Kumar v Minister for Immigration and Citizenship - Subclass 187 Visa Appeal Dismissed

Original Word Document (81.8 KB) Federal Court of Australia

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

| Appeal from: | Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1269 |

| File number(s): | SAD 264 of 2024 |

| Judgment of: | O'SULLIVAN J |

| Date of judgment: | 20 April 2026 |

| Catchwords: | MIGRATION — appeal from decision of the Federal Circuit and Family Court of Australia (Div 2) dismissing application for judicial review of decision of Administrative Review Tribunal not to grant subclass 187 visas — where appellants had failed to satisfy cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) — where there is no approved nomination for the purposes of cl 187.233 such that visas sought by the appellants could not be granted in any event — no error on the part of the primary judge — appeal dismissed |

| Legislation: | Migration Act 1958 (Cth), s 359A

Federal Court Rules 2011 (Cth), r 9.63

Migration Regulations 1994 (Cth), reg 5.19(4), Schedule 2 - cl 187.233 |

| Cases cited: | Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1269 |

| Division: | General Division |

| Registry: | South Australia |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 42 |

| Date of hearing: | 10 March 2026 |

| Counsel for the Appellants: | The first appellant appearing in person |

| Counsel for the First Respondent: | Ms T Rosetto |

| Solicitor for the First Respondent: | Sparke Helmore Lawyers |
ORDERS

| SAD 264 of 2024 |

| BETWEEN: | SANJEEV KUMAR

First Appellant

NEELAM RANI

Second Appellant

ANIKA CHOUDHARY

Third Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | O'SULLIVAN J |
| DATE OF ORDER: | 20 april 2026 |
THE COURT ORDERS THAT:

1. The first appellant is appointed litigation representative for the third appellant pursuant to r 9.63 of the Federal Court R ules 2011 (Cth).

2. The first respondent’s name is amended to ‘Minister for Immigration and Citizenship’.

3. The appeal is dismissed.

4. The first and second appellants are to pay the first respondent’s costs fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1 The appellants are citizens of India. Mr Kumar arrived in Australia in 2009 as the holder of a student visa and Ms Rani on 7 December 2014 on a tourist visa. The third appellant is the child of Mr Kumar and Ms Rani and was born in Australia in 2016.

2 The first appellant applied for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187 visa) on 27 September 2018 via the Direct Entry Scheme. Ms Rani and the third appellant form part of the family unit on Mr Kumar’s 187 visa application.

3 The S ponsor, OM Cleaning Services SA Pty Ltd, listed Mr Kumar as its nominee on its nomination application. On 27 August 2019, a delegate refused the Sponsor’s nomination application. Initially, the Sponsor sought a review of that decision but then withdrew it.

4 On 26 September 2019, the delegate refused the appellants’ 187 visa applications. Insofar as Mr Kumar was concerned, the delegate was not satisfied that he met the criteria in cl 187.233 of Schedule 2 to the M igration R egulations 1994 (Cth).

5 On 15 October 2019, the appellants applied to the Administrative Appeals T ribunal for a review of the delegate’s decision. On 20 May 2020, the Tribunal affirmed that decision.

6 The appellants applied for judicial review of the Tribunal’s decision to the F ederal C ircuit and F amily C ourt o f A ustralia (Div 2). On 28 November 2024, the FCFCoA dismissed the application: Kumar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1269.

7 The appellants now appeal from that judgment.

8 The appellants’ application to the FCFCoA for judicial review on 5 June 2020 was made on two bases:

(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.

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

The application before the primary judge

10 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.

11 Pursuant to cl 187.233 of Schedule 2 to the R egulations, 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).

12 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).

13 The primary judge also noted that the Tribunal had requested information from Mr Kumar but that no information was forthcoming.

14 After hearing from the first appellant and identifying the types of jurisdictional error, the Court considered the two grounds of review.

Ground one

15 Mr Kumar had argued before the primary judge that the Tribunal failed to consider relevant documents, being the Sponsor’s financial documents.

16 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.

Ground two

17 By the second ground, Mr Kumar had argued that the Tribunal did not provide him with sufficient time to respond.

18 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.

19 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)

20 Accordingly, the Tribunal proceeded on the information before it and in the absence of the appellants.

21 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.

22 The primary judge dismissed the application for judicial review.

Grounds of appeal

23 The appellants advanced three grounds of appeal. The first two grounds mirror those before the primary judge.

24 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.

25 Rather than addressing that issue, the first appellant informed the Court as to his present family circumstances and his complaints against the Sponsor.

Grounds one and two

26 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.

27 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.

28 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.

29 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.

30 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.

Ground three

31 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.

32 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.

33 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]

34 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.

35 The Minister objected to the first appellant raising this ground, however the Minister did not suggest any prejudice.

36 I am prepared to consider ground three and to the extent the appellants require leave to raise it, that leave is granted.

37 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.

38 It is for that reason that ground three fails.

Conclusion

39 The appeal is dismissed.

40 The Minister seeks lump sum costs fixed in the amount of $5,000. I consider that sum is reasonable.

41 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.

42 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 R ules 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. |
Associate:

Dated: 20 April 2026