Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94

Federal Court of Australia

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 Appeal from: Kumar (formerly CWRG) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382

File number: QUD 478 of 2022

Judgment of: LOGAN, SARAH C DERRINGTON AND ANDERSON JJ

Date of judgment: 16 June 2023

Catchwords: MIGRATION – where the visa applicant, a citizen of Fiji, held a permanent residency visa as a dependent of his father who held a business visa – where the visa applicant, now an adult, left Australia on a short visit to Fiji – where the Minister's delegate refused the visa applicant a return visa to enter Australia – refusal based on failure to satisfy character test under s 501 Migration Act 1958 (Cth) – where the visa applicant's mother, an Australian citizen, sought review of visa refusal under s 347 Migration Act 1958 (Cth) under a pseudonym – where the Administrative Appeals Tribunal affirmed the delegate's refusal decision – where the applicant applied to the Federal Court for review – where the primary judge dismissed the application and ordered removal of pseudonym – where the applicant appealed to the Full Court – where the appellant sought leave to amend originating application to raise a new ground of appeal not raised in the original jurisdiction – where leave application heard as part of appeal – where the delegate adopted a formulaic approach in applying Direction 90 issued by the Minister under s 499 of the Act to the exclusion of key elements or integers presented by the appellant – circumstances in which appropriate to grant leave to raise new issue on appeal – procedural fairness denied to the visa applicant – Tribunal constructively failed to undertake statutory function of review – leave to raise these issues granted – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 applied – appeal allowed