Hong (Migration)

The applicant, Hong, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed the refusal of his Student (Temporary) (Class TU) visa, subclass 500. The AAT had affirmed the delegate's decision to refuse the visa on the grounds that the applicant was not a genuine temporary entrant and that he was not enrolled in a course of study at the time of the delegate's decision.

The primary legal issues before the court were whether the AAT had erred in law by affirming the delegate's decision, specifically concerning the applicant's failure to respond to a notice issued under s 359(2) of the *Migration Act 1958* (Cth), which resulted in the applicant not being entitled to appear before the Tribunal. The court also considered whether the AAT had erred in its assessment of the applicant's genuine temporary entrant status and his enrolment status at the time of the delegate's decision.

The court found that the AAT had not erred in law. It held that the applicant's failure to respond to the s 359(2) invitation meant he was not entitled to present his case orally or in writing to the Tribunal, and the Tribunal was therefore entitled to proceed with the review based on the available material. Furthermore, the court agreed with the AAT's findings that the applicant had not satisfied the criteria for a genuine temporary entrant and that he was not enrolled in a course of study at the time of the delegate's decision, which were valid grounds for the visa refusal.