Kumar v Minister for Immigration and Citizenship [2026] FCA 456

(1) The Tribunal had made a jurisdictional error by not considering documents provided during the lodgement of the nomination visa application.

(2) The Tribunal made a jurisdictional error by not giving the appellants enough time to respond.

1. Mr Kumar appeared for himself before the primary judge and represented the second and third appellants.

1. The primary judge set out the history of the matter and the Tribunal's decision at: J [1]-[29], noting that Mr Kumar sought his 187 visa in the Direct Entry Stream to work in the Sponsor's business as a customer services manager.
2. Pursuant to cl 187.233 of Schedule 2 to the Regulations, applicants for the Direct Entry Stream must be the subject of an application for approval of a nominated position: reg 5.19(4). The primary judge observed that the Tribunal had explained in its reasons that the position identified must be one that was the subject of the declaration required as part of the 187 visa application and that the position must be one in relation to which the applicant is identified in the nomination under reg 5.19(4).
3. The primary judge noted that on 21 October 2019, the Sponsor requested that its application for review of the delegate's refusal of the Sponsor's nomination application be withdrawn, and on that basis there was no valid employer nomination. Since the nominated position had not been approved, Mr Kumar could not satisfy an essential condition: cl 187.233(3).
4. The primary judge also noted that the Tribunal had requested information from Mr Kumar but that no information was forthcoming.
5. After hearing from the first appellant and identifying the types of jurisdictional error, the Court considered the two grounds of review.

1. Mr Kumar had argued before the primary judge that the Tribunal failed to consider relevant documents, being the Sponsor's financial documents.
2. Since the Sponsor had withdrawn its review application to the Tribunal, there was no valid nomination on the part of the Sponsor. On that basis, the primary judge found that this ground failed.

1. By the second ground, Mr Kumar had argued that the Tribunal did not provide him with sufficient time to respond.
2. The primary judge noted that the Tribunal invited Mr Kumar to provide further information on 16 October 2019 and again on 20 April 2020. The invitation sent on 20 April 2020 was made pursuant to s 359A of the Migration Act 1958 (Cth). Both invitations went unanswered and Mr Kumar did not seek further time to respond.
3. The significance of not responding to the s 359A invitation is spelt out in the s 359A invitation in bold print, which is that the appellants "... will lose any entitlement you might otherwise have had under the Migration Act 1958 (Cth) to appear before the [Tribunal] to give evidence and present arguments". (square brackets provided)
4. Accordingly, the Tribunal proceeded on the information before it and in the absence of the appellants.
5. On that basis, the primary judge found that the Tribunal had made the only decision available to it in circumstances where there was no approved nomination. The primary judge found no jurisdictional error was made out in respect of ground two.
6. The primary judge dismissed the application for judicial review.

1. The appellants advanced three grounds of appeal. The first two grounds mirror those before the primary judge.
2. On the appeal, the first appellant appeared on his own behalf and for the second and third appellants and was given the opportunity to explain how it was that he considered the primary judge was in error.
3. Rather than addressing that issue, the first appellant informed the Court as to his present family circumstances and his complaints against the Sponsor.

1. As noted, grounds one and two are in the same terms as grounds one and two of the application for judicial review before the primary judge.
2. As to ground one, nothing further than was initially put before the primary judge has been put before the Court on appeal. The position remains that the appellants are not the subject of an approved nomination such that a visa under the Direct Entry Scheme cannot be granted.
3. As to ground two, the primary judge set out the steps taken by the Tribunal in which it invited the appellants to provide further information pursuant to s 359A of the Act - that invitation was not taken up.
4. The primary judge was correct in finding that the failure by the appellants to take up the invitation or respond to an invitation from the Tribunal pursuant to s 359A of the Act meant they could not appear before the Tribunal nor could the Tribunal permit them to appear.
5. No error has been shown on the part of the primary judge such that grounds one and two of the appellants' notice of appeal fail.

1. Ground three is a new ground and was not raised before the primary judge. It concerns the Sponsor's withdrawal of its application for review to the Tribunal in relation to the refusal of its nomination as an employer.
2. The only basis upon which the first appellant pressed ground three was that he had met the eligibility criteria insofar as they applied to him in his personal capacity.
3. The third ground provides:

Despite having enough experience my employer withdraw nomination I was not given fair decision because I met all the eligibility criteria. [sic]

1. The relief sought is that the appellants "... want Federal Court to look into my case." The Court considers that the relief sought constitutes seeking an order remitting the matter to the Tribunal for further consideration according to law.
2. The Minister objected to the first appellant raising this ground, however the Minister did not suggest any prejudice.
3. I am prepared to consider ground three and to the extent the appellants require leave to raise it, that leave is granted.
4. Ground three is without merit because the Sponsor's nomination was refused by the delegate and absent an approved nomination, the application for the 187 visa under the Direct Entry Stream was doomed to fail.
5. It is for that reason that ground three fails.

1. The appeal is dismissed.
2. The Minister seeks lump sum costs fixed in the amount of $5,000. I consider that sum is reasonable.
3. The Minister also seeks an order that the first respondent's name be amended to the 'Minister for Immigration and Citizenship'. There will be an order accordingly.
4. Finally, since the third appellant is a child, there will also be an order that the first appellant be appointed litigation representative for the third appellant pursuant to r 9.63 of the Federal Court Rules 2011 (Cth).

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.