Nangole (Migration)

[2024] AATA 3867

Nangole  (Migration) [2024] AATA 3867 (19 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emmanuel Nangole

REPRESENTATIVE:  Mr Mario Adrian Amor

CASE NUMBER:  2314930

HOME AFFAIRS REFERENCE(S):          BCC2023/4146038

MEMBER:David McCulloch

DATE:19 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 April 2024 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – criminal convictions – driving offences, fines and disqualification – discretion to cancel visa – circumstances of offences – age, no prior convictions, remorse, guilty plea and reduced sentence – study record – good progress and close to completing course – work in sector with demonstrable need – hardship if visa cancelled – supporting statements and character references – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Kenya, born on [Date]. The visa was granted on 17 June 2022 for a stay period until 17 September 2024.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 8 August 2023. The applicant provided a response on 8 August 2023.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 15 April 2024 at 9.30am to give evidence and present arguments. The hearing was held by video using Microsoft Teams given that the applicant was in South Australia and the Tribunal Member in Sydney. The applicant communicated in English.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth). In the present case, reg 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

10. The NOICC indicated that on 10 July 2023 the applicant was convicted of three offences by the Magistrates Court of South Australia. The convictions and sentences follow:

    ·offence of Due Care – Basic Offence with a sentence of a fine in the sum of $100

    ·offence of Fail To Comply With Direction – Alcotest/breath Analysis with a sentence of fine in the sum of $1100

    ·Drive With Excess Blood Alcohol with a fine in the sum of $1100. In addition the Defendant is to be disqualified from holding or obtaining a licence to drive for 12 months.

11. In the hearing ­the applicant agreed to having these three convictions against him.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

13. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (that is, consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

14. The Tribunal notes the following from the written response to the NOICC provided on 8 August 2023. The applicant apologises for what has happened. He acknowledges his mistake on 13 March 2023. His negligence cannot be excused. The event should not be a judgement of the applicant’s entire character. He is honest, hard-working, respectful and empathetic. The applicant has otherwise abided by Australian rules. He has followed the conditions of the court including the payment of fines. The applicant asks for a second chance and to be able to finish his studies. He indicates that he has just started his research work. He has attended all of his classes. The applicant can implement his studies in Australia and in his home country. Cancelling the visa will limit the assistance he will be able to provide in his community.

15. The applicant indicates that he does not have a family but his goal has been to have one. He is an only child and has nowhere to go apart from working to finish his studies and gaining experience. This is his only chance to be successful in life. The applicant again asks for a second chance. The applicant indicates that he works as a support worker and has never broken any work rules. Cancelling the visa will remove his ability to help people through his work.

16. Provided to the Tribunal was a submission on the applicant’s behalf attaching the following documents (as summarised in the submission):

    a. Letter dated 18 March 2024 signed by Jessie Yang, Student Service Adviser, University of South Australia (“Bonafide Letter_Nangole, Emmanuel Wamalwa 110382172)

    b. Letter dated 4 April 2024 signed by John Kamau President Kenyan Association of South Australia (KASA) (“Character Reference KASA”)

    c. Letter dated 22 March 2024 signed by Desarae Chandler-Counsellor Student Engagement Unit, University of South Australia (“Letter for H.A Counsellor Mar 2024”)

    d. Character Reference Letter dated 7 April 2024 signed by Bilha Naomi Nang’ole

    e. Summary of Enrolments, confirming the applicant’s current enrolment at University of South Australia

    f. Recent payslips and employment contract confirming current employment as a carer

    g. Copy of Certificate III in Individual Support (Disability)

    h. Statutory Declaration signed by the Applicant 9th April 2024

    i. Nomination for alcohol interlock enrolment

17. The applicant’s statutory declaration deals with the circumstances leading to the convictions relevant to the circumstances in which the ground for cancellation is made out. The applicant indicates he was drinking on a holiday for the Adelaide Cup where he had underestimated his drinking. On his way home he caused an accident. The applicant went to check if he had hit someone or hurt anyone but no one was hurt. Police attended and the applicant was taken for a breath test which he did not perform because he was very nervous. He was then taken to the hospital for drug tests. The applicant pled guilty to the charges and the judge reduced his sentence to licence suspension of one year because he showed remorse and had no prior convictions.

18. In the hearing the applicant indicates that he takes responsibility for what occurred. The representative made oral submissions that the applicant was not used to drinking heavily and the events of the evening got away from him. The applicant referred in the hearing to his remorse.

19. The applicant has not denied his responsibility leading to the accident and offences. It is adverse to the applicant that he drove over the legal alcohol limit, had an accident and refused a breath test. This is not insignificantly reckless and non-compliant behaviour. 

