Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 897

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs in the amount of $5,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    This appeal relates to the refusal of a Student (Temporary) (class TU) (subclass 500) visa (student visa). The first appellant appeals the orders made in the Federal Circuit Court (Division 2) in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1260 (PJ) where Judge Corbett dismissed the application by each of the named appellants for application for judicial review of a decision made by the Administrative Review Tribunal and ordered fixed costs.

2    The appellant filed this appeal on 11 December 2024. (It was not docketed to me until 25 May 2026. I promptly made procedural directions and listed the hearing for today. The delay in docketing the matter has been explained internally as related to a backlog of appeals accumulated during the COVID-19 pandemic as well as significant re-staffing within the Court Migration Team).

3    The notice of appeal outlines two grounds of contended error:

1.     The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false.

2.     The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in misapprehending the evidence and then use its erroneous findings about the evidence [sic]

4    The appellant relies on her written submissions filed on 15 June 2026.

5    Despite that the Circuit Court dismissed the application of four named applicants, the appeal is brought only by Satinder Kaur (the appellant) who seeks orders that the Circuit Court’s orders be set aside, the matter be remitted to the Tribunal and that the Minister pay the appellant’s costs of the appeal. As I explain, leave is required to raise these new grounds, which I refuse, and in any event the grounds are of no merit.

Background

6    The appellant is a citizen of India who arrived in Australia on 4 November 2008 on a visa. The student visa expired on 11 April 2011, with the appellant being granted a Temporary Skilled (Provisional) (Onshore) Graduate Work Stream visa which subsequently expired on 15 June 2017.

7    On 14 June 2017 the appellant applied for a Student (Temporary) (class TU) (subclass 500) visa. The second, third and fourth applicants below are the husband and children of the appellant, who are included in the student visa application. In these reasons it is convenient to refer to the family as the applicants.

8    On 9 August 2017 a delegate of the Minister refused to grant the appellant a student visa.

9    On 11 February 2019 the Tribunal invited the applicants to a hearing in person on 1 March 2019.

10    On 28 February 2019 the applicants, through their migration agent, sought to postpone the hearing due to medical reasons for which the appellant provided a medical certificate. The presiding member of the Tribunal was not prepared to grant an adjournment.

11    On 5 March 2019 the Tribunal informed the applicants that their application for review had been dismissed.

12    The applicants’ representative applied to reinstate the application for review on 19 March 2019. On 4 April 2019 the Tribunal reinstated the application pursuant to s 362B(1C) of the Migration Act 1958 (Cth). On 9 May 2019 the Tribunal invited the applicants to attend a hearing on 24 May 2019. The applicants did not appear.

13    On 24 May 2019 the Tribunal again notified the applicants that their application had been dismissed.

14    On 6 June 2019 the representative of the applicants requested that the application for review be reinstated by the Tribunal and provided a medical certificate. On 12 June 2019 the Tribunal once again reinstated the application. On 13 June 2019, the Tribunal invited the applicants to attend a hearing on 28 June 2019. There was no show by the applicants or their representative.

15    On 1 July 2019 the Tribunal informed the applicants that pursuant to s 362B(1A)(b) of the Act their application was dismissed for non-appearance.

16    On 12 July 2019 the representative of the applicants provided further medical certificates which stated the appellant was unfit for work on 28 June 2019, 1 July 2019 and 8 to 9 July 2019.

17    On 3 December 2019 the Tribunal notified the applicants that their application to reinstate was refused and affirmed the decision under review. On 27 November 2019 the Tribunal provided written reasons.

18    On 18 December 2019 the appellant, acting as a self-represented litigant, filed an application for judicial review with Circuit Court on the following grounds of review:

(1)     The Tribunal made a jurisdictional error whilst making decision on application.

(2)     The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.

(a).     In considering whether the visa applicant met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact [sic] that the circumstances of the case were beyond the [appellant]’s control.

(b).     The visa applicant was not at fault and yet was affected by exceptional circumstances

19    On 26 February 2020, the appellant filed a notice of address of service for her solicitor. On 8 April 2020 timetabling orders for the matter were made and the appellant was appointed litigation guardian for the third and fourth applicants.

20    On 4 September 2024, the review application was listed for 24 October 2024. The applicants did not file and serve an amended application or any further affidavits, submissions or a supplementary court book, despite orders requiring those steps to be taken.

