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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ndirangu (Migration)

Details

AGLC: Ndirangu (Migration) [2021] AATA 4344
Case: [2021] AATA 4344
Decision Date: 25 October 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Ndirangu's Subclass 500 (Student) visa. The cancellation was based on the applicant having been convicted of several offences, including assault, contravening an intervention order, failing to comply with bail, and driving under the influence. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The Tribunal first considered whether the ground for cancellation was made out. It found that Mr Ndirangu's convictions for offences against State law satisfied the prescribed ground in regulation 2.43(oa) of the Migration Regulations 1994, which in turn established the ground for cancellation under section 116(1)(g) of the Migration Act 1958. As this ground did not mandate cancellation, the Tribunal proceeded to consider whether to exercise its discretion to cancel the visa. In doing so, it had regard to the circumstances of the case, including matters raised by Mr Ndirangu and guidance from the Department's Procedures Advice Manual.

The Tribunal assessed the purpose of Mr Ndirangu's stay in Australia, which was to study, and his stated compelling need to remain to complete his degree. It noted his academic record, including some failed subjects which were not initially disclosed, and found this lack of candour was not to his credit. While acknowledging that Mr Ndirangu had otherwise complied with his visa conditions, the Tribunal concluded that his offending behaviour outweighed any hardship he might suffer from the cancellation of his visa. Consequently, the Tribunal affirmed the delegate's decision to cancel Mr Ndirangu's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 MillarSenior Member

Ratio Decidendi

Legal Principle Established

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.