Kumar v Minister for Immigration and Citizenship [2026] FCA 278

The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

1. On 15 December 2017, Mr Kumar applied for a waiver of condition 8503, stating that he would apply for a Medical Treatment visa if the condition were waived. A condition could only be waived if, after the appellant had been granted the visa that was subject to the condition, "compelling and compassionate circumstances" had developed: (i) over which the appellant had no control; and (ii) that resulted in a major change to the person's circumstances - see s 41(2A) of the Migration Act 1958 (Cth); reg 2.05(4) of the Migration Regulations 1994 (Cth). A delegate of the Minister refused the application, accepting that compassionate circumstances existed, but not accepting that compelling circumstances existed: AB, Tab 1.03(a). The circumstances were that the appellant's brother had recently died in Fiji and, as a result, the appellant was depressed and wanted to remain in Australia to receive counselling.
2. Mr Kumar sought judicial review of the delegate's decision in the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court). The one ground of review was:

The delegate failed to consider that it is not possible to apply for a medical treatment visa because of my condition 8503 and that my circumstances are compelling and strong.

1. The application was dismissed: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 255. As to the ground of review (and the appellant's written submissions), the primary judge concluded that:

(a) the delegate must have appreciated that it was not possible for the appellant to apply for a medical treatment visa because of condition 8503, that being the point of the application for waiver: J[19] and [20];

(b) the appellant's contention that his circumstance were "compelling and strong" amounted to no more than an invitation for the Court to embark on impermissible merits review: J[21].

1. Given that Mr Kumar was unrepresented, the primary judge examined the delegate's reasons for unarticulated jurisdictional error, finding none: J[22].
2. Mr Kumar now appeals. At the commencement of the hearing, I explained to the appellant that:

(a) it was the delegate's task to take a view about the merits of the appellant's application;

(b) in undertaking judicial review of the delegate's decision, the Federal Circuit Court was not undertaking the same task as the delegate or the Minister, and was not undertaking the task of deciding whether condition 8053 should be waived in the appellant's circumstances. Rather, the Federal Circuit Court's task was to consider whether the delegate had considered the appellant's waiver application according to law - in other words, according to what the law requires of such a decision-maker when undertaking that particular task;

(c) the task of this Court, when exercising its appellate jurisdiction, is to ascertain whether the Federal Circuit Court erred in making the orders which it did, based on the grounds of appeal on which the appellant relies.

1. Mr Kumar's grounds of appeal are:
   1. His Honour was kind to me but the Court failed to interrupt [sic - interpret] compelling circumstances and accept me to lodge an application for medical treatment visa in Australia because of condition 8503. The Act does not explain compelling circumstances but I do believe that my circumstances were compelling due to my sickness and the fact that my brother died in Fiji while His Honour and the Department acknowledged the circumstances as compassionate, both failed to take it as compelling according to the submission I provided to the Court.
   2. I hope that the Federal Court of Australia will take different views and approve my circumstances as compelling.
2. The appellant's grounds of appeal comprise two main components. First, Mr Kumar may be understood as contending that the Federal Circuit Court failed to conclude that the delegate misunderstood the meaning of the word "compelling" in reg 2.05(4) or the concept of "compelling and compassionate circumstances". Secondly, Mr Kumar invites this Court to take a different view of whether his circumstances are sufficiently compelling.
3. As to the first question, the delegate has not been shown to have misinterpreted the meaning of the word "compelling" or the concept of "compelling and compassionate circumstances". It is unnecessary to add to the primary judge's discussion of this topic.
4. As to the second question, just as was the position for the Federal Circuit Court, this Court cannot perform the delegate's task of embarking on a consideration about whether to grant the waiver.
5. Mr Kumar also relied on written submissions. These contended that the primary judge failed to consider the medical evidence and the non-availability of adequate treatment in Fiji. Mr Kumar contended that the failure to consider these matters was not logical or reasonable.
6. The primary judge's role was confined to an examination of whether the delegate exceeded the statutory task or failed properly to perform the statutory task. The primary judge took into account the material before the delegate in concluding that no jurisdictional error had been established. The primary judge could not have substituted his view of the merits if his Honour had taken a different view about them. The primary judge did not err in the ways contended in the written submissions.
7. The primary judge's conclusions (set out at [4] and [5] above) were each correct. The delegate's decision was not affected by jurisdictional error. Her decision was open on the material. There was no basis for the primary judge to disturb the delegate's decision. Mr Kumar has not established any error on the part of the primary judge.
8. It follows that the appeal must be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.