Ndirangu (Migration) - [2021] AATA 4344

Ndirangu (Migration) [2021] AATA 4344 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Joseph Njoroge Ndirangu
CASE NUMBER:  2110030
HOME AFFAIRS REFERENCE(S):          BCC2021/1132273
MEMBER:Kate Millar
DATE:25 October 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 October 2021 at 12:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of several offences – family financial hardship – alcohol related offences and breaches of bail – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 359AA
Migration Regulations 1994, Schedule 4, Public interest Criterion 4013, rr 2.12, 2.43
CASES
COT15 v MIBP (No 1) [2015] FCAFC 190
Goundar v MIBP [2016] FCA 1203
Le v MIBP [2015] FCA 1473
MIBP v Le [2016] FCFAC 120

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Ndirangu came to Australia from Kenya in June 2019 on a student visa. On 7 July 2021 he was convicted of assault, contravening an intervention order, and breach of bail. As a result, a delegate of the Minister issued a notice of intention to cancel his visa, and his visa was cancelled on 30 July 2021.
Mr Ndirangu appeared before the Tribunal on 15 October 2021 to give evidence and present arguments and was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision dated 30 July 2021 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 (the Act).
The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that a ground prescribed in r.2.43(oa) existed. This ground exists where the person has been convicted of an offence against the law of the Commonwealth, a State or Territory. This ground exists if a person has been convicted of an offence regardless of the penalty imposed.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. If satisfied that a 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?
On 7 July 2021, Mr Ndirangu was convicted in the Elizabeth Magistrate’s Court of assault, contravening the terms of an intervention order, and failing to comply with a bail agreement. On 8 December 2020 he was convicted of driving under the influence.
As he has been convicted of offences against the law of a State the prescribed ground in r.2.43(oa) exists, and therefore the ground in s 116 (1)(g).
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
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 Mr Ndirangu, and considered matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
Mr Ndirangu is in Australia to study. The decision of the delegate states Mr Ndirangu’s enrolment in a Bachelor of Information Technology at the South Australian Institute of Business and Technology (SAIBT) was cancelled as he was granted a deferral on compassionate grounds. The delegate also records an enrolment was approved in a Bachelor of Information Technology (Networking and Cybersecurity) was approved on 26 March 2021, with a start date of 18 July 2022.
In his response to the notice of intention to cancel his visa, Mr Ndirangu states he wants to remain in Australia to achieve his dream of a degree in networking and cyber security at the University of South Australia. He wants to complete his degree so he can contribute to the community, preferably in Australia.
Mr Ndirangu said he wants to recommence his study, however when his visa was cancelled his confirmation of enrolment was also cancelled. He said the deferral of his course was granted when he was taken into custody.
Mr Ndirangu stated at hearing he is a very intelligent man and has been successful in his study, obtaining passes and distinctions. After the hearing he provided, as requested, an unofficial academic transcript from SAIBT of his studies towards a Diploma of Information Technology. This shows he has one distinction and several passes, but also that he has failed three subjects. He has repeated these subjects, passing on his second attempt. It is not to his credit that he did not disclose this at hearing and maintained that he was a good student who was successful at his study.
The Tribunal finds he is in Australia to study, which is the purpose for which the visa was granted. Mr Ndirangu states he has a compelling need to remain in Australia to complete his study.
The extent of compliance with visa conditions
There is nothing before the Tribunal to show Mr Ndirangu has otherwise failed to comply with the conditions of his visa, and this factor is neutral.
Degree of hardship that may be caused (financial, psychological, emotional, or other hardship)
Mr Ndirangu claimed at hearing that he needs remain in Australia because it would be a great disappointment for his family if he does not complete his education as it has been a struggle for them financially for him to study. He said Kenya is not stable economically and it is difficult for him and his family. He said he came to Australia immediately after finishing his schooling in Kenya, and it will be difficult for him to continue this education in Kenya.
Mr Ndirangu stated that he is of Kikuyu ethnicity and was also born into the Mungiki. He said that he had to move within Kenya to avoid the Mungiki or the Luo.
He then said if he returns to Kenya he fears for his life if he returns to Kenya. Mr Ndirangu initially said he would be at risk because elections were coming up in Kenya, and every time there was an election there were “massive fights.” He said it is dangerous in Kenya at election and there is an election coming up early next year.
