Federal Court of Australia

Kumar v Minister for Immigration and Citizenship [2026] FCA 1714

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the sum of $4,000.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an application for leave to appeal from orders made on 6 February 2026 by a judge of the Federal Circuit and Family Court of Australia (Division 2): Kumar v Minister for Immigration and Citizenship [2026] FedCFamC2G 137 (PJ). By those orders, the primary judge dismissed an application for review of a Registrar’s summary dismissal of the applicant’s judicial review proceeding.

2    When the matter was called on earlier today the applicant, who appeared by video, was unrepresented and declined to make any oral submissions (and he had not previously made any written submissions), while Mr A Westenberg, the solicitor for the first respondent, appeared for the Minister and relied upon the outline of submissions filed on 15 October 2026. Although I had reviewed the material filed, I considered it appropriate to stand the matter down to this afternoon to re-examine the papers to ascertain whether there was anything that could be arguably advanced to support an application for leave to appeal. Having done so, I am in a position to deliver judgment.

3    On 22 May 2023, the applicant applied for a Student (Class TU) (Subclass 500) visa. A delegate of the first respondent (Minister) refused the application on 17 July 2023 because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia, as then required by cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth). The applicant sought merits review on 1 August 2023 in the Administrative Appeals Tribunal, the predecessor of the second respondent (Tribunal): PJ (at [5]–[7]).

4    On 11 November 2024, the Tribunal requested information concerning the applicant’s studies and his entry and stay in Australia as a student. The applicant did not respond. On 11 December 2024, the Tribunal made an order under s 79(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) directing him to complete and provide a Student Visa Information form within 35 days. The accompanying correspondence warned that non-compliance could result in dismissal or determination of the review without a hearing: PJ (at [9]–[14]).

5    The applicant did not comply, seek an extension of time or otherwise communicate with the Tribunal. On 11 March 2025, approximately three months after making the direction, the Tribunal dismissed the application under s 100 of the ART Act. Its reasons recorded that the applicant had been afforded a reasonable period to comply but had failed to do so: PJ (at [15]–[16]); Tribunal dismissal reasons (at [5]–[8]).

6    The applicant was notified of the dismissal and informed that he could apply to the Tribunal for reinstatement by 8 April 2025. He did not do so but instead, on 18 March 2025, lodged an application for judicial review in the Court below. On 28 April 2025, the Tribunal confirmed the dismissal under s 368C of the Migration Act 1958 (Cth) (Act): PJ (at [17]–[21]).

7    A Registrar summarily dismissed the judicial review proceeding on 19 August 2025. The applicant then sought review under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That review required the primary judge to consider the summary dismissal application afresh, rather than merely examine the Registrar’s decision for error: PJ (at [23]–[24], [29]).

8    Her Honour concluded that the judicial review proceeding had no reasonable prospect of success. In doing so, she considered not only the applicant’s assertions that he had been enrolled and had provided valid documents when applying for the visa, but also whether the Tribunal should have determined the review without a hearing and whether the court application could have been treated as a request for reinstatement: PJ (at [43]–[55]).

B    THE APPLICATION FOR LEAVE

9    The parties proceeded on the footing that the primary judgment was interlocutory, so that leave to appeal is required under ss 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth). I will proceed on this basis, which seems to me to be correct, but, in any event, the correctness of that characterisation does not matter because, for the reasons that follow, the proposed grounds disclose no arguable error whether or not leave is required. Where leave is required, the familiar considerations are whether, in all the circumstances, the decision is attended by sufficient doubt to warrant reconsideration on appeal and whether, supposing the decision to be wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 (at 398–399 per Sheppard, Burchett and Heerey JJ). Those considerations are cumulative and interrelated.

10    The applicant advances four proposed grounds. First, he challenges the conclusion that the judicial review proceeding had no reasonable prospect of success. Secondly, he contends that the Tribunal constructively failed to exercise its jurisdiction by dismissing the review under s 100 without considering determination under s 106(4). Thirdly, he contends that the Tribunal did not form the necessary conclusion that he had failed to comply within a reasonable time (the text of this ground as filed is truncated, but its evident sense is plain). Fourthly, he challenges the confirmation decision because he had commenced judicial review proceedings within the reinstatement period.

11    I have considered those grounds according to their substance, notwithstanding imperfections in their expression. The Minister accepts that the question whether the Tribunal should have proceeded under s 106 was raised before the primary judge, and that, although the applicant did not advance Ground Four below, her Honour considered it: PJ (at [55]). No question therefore arises as to whether the applicant requires leave to raise a new point on appeal. None of the grounds discloses sufficient doubt about the correctness of the primary judgment.

C    CONSIDERATION

12    Ground One identifies no independent error. Its substance depends upon the more specific complaints advanced in the remaining grounds. I therefore turn to those complaints.

13    Ground Two misconceives the relationship between ss 100 and 106 of the ART Act. Section 100 permits the Tribunal to dismiss an application where the applicant fails, within a reasonable time, to proceed with the application or comply with the Act or an order of the Tribunal. Section 106(4), read with s 106(1), permits determination without a hearing where a party has failed to comply within a reasonable time and it appears to the Tribunal that the issues can adequately be determined in the absence of the parties. Nothing in those provisions makes consideration or exercise of the latter power a condition precedent to dismissal under s 100.

