Kim (Migration)

This matter concerned an appeal by Mr Jinbum Kim and Ms Thi Huyen Trang Hoang against the refusal of their applications for Student (Temporary) (Class TU) visas, subclass 500. The primary applicant, Mr Kim, was refused a visa because a member of his family unit, Ms Hoang, had previously had a visa refused within the preceding three years due to a failure to satisfy Public Interest Criterion (PIC) 4020. The Administrative Appeals Tribunal (AAT) affirmed the delegate's decision.

The central legal issue before the AAT was whether the applicants satisfied the requirements of clause 500.217 of Schedule 2 to the Migration Regulations 1994, specifically concerning PIC 4020. This criterion requires that neither the applicant nor any member of their family unit has had a visa refused within the three years prior to the application due to a failure to satisfy PIC 4020, unless the applicant was under 18 at the time of the refused visa application. The Tribunal also considered whether there were any compassionate or compelling circumstances to waive this criterion.

The Tribunal noted that the applicant had failed to respond to a request for information under s 359(2) of the Migration Act 1958 regarding the previous visa refusal. Consequently, the applicant was not entitled to a hearing before the Tribunal, as per s 359C and s 360(3) of the Act. The Tribunal proceeded to make a decision based on the available information. It found that Ms Hoang, as the secondary applicant and spouse of Mr Kim, had indeed had a visa refused within the relevant period due to a failure to satisfy PIC 4020. As the waiver provision in PIC 4020(4) did not apply in this instance, and the primary applicant did not meet clause 500.217, the secondary applicant also failed to meet the criteria for her visa.

The Tribunal affirmed the decision not to grant the applicants Student (Temporary) (Class TU) visas.