Mr Ndirangu said he is part of the Kikuyu community, which is associated with the Mungiki, and his family had to move frequently to have a secure place to live which disrupted his schooling. He said the place he was living in Nairobi it was “under the radar” so he could continue to study, but there were attacks where there are mixed cultural groups, so his family moved to Nyeri which is 120km from Nairobi. He said he has not been personally attacked, but family members had been attacked by the Luo community in 2007 and his uncle, aunt and cousin were killed. His father suffers due to the traumatic nature of their death, and their financial situation deteriorated. His father had worked as an engineer, but he lost his job in 2007 and now he tries to make ends meet by running businesses. His siblings are trying to get into small businesses.
He said in 2012 there were some further attacks on the community, but since then there have not been any attacks since as the government has been the same. He said in 2012 there were similar activities to those in 2007. Mr Ndirangu claims he will be killed because of his ethnicity or association with the Mungiki.
Mr Ndirangu said he would be at risk from the Mungiki, because now that he has done some study, has IT skills and is older he is at more risk from this group as they will want his skills and will want him to work for them or join this group.
He also claims he will be harmed by his own community because they have assisted financially with his education and if he returns without completing his education he will be at risk. He could not point to any specific threats and said his father had not told the community he is no longer studying. The Tribunal found his evidence vague, as he stated he feared harm but then could not point to any specific threats and said the community did not know he was not studying.
The Tribunal considers his claims that he fears being killed as a result of his association with the Mungiki, or his ethnicity, or from his own community as a result of the financial assistance may be considered as part of an application for a protection visa.
In his written response to the notice of intention to cancel his vias, Mr Ndirangu stated it has been a very stressful time for him and it has affected his mental health. he states he has sought treatment from the GP clinic at the University of South Australia for his anxiety while he was on home detention. After the hearing he provided a statement which says it is to confirm he has accessed the SAIBT counselling service during 2021 to obtain information or support for referral in relation to his studies. He said at hearing he had contacted Headspace for counselling.
Mr Ndirangu clams he would face economic hardship if his visa is cancelled and he is unable to complete his education as the economic situation in Kenya is poor.
The Tribunal accepts Mr Ndirangu would suffer economic difficulty, and that he fears the approbation of the community, and has suffered psychological distress because his visa was cancelled.
Circumstances in which ground of cancellation arose.
In the response to the Department, which was provided on 23 July 2021, Mr Ndirangu stated:
I think the grounds for cancellation of my student visa(Subclass 500) does not exist because the matters listed in court was a misunderstanding with no intent to harm between me and schoolmate who we were in a relationship at the time.
The matters are still in court because there are conflicting stories between me and her , there has been no communication between me and her since the time I was arrested and got bail, I am to go back to court for a pre- trial of the charges on 27 August 2021 .
Mr Ndirangu said his visa was cancelled because here was a misunderstanding between him and his former partner which resulted in an “alleged” breach of an intervention order, breached bail and committed assault. On it being put to him he had been convicted, he agreed he had been convicted.
Mr Ndirangu said the breach related to him being around his former partner and because he pushed his former partner. He later said he was at school and was in an argument with his ex-girlfriend. He says he pushed her, and she called the police and he was arrested.
The Tribunal obtained the sentencing remarks for the offences of assault, contravening the terms of an intervention order and failing to comply with a bail agreement, and these were put to him under s 359AA of the Act. The sentencing remarks are at the date of conviction on 7 July 2021.
It is worth setting out the circumstances of his offences as set out by the Magistrate. These are:
Mr Ndirangu, you are being sentenced today for one count of assault, a basic offence, which was committed by you on 1 September 2020. The victim was a young lady, I think the proper description of your relationship at that time would have been boyfriend and girlfriend, it is not charged as being aggravated by reason of the fact that you and she were in a domestic relationship as that term is defined by the law but, in my view, it is still a matter of concern that you were in a romantic liaison with the woman in question. Then there is one count of breaching an intervention order which is allied with one count of breaching bail. That involved you attending at the place where she was living seeking to engage with her when to do so was contrary to a bail agreement and contrary to an intervention order, and then there are five counts of breaching bail committed on various dates in April and May of this year and those breaches of bail involved a mixture of you breaching your home detention bail in a number of different respects, by leaving the bail residence when not authorised, going to unauthorised locations, being intoxicated certainly on one, if not more than one occasion.