20. Although reckless and dangerous behaviour, in the spectrum of criminal conduct it does not rate at the extreme end. The Tribunal makes allowances for the remorse of the applicant and that he has no other criminal convictions.

21. Having said that, the Tribunal would be looking towards a significant weight of discretionary factors in his favour in order to determine that the applicant has not obviated his right to remain in Australia and the privilege of holding a student visa.

22. In terms of hardship if the visa is cancelled, the applicant indicates in his statutory declaration and confirmed in the hearing that he has only two months remaining to finish his Master of Project Management. The applicant has provided a Record of Study from his education provider indicating 4 of 4 units with pass or higher grades in 2022, 8 of 8 units with pass or higher grades in 2023 and 4 of 4 units remaining for grades in 2024.

23. In the hearing the applicant referred to a significant hardship if he is not able to complete his current studies and the waste of about $80,000 expended so far in relation to his studies. The applicant indicated that his intention after he finishes his studies is to obtain a postgraduate visa to work for a period in Australia. At present he has intentions to return to Kenya but may assess in the future options for permanent settlement in Australia.

24. The applicant has provided a number of character references. The applicant has provided a supporting letter from Shadi Shayan who is the Master’s thesis supervisor of the applicant at the University of South Australia. He has known the applicant for a year. In the letter he attests to the applicant’s integrity and the remorse that he has for the events in question.

25. Provided also is a character reference from Mr John Kamau, the President of the Kenyan Association of Australia who has known the applicant for the past two years as a valuable member of the community. It attests to the applicant’s remorse for the events in question. It refers to the applicant undertaking counselling sessions to address the emotional impact of the incident. It refers to the applicant being trustworthy and hard-working.

26. Provided also is a support letter from Bilha Naomi Nang’ole who is the aunt of the applicant with whom the applicant lived for about eight months following his arrival in Australia. It refers to the events in question being out of character for the applicant and his emotional distress after what occurred. It refers to the harm cancelling the applicant’s visa will have on his psychological well-being. It refers to the hardship in not being able to complete his studies in Australia. It urges that the circumstances leading to the convictions be viewed as an uncharacteristic mistake.

27. Provided also is a letter from Desarae Chandler, Student Engagement Unit, University of South Australia who refers to counselling undertaken by the applicant from September to December 2023. The counselling was to enable the applicant to deal with the stress as a result of the intention of the Department to cancel the applicant’s visa. The letter refers to the remorse of the applicant for the events in question. The writer indicates that the applicant is genuine, considerate and caring towards others.

28. Evidence has also been provided by the applicant of having obtained a Certificate III in Individual Support on 13 December 2022 and a Certificate IV in Disability on 31 May 2023. A contract of employment dated 29 September 2022 is provided between the applicant and Community Living Options.

29. In the hearing the applicant confirmed his studies in these respects and that he is currently working in the disability sector.

30. Significantly in the applicant’s favour is his good progress in the Master of Project Management and that he has only months to complete the course. The Tribunal considers that it would be a very significant hardship if the applicant is unable to complete the course, limiting career opportunities and wasting significant resources in his study to date in Australia and removing further opportunities for work and more permanent pathways to stay in Australia.

31. If the visa remains cancelled the applicant would be ineligible to apply for visas onshore for a three-year period and thus would be unable to remain in or return to Australia to finish his studies in the reasonably foreseeable future.

32. The Tribunal takes into account in the applicant’s favour the character references he has provided on his behalf indicating that what happened was out of character and attesting to his good character.

33. It is in the applicant’s favour that he has gained these qualifications and is working in the disability sector for which there is a demonstrable need in Australia.

34. The Tribunal weighs discretionary factors.

35. As indicated, adverse to the applicant is that he allowed himself to drive over the limit resulting in an accident and him refusing a breath test. It is only lucky that there was no significant damage or personal injury in the accident. The Tribunal makes some allowances for the applicant in terms of his youth and that this was a first offence, as well as what the Tribunal accepts is the applicant’s genuine remorse for what occurred.

36. In the applicant’s favour is his solid progress in Australia in his Master of Project Management and the fact that he has only months to complete this course. The Tribunal considers it would be a very significant hardship if the applicant has to leave Australia without completing this course and denying him further opportunities to work in Australia and explore pathways for permanent residence.

37. In the applicant’s favour are character references attesting to his remorse for the events in question and his otherwise good character.

38. In the applicant’s favour is his initiative in obtaining other qualifications in the caring sector and being employed in this needed area.

39. Balancing discretionary factors, the Tribunal considers that matters in his favour outweigh matters adverse to him including the circumstances leading to the convictions. The Tribunal considers that it would be a disproportionate penalty to the applicant if his visa remains cancelled in light of the nature and level of the convictions in question.

40. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member