KIM (Migration)

This matter concerned an appeal by Ms Bipchorong Kim against the refusal of her application for a Student (Temporary) (Class TU) visa, subclass 500. The original decision to refuse the visa was made by a delegate of the Department of Immigration and Border Protection on 7 August 2017, on the basis that Ms Kim was not considered a genuine temporary entrant. The Administrative Appeals Tribunal was required to determine whether Ms Kim met the relevant criteria for the visa at the time of the Tribunal's decision.

The central legal issue before the Tribunal was whether Ms Kim satisfied the enrolment requirements for a Student visa. This differed from the issue before the original decision-maker, which had been whether Ms Kim was a genuine temporary entrant. Ms Kim confirmed in her evidence and a questionnaire that she was not currently enrolled in a registered course of study and had last been enrolled in October 2018. The Tribunal was therefore required to assess if this lack of current enrolment meant she failed to meet the criteria for the subclass 500 visa.

The Tribunal referred to the criteria for a subclass 500 visa as set out in Part 500 of Schedule 2 to the Regulations. Specifically, Clause 500.211 requires that at the time of the decision, the applicant must be enrolled in a course of study. A "course of study" is defined as a full-time registered course, and a "registered course" is one provided by an institution registered under the Education Services for Overseas Students Act 2000 to provide courses to overseas students. As Ms Kim was not currently enrolled in such a course, she did not satisfy this primary criterion.