So far as the assault is concerned, that is undoubtedly the most serious of the offences for which I am sentencing you today. By definition, any example of the offence of assault is a serious matter because it involves the application of physical force by one person against another person without the consent of that second person and without any lawful excuse for that application of physical force. On the day in question, which goes back to September last year, you and Etuhole – I have no doubt I am mispronouncing her name, but you know who I mean – were in each other’s company. You were intoxicated. You were talking to her. She was talking to you. You were walking along the footpaths of some various roads. You became upset for a reason that I do not know was stated specifically but the impression I got was that you were wanting her to resume a relationship with you, she was not necessarily being
agreeable to that. In any event, it ended up with you taking hold of her hair, pulling her towards you. At one stage, you were taking hold of her hair and pulling her hair resulted in her falling to the ground. It was obviously a very distressing experience for her. She was seeking help from passers-by. You were trying to stop her from calling attention to what was happening. There was a struggle over her mobile telephone. You walked away with the mobile telephone. The dragging of her hair occurred one, two, three times, not really sure, enough times to make it relatively serious, in my view. Eventually a passer-by, a good Samaritan stopped. She got into the vehicle for her protection and remained in there, although you were trying to get her to come out and sitting on the bonnet of the car so it could not get away. Eventually the police came.
Any instance of assault is a serious matter, as I have said. Whilst not formally aggravated, I do regard it as a more serious offence than it would otherwise be because of the fact that you knew this young woman, you had been her boyfriend, she had been your girlfriend, and in my view, for a man to pull a woman’s hair is a particularly embarrassing and undignified act to subject a woman to. On the other hand, there is no suggestion that she was harmed. As I have said, I daresay she was distressed, but not physically harmed, and of course I do not have a victim impact statement or anything of that nature.
Mr Ndirangu sought time in which to provide a comment or respond to this information and was provided with an adjournment and a copy of the sentencing remarks to confer with his legal representative. Following the adjournment, Mr Ndirangu stated that the sentencing remarks outlined the incident, that he was influenced by alcohol at the time and he believes there is a low chance of this being repeated as he has worked on abstaining from alcohol. He says he has not been in contact with his former partner.
Of note at the outset is that Mr Ndirangu is untruthful when he says in his written response to the notice of intention to cancel his visa that there was a misunderstanding and that the matters were still in court. At the time he provided this response, while there were outstanding charges, he had been convicted of assault, breach of bail and breaching an intervention order. His description as a misunderstanding does not convey the facts as recorded by the Magistrate.
The Magistrate refers to alcohol being a feature of the breach of bail and the assault. Mr Ndirangu has a previous conviction for driving under the influence of alcohol. The circumstances of his offending include his use of alcohol. Mr Ndirangu said he does not have an alcohol habit; he just uses it socially and doesn’t drink other than socially. On it being put to him that several his offences related to the use of alcohol and this is not consistent with social use, he said in the past he may have had an alcohol habit.
Mr Ndirangu states said he abstained from alcohol for one month in the community, from July until August 2021. In August 2021 he was charged with, and later convicted of, driving under the influence, aggravated without due care and breach of bail due to his alcohol use. He states he then abstained again for a period of a week before he was placed in immigration detention. He also said he realised he had a problem with alcohol and contacted Headspace
The Tribunal considers it weighs heavily against Mr Ndirangu that he committed an offence of assault against a current or previous domestic partner. It weighs heavily against him that he has been convicted of multiple breaches of bail as this shows a lack of respect for Australian laws. It weighs against him that one of the breaches of bail was also a breach of an intervention order and involved him again attempting to approach his previous partner, despite having been charged with assault.
A feature of his offending history is the use of alcohol, and he has not abstained from alcohol in the community for more than a month despite breach of bail, bail conditions and his previous offences. He then offended again with the offence resulting from the use of alcohol.
Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to show Mr Ndirangu has been other than co-operative with the Department.
Whether there would be consequential cancellations under s.140
There are no consequential cancellations that would occur in this case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the Tribunal affirms the decision to cancel Mr Ndirangu’s visa, he will be an unlawful non-citizen and liable to continued detention under s.189 of the Act. If he is an unlawful non-citizen, then under s.198 of the Act he will have to apply for another visa, or leave Australia, or be removed from Australia.
In addition, there are limited other visas for which he can apply if his visa is cancelled (s.48 of the Act and r.2.12 of the Regulations). The type of visa for which he could apply does not include a student visa. It does include a protection visa (r.2.12(c)), or various bridging visas (r.2.12(h) – (mb)).
The requirements for a further Subclass 500 visa include that he meets Public interest Criterion 4013 (PIC 4013). PIC 4013 requires that where a person who is affected by a risk factor, the application is made more than three years after the cancellation of the visa unless there are compelling reasons that effect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa within three years after the cancellation determination. A person is affected by a risk factor of a visa they held has been cancelled under s.116 of the Act because the Minister was satisfied that a ground prescribed by 2.43. It follows that if Mr Ndirangu’s student visa is cancelled he will not be eligible for a further student visa for a period of 3 years unless there are compassionate or compelling circumstances as specified in PIC 4013.

