Kim (Migration)

This matter concerned an application for review of a decision to refuse a Student (Temporary) (Class TU) visa, subclass 500 (Student) visa. The applicant, a 42-year-old female Korean citizen, had been in Australia since May 2016. The court was required to determine whether the applicant was a genuine student who genuinely intended to stay in Australia temporarily, and whether she had a strong incentive to return to her home country, or if she was using the student migration program to maintain ongoing residence in Australia.

The court considered the applicant's history, including her prior completion of a Bachelor of English Literature in Korea in 2008 and ownership of a boutique business there until December 2016. In Australia, she had undertaken several courses: a Certificate II in Business, six units towards a Certificate IV in Business, and a Diploma of Beauty Therapy. The court noted that the applicant claimed to have completed a Certificate III in Business but had not provided corroborating evidence for this. The court also acknowledged the Minister's Direction under section 499 of the Act, confirming its lawfulness and the obligation to consider its terms. However, the court affirmed its independence as a statutory body to reach its own conclusions on the merits of the case, applying established case law regarding the proper approach to guidelines, and noting that such guidelines might not be relevant if the facts presented did not engage specific matters identified by them.

The court found that the applicant was motivated by factors other than study, had spent a lengthy period in Australia, and was not satisfied that she was a genuine student with a genuine intention to stay temporarily. Furthermore, the court determined that there was no strong incentive for the applicant to return to her home country, concluding that she appeared to be using the student migration program to maintain ongoing residence. Consequently, the decision under review was affirmed.