just one business day after Kumar's enrolment had expired. The court concluded that it was legally unreasonable for the AAT not to grant an adjournment to Kumar to obtain a new enrolment confirmation, given the short notice of the enrolment's expiration and the potential for Kumar to have successfully completed the course. The court found that the AAT had made a jurisdictional error and issued a writ of certiorari and mandamus, quashing the AAT's decision and remitting the matter back to the AAT to be dealt with according to law.

The court ordered that the AAT's decision be quashed, a writ of mandamus be issued to require the AAT to determine Kumar's application according to law, and the Minister pay Kumar's costs of and incidental to the application in the sum of $7853.00.