Mr Ndirangu claims he fears being killed if he returns to Kenya. He may apply for a projection visa if he fears harm in being returned to Kenya. He may apply for a bridging visa to be in the community while the protection visa is assessed.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
In COT15 v MIBP (No 1) the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa.[1] The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application.[2]
[1] COT15 v MIBP (No 1) [2015] FCAFC 190.
[2] COT15 v MIBP (No 1) [2015] FCAFC 190 at [38].
In MIBP v Le the Full Federal Court, agreeing with COT15 v MIBP (No 1), held that an assessment of Australia’s non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention.[3] However, it may be necessary to consider any harm claimed by an applicant which may not engage Australia’s international non-refoulement obligations.[4]
[3] MIBP v Le [2016] FCFAC 120 at [61] and [65], overturning Le v MIBP [2015] FCA 1473. This case involved judicial review of a personal Ministerial decision to cancel a K4011 Refugee (Vietnamese) Permit under s 501(2) of the Act.
[4] In Goundar v MIBP [2016] FCA 1203, the Court held that the Minister erred by treating non-protection visa harm as irrelevant to the discretion to cancel under s 501CA(4). The Minister did not consider the applicant’s claims of harm because the applicant could make an application for a protection visa, and in doing so erred by proceeding on the basis that the circumstances the subject of the applicant’s claims could, in their entirety, be met by the availability of a protection visa application: at [53].
Mr Ndirangu’s claims to fear being killed because of his ethnicity, his association with a particular group, or because the community had assisted him financially can be considered in a claim for a protection visa.
His claims that he will suffer other hardship, including economic hardship as well as anxiety and distress have been considered above.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Mr Ndirangu ‘s visa is not a permanent visa, and this does not apply. He states he goes not have any family in Australia but has family friends that he can live with if released from immigration detention.
Mr Ndirangu stated he has worked as a disability support care worker while he has been in Australia, and that his shows he has contributed to the community.
Any other relevant matters
Mr Ndirangu said he was charged with further offences in August 2021. He states he was driving, and his car slid and hit a tree. He was breathalysed and found to have alcohol in his system. He pleaded guilty to driving under the influence, aggravated driving without due care and breach of bail. The breach of bail was due to the alcohol in his system.
It was put to him that given he was charged with another alcohol related offence in the community, this was not consistent with him having abstained from alcohol in the community. Mr Ndirangu stated he abstained from alcohol from July when he was released from prison until this offence in August, and again abstained after this offence. He was abstinent for a week before he was taken into immigration detention.
Mr Ndirangu said he did have a problem with alcohol, and it led to him doing things he would not otherwise do but also later said that he only used alcohol socially. He said he had sought counselling to address his alcohol problem. After the hearing he provided a confirmation email that he had attended a Smart Recovery group meeting on 19 October 2021
Mr Ndirangu said he has also been convicted of a further assault against his ex-partner. He said that he was with his ex-partner, but she threatened to call the police, so he left. The police came to his house and charged him with assault. He said he has been fighting the charges for a year in court but was persuaded by his lawyer to accept a “plea of convenience” as he could not apply for a further visa with outstanding charges against him.
That he has had been convicted of another charge of assault against the same partner weighs in favour of cancelling his visa.
CONCLUSION
Mr Ndirangu will also suffer some economic hardship and distress if his visa is cancelled. Mr Ndirangu claimed at hearing to fear harm if he were to return to Kenya. It is open to him to apply for a protection visa, which is the proper mechanism by which this claim can be assessed further. To the extent that any claims he makes may amount to harm that attracts any non-refoulment obligations that are not the subject of a protection visa, the Tribunal finds that his conduct and the risk to the Australian community outweighs the harm he may experience if returned to Kenya.
Mr Ndirangu holds a temporary student visa and could expect to be in Australia temporarily. He has been convicted of assault against an ex-girlfriend and several alcohol related offences. He has breached an intervention order and breached his bail conditions showing a lack of respect for efforts made to maintain him in the community while the charges were determined. The breaches include the use of alcohol, and it does not appear he has addressed the problems he has with alcohol. In these circumstances, he should expect to have his visa cancelled.
The Tribunal finds Mr Ndirangu’s offending outweighs any other hardship he will suffer because of his visa being cancelled and finds that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Kate Millar
Senior Member