Gikonyo (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), by a 33-year-old female citizen of Kenya. The delegate had concerns regarding a gap in the applicant's study, specifically her failure to commence a Bachelor of Science (Nursing) after completing a Diploma of Science, and the subsequent 10-month period before recommencing study. The delegate also considered the applicant's spouse's presence in Australia, the favourable economic circumstances in Australia, and a perceived lack of substantial evidence of close family ties in Kenya, concluding that the applicant did not genuinely intend to stay temporarily in Australia. The applicant appealed this decision to the Tribunal, providing significant additional evidence.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This clause requires consideration of the applicant's circumstances, immigration history, and any other relevant matters. The Tribunal also had to consider whether the applicant intended to comply with visa conditions, although the focus of the decision was on the genuineness of her temporary stay.

The Tribunal reasoned that the applicant's course of study, a Bachelor of Health Science, was relevant and valuable for her future employment prospects in Kenya, where foreign qualifications in this field are highly regarded. The Tribunal accepted that the delay in commencing her Bachelor's degree was primarily due to her attempts to meet the English language requirements for a Nursing degree, which she ultimately did not achieve. It found these attempts reasonable, as was her subsequent decision to change her course of study. The Tribunal also considered new evidence presented by the applicant, including details of her personal circumstances such as the birth of her children and separation from her husband, as well as evidence of job opportunities and strong family connections in Kenya. Based on this comprehensive review of the evidence, the Tribunal was satisfied that the applicant met the criterion of genuinely intending to stay in Australia temporarily.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 500.212(a) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 500 (Student) visa.