KIM (Migration)

This matter concerned an application for review of decisions not to grant Student (Temporary) (Class TU) visas (Subclass 500) to two Korean citizens. The primary applicant, a 38-year-old male, and his partner, the secondary applicant, aged 36, had arrived in Australia in May 2011. The core of the dispute revolved around the secondary applicant's eligibility for a student visa, specifically whether she met the requirement of being enrolled in a registered course of study.

The legal issue before the Tribunal was whether the secondary applicant satisfied the primary criteria for a student visa, as stipulated by the *Migration Regulations 1994* (Cth), particularly clause 500.211, which mandates current enrolment in a registered course of study. The Tribunal was required to determine if the evidence presented demonstrated that the applicant was indeed enrolled in such a course, as this criterion is foundational to the consideration of all other primary criteria for a student visa.

The Tribunal reasoned that the requirement for current enrolment in a registered course of study is a non-negotiable prerequisite for the grant of a student visa. The secondary applicant's response to a notice issued under s 359(2) of the *Migration Act 1958* (Cth) indicated she was not currently enrolled. While she provided a Confirmation of Enrolment for a Diploma of Hospitality Management due for completion in April 2020, the Tribunal noted that this course had concluded and she did not hold a current enrolment. The Tribunal concluded that without evidence of current enrolment, the primary criteria under clause 500.211 were not met, rendering further consideration of other criteria administratively futile.

Consequently, the Tribunal affirmed the decisions not to grant the Student (Temporary) (Class TU) visas to both the primary and secondary applicants, as the essential criterion of current enrolment was not satisfied by the secondary applicant.