21    On 17 October 2024 the solicitor for the applicants filed a notice of intention to withdraw as lawyer.

22    On 24 October 2024 the appellant appeared at the hearing self-represented. The appellant sought an adjournment of the hearing for six to eight weeks to instruct a new solicitor. The Minister opposed the adjournment application. The primary judge refused to adjourn the hearing.

23    Briefly, the primary judge was not satisfied with the appellant’s explanation in circumstances where the application for review was filed on 18 December 2019 and no evidence was provided as to why the applicants’ former solicitor ceased acting days prior to the final hearing date. The appellant provided no evidence about attempts to secure alternative representation nor why the orders of 8 April 2020 had been ignored. The hearing proceeded.

24    Submissions were made by the appellant as to her poor health which resulted in the applicants’ non-attendance at the hearings before the Tribunal. The Minister submitted that the evidence provided by the appellant regarding their non-attendance was insufficient and that it could not be said that, in those circumstances, no rational or logical decision maker could arrive at the same decision on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ).

25    On 27 November 2024, the primary judge published his reasons for making the presently impugned orders.

Determination

26    The appeal grounds agitate matters that were not put to the primary judge. And, the appellant’s written submissions assert three more new grounds untethered from the appeal grounds. Leave to argue the new grounds is required, which the Minister opposes because the grounds are without merit and to bring new grounds of appeal in appellate proceedings undermines the structural integrity of the appellate process: PXYJ v Minister for Home Affairs [2018] FCAFC 193 at [16] (Barker, Banks-Smith and Colvin JJ); CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 at [16]-[20] (Kenny, Davies and Banks-Smith JJ).

27    I have decided to refuse leave to raise the new grounds in the notice of appeal and in the appellant’s written submissions. None of the grounds as stated or foreshadowed are of merit and for that reason it is inexpedient in the interests of justice to grant the indulgence that is required.

28    Ground one of the notice of appeal is not particularised nor expanded upon in the appellant’s submissions.

29    As correctly submitted for the Minister the ground is misconceived. The Tribunal did not find the appellant’s evidence to be false. Rather, the Tribunal was not satisfied that evidence contained the requisite specificity to meet the threshold for the application to be reinstated. The primary judge was concerned with a review ground (exposed in the appellant’s oral submissions) to the effect that the Tribunal committed jurisdictional error in refusing the reinstatement application. The primary judge carefully interrogated that ground and determined it to be without merit: PJ [55]-[74]. His Honour’s reasons are flawless. The appeal ground fails to engage with what the primary judge did and accordingly it fails.

30    The second ground in the notice of appeal fails for similar reasons. There is no identification of what finding of the Tribunal constituted jurisdictional error and why the primary judge erred in failing to notice the contended error.

31    Next there are the three new grounds foreshadowed in the appellant’s written submissions. The first contends that the Tribunal imposed an unreasonable evidentiary standard on the appellant regarding the requirement to provide further medical evidence beyond medical certificates to substantiate the medical claims. The second contends that the Tribunal failed to engage with the substance of the medical evidence. The third contends that the primary judge erred in “concluding that the Tribunal's exercise of discretion was legally reasonable”.

32    As to the first, the Minister is correct to submit that the Tribunal’s discretion pursuant to s 362B(1C)(a) of the Act to reinstate the application was not unreasonably exercised. The primary judge comprehensively explained why at PJ [55]-[74] and this proposed ground fails to engage with why the primary judge erred in so concluding. As such the ground misunderstands the basal function of this Court on appeal from the Circuit Court which is the correction of error. The appellant argues in support of the second foreshadowed ground that the Tribunal failed to engage with the central question; that is the existence of differing medical conditions across various dates did not undermine that the appellant was unwell on each occasion. The appellant’s submission continues that the Tribunal failed to engage with the substance of the appellant’s explanation. This is a bare attempt to engage with the merits of the Tribunal decision to refuse the third reinstatement application. The appellant makes no attempt to identify jurisdictional error.

33    The third foreshadowed ground is a rehash of the legal unreasonableness ground that the primary judge dismissed. There is no identification of where the primary judge erred in dismissing that contention.

34    Thus, as none of the actual or foreshadowed appeal grounds are of any merit, I refuse leave to amend and the appeal is dismissed. Costs must follow the event. The Minister seeks costs fixed in the amount of $5,000. The claim is reasonable and this is not an appropriate case to require the Minister to incur additional expense by requiring a taxation.

Associate:

Dated:    9 July 2026

SCHEDULE OF PARTIES