Kim (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa. The core dispute revolved around whether the applicant was a genuine applicant for entry and stay as a student, as required by the Migration Regulations.

The Tribunal was tasked with determining if the applicant satisfied clause 500.212 of Schedule 2 to the Migration Regulations, which mandates that an applicant must be a genuine applicant for entry and stay as a student. This involves assessing whether the applicant genuinely intends to stay in Australia temporarily and intends to comply with visa conditions, considering various factors including their circumstances and immigration history.

The Tribunal noted that on 13 April 2018, it requested specific information from the applicants regarding the first-named applicant's proposed course of study and intentions for their stay in Australia as a student, setting a deadline of 27 April 2018. The applicants failed to respond to this request or seek an extension of time. Consequently, the Tribunal applied section 359C of the Migration Act, which, in these circumstances, meant the applicants were not entitled to appear before the Tribunal. The Tribunal proceeded to make a decision without further information, concluding that it was not satisfied that the applicant met the genuine applicant criteria under clause 500.212.

As a result of not being satisfied that the applicant met the genuine applicant criteria, the Tribunal found that the requirements for the grant of a Subclass 500 (Student) visa were not met. The applicants did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the Tribunal affirmed the decision not to grant the applicants the Student (Temporary) (Class TU) visas.