Ndirangu (Migration)

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.