14    That does not mean the Tribunal’s choice of procedural course is immune from review for legal unreasonableness. But the existence of an alternative course does not itself establish error. The question must be considered in the statutory and factual context. As the Full Court explained in Minister for Immigration and Citizenship v AMU19 [2026] FCAFC 29 (at [40]–[44]), the Tribunal’s reasons and the procedural circumstances may inform that inquiry, notwithstanding the absence of an obligation to give separate reasons for an anterior procedural decision.

15    Here, the primary judge addressed the alternative course expressly. Her Honour inferred from the Tribunal’s direction seeking further information that it was not satisfied the issues could adequately be determined on the existing material: PJ (at [49]–[51]). That inference was available in the circumstances. The Tribunal was seeking current information relevant to a visa application made some eighteen months earlier. The applicant neither supplied it nor explained why the review should proceed without it.

16    Further, the Tribunal did not dismiss the application immediately upon expiry of the 35-day period. It waited approximately three months after making the direction. The applicant had been warned of the possible consequences of non-compliance, had not sought further time and had not responded to either the earlier request or the formal direction. Dismissal also preserved the statutory opportunity to seek reinstatement and explain the non-compliance. Those circumstances plainly supplied an evident and intelligible justification for the course adopted. Ground Two provides no basis for leave.

17    Ground Three can be dealt with shortly, since the Tribunal expressly considered that the applicant had been afforded a reasonable period to comply and stated that it was satisfied he had failed within a reasonable time to comply with its order: Tribunal dismissal reasons (at [6]–[7]). The relevant condition cannot, therefore, be said to have been overlooked.

18    Nor does the chronology disclose an arguable basis for challenging that conclusion. The applicant was initially asked for information in November 2024, directed to provide it within 35 days in December 2024 and did not respond before dismissal in March 2025. The primary judge correctly observed that there was no suggestion the Tribunal had proceeded in haste: PJ (at [48]). Ground Three therefore does not expose any arguable error in the primary judgment.

19    Ground Four concerns a different statutory process. Section 368C(1) of the Act displaces s 102 of the ART Act in relation to the relevant migration review. Section 368C(2) permits an applicant to apply to the Tribunal for reinstatement within 28 days after receiving notice of dismissal. If no such application is made within that period, s 368C(5) requires the Tribunal to confirm the dismissal.

20    Commencing judicial review proceedings within that period did not, without more, constitute an application to the Tribunal for reinstatement. Having received a copy of the court application from the Department, the Tribunal considered whether it, or any of its contents, could be treated as a request for reinstatement: Tribunal confirmation reasons (at [6]–[13]).

21    The Tribunal explained why it could not be so treated. The application sought judicial remedies against the dismissal, did not indicate that a reinstatement request had mistakenly been directed to the Court and did not explain the applicant’s failure to comply with the direction. The applicant had not otherwise contacted the Tribunal in response to the dismissal notice. In those circumstances, the primary judge’s conclusion that the suggested reinstatement argument had no reasonable prospect of success is not attended by sufficient doubt: PJ (at [55]).

22    The confirmation reasons did contain an error, in that they described the original dismissal as having occurred under s 99 for non-appearance, rather than under s 100 for non-compliance, but her Honour correctly held that the error was immaterial, since s 368C applies to dismissals under either provision and the balance of the confirmation reasons demonstrates that the Tribunal understood the applicant’s failure to comply with the direction: PJ (at [55]). The same may be said of the passing reference in those reasons to the direction as having been given on 12 December 2024, rather than 11 December 2024: Tribunal confirmation reasons (at [12]–[13]). Neither slip discloses an arguable material error, and Ground Four therefore provides no basis for leave.

D    CONCLUSION

23    None of the proposed grounds exposes an arguable error warranting reconsideration of the primary judgment, and the applicant has not established sufficient doubt. Nor has he demonstrated substantial injustice of the kind relevant to the leave discretion: his affidavit of 11 February 2026 offers only the bare assertions that his prospects are good and that the Tribunal and the Court below fell into jurisdictional error (at [3]–[4] of that affidavit), and his wish to obtain a student visa does not answer the deficiencies in the proposed appeal.

24    The application for leave to appeal must therefore be dismissed. In light of that conclusion, it is unnecessary to deal with the applicant’s request for an order dispensing with compliance with r 35.13 of the Federal Court Rules 2011 (Cth). The Minister seeks costs fixed in the sum of $4,000, which he submits is less than the amount recoverable in a short form bill for a notice of appeal in a migration matter dismissed after hearing (item 15 of Sch 3 to the Federal Court Rules) and is proportionate to the nature and complexity of the case (outline at [37]). Having regard to the limited complexity of the proceeding, I am satisfied that it is reasonable and proportionate, and I will order that the applicant pay the first respondent’s costs fixed in that amount.

Associate:

Dated: 12 November 2026