Kim (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa by a woman from South Korea. The core of the dispute was whether the applicant genuinely intended to stay in Australia temporarily, as required by the criteria for the visa. The Tribunal was tasked with reviewing the decision to refuse the visa.

The legal issues before the Tribunal were whether the applicant met the primary criteria for a Subclass 500 visa, specifically clause 500.212 of Schedule 2 to the Migration Regulations 1994, which mandates that an applicant must genuinely intend to stay in Australia temporarily. This assessment required the Tribunal to consider the applicant's circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958.

The Tribunal found that the applicant, a 39-year-old woman, had only completed one course in nearly four years since being granted a student visa in 2016. Despite enrolling in subsequent courses after her initial college lost its registration, her current enrolment was set to conclude in July 2021. Crucially, the applicant provided no further information or evidence to the Tribunal in response to an invitation to do so, relying solely on the material in the Department's file. The Tribunal applied Direction No. 69, which guides decision-makers on factors to consider when assessing the genuine temporary entrant criterion, including the value of the proposed courses to the applicant's future and incentives to stay or return. Given the lack of evidence from the applicant and her study history, the Tribunal concluded that the criteria for the visa were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa.