Uzodinma (Migration)

Uzodinma (Migration) [2024] AATA 2615 (31 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr John Chigozie Uzodinma
REPRESENTATIVE:  Ms Simrat Kaur Roopra
CASE NUMBER:  2315214
HOME AFFAIRS REFERENCE(S):          BCC2023/4948070
MEMBER:David McCulloch
DATE:31 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 31 May 2024 at 7:26am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal convictions and imprisonment served by way of home detention – child endangerment – discretion to cancel visa – circumstances of offences – false statements to hospital staff, police and family services – continuing pattern of similar behaviour – no prior criminal history, relatively early guilty plea, remorse and reasonable prospect of rehabilitation – supporting statements – relationship, study and work history – financial and emotional hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 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).
The applicant is a citizen of Nigeria. The visa that has been cancelled was granted on 9 November 2020.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 1 September 2023. Various responses to the NOICC were provided.
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.
The applicant appeared before the Tribunal on 23 May 2024 at 9.30am to give evidence and present arguments. As the applicant was in Darwin and the Tribunal Member in Sydney the hearing was held by video using Microsoft Teams.
There was a request that the Tribunal take evidence from the following witnesses, each who had provided statements to the Tribunal:
·Ms Chiamaka Rosemary Ndibe (the applicant’s wife)
·Father David Callaghan (the applicant’s priest)
·Ms Heather Latimer (the applicant’s placement supervisor)
·Mr Ndudi Ebizie (President of the Igbo community association that the applicant is a member of).
In advance of the hearing, the Tribunal advised that it had questions to ask of the applicant’s wife but otherwise indicated it did not have questions for the other proposed witnesses other than if it was requested that they expand on their written evidence. It was requested that the Tribunal take evidence from Ms Latimer, which the Tribunal acceded to.
The applicant was represented in relation to the review. The representative attended the hearing by video.
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
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?
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) (the Regulations). 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)).
The applicant has provided the Tribunal a copy of the delegate’s decision. That decision outlines the following information it indicates has been obtained by the Department from the Northern Territory Police in terms of the following criminal convictions (unedited):
The Supreme Court of the North Territory – 13 July 2023
Count 1: alleging that on or about 3 November 2021, being a person who was charged with providing the necessaries of life to another person, namely XY you failed to do so, and by failing to do so, that person’s life was likely to be endangered or the health was likely to be permanently injured
Outcome: convicted and sentenced to 16 months’ imprisonment, commencing on 13 July 2023 and expiring on 12 November 2024
Count 2: alleging that on or about 3 November 2021 and 14 December 2021, you attempted to provide the course of justice.
Outcome: convicted and sentenced to 8 months imprisonment, commencing on 13 July 2024 and expiring on 12 March 2025.
The delegate’s decision indicates that the judge ordered that the sentences be suspended and made an order that the sentence was to be served by way of home detention.
Submissions on behalf of the applicant concede these convictions.
In the hearing the applicant agreed with these convictions and sentences.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(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
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction ‘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 (i.e. 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.
In terms of issues relating to discretion, the following documents were provided in response to the NOICC, as outlined from the delegate’s decision:
·Response to the Notice written by the lawyer, dated 15 September 2023;
·Commonwealth of Australia Statutory Declaration written by the visa holder, dated 14 September 2023;
·Character reference written by the visa holder’s wife, Chiamaka Rosemary NDIBE, dated 14 September 2023;
·Character reference written by Ebelebe KINGSLEY, dated 28 March 2023;
·Character reference written by Ndudi Chris EBIZIE, dated 27 March 2023;
·Character reference written by Father David CALLAGHAN, Parish Priest of Holy Spirit Parish, undated;
·Charles Darwin University ‘Unofficial Academic Transcript’ dated 14 September 2023;
·Copy of email from Manfred MLETSIN Charles Darwin University International Compliance Coordinator/Student Support with approval of reduced study load for semester 1 2022;
·Charles Darwin University ‘Conditional Letter of Offer’ for Chiamaka Rosemary NDIBE, dated 9 August 2023;
·Copy of Court Transcript for the proceedings at Darwin on 13 July 2023 at The Supreme Court of the Northern Territory;
·Form 956 – Appointment of a registered migration agent, legal practitioner or exempt person, dated 8 September 2023.
Provided to the Tribunal was the following (including material that had previously been provided in response to the NOICC):
·Submission on behalf of the applicant dated 17 May 2024;
·Statutory Declaration of John Uzodinma (14 September 2023);
·The King v John Uzodinma (13 July 2023) SCC 22138745 – Transcript of Proceedings;
·Statutory Declaration of John Uzodinma (14 May 2024);
·Certificate of Enrolment – Diploma of Business;
·Certificate of Enrolment – Graduate Diploma of Management;
·Department of Home Affairs Decision Record;
·National Code Part 9, Standard 9;
·Charles Darwin University Global Reduced Study Load FAQ;
·Letter from Dr Wilton (Psych Solutions NT) 13 Feb 2022;
·Approval of Request for Reduced Study Load from CDU;
·Statutory Declaration of Chiamaka Rosemary Ndibe (15 May 2024);
·Statutory Declaration of Father David Callaghan (15 May 2024);
·Statutory Declaration of Heather Latimer (15 May 2024);
·Statutory Declaration of Ndudi Ebizie (15 May 2024);
·NAPCAN Certificate of Completion;
·Screenshots of Bank Transfers of Funds to Vulnerable Children in Nigeria.
The Tribunal deals below with relevant discretionary matters, commencing with the circumstances in which the ground for cancellation is made out, which the Tribunal considers the most significant discretionary factor.
Circumstances in which the ground for cancellation arose – extenuating circumstances beyond the applicant’s control
The Supreme Court transcript provided by the applicant outlines the judge’s account of the allegations against the applicant, to which he pleaded guilty and the judge’s comments and findings on the allegations and the degree of the applicant’s culpability.
The judge by way of background indicates that XY, the victim, was two years old. It is alleged that at the time the event has occurred the applicant, and the co-accused, the victim’s mother, were in a domestic relationship. It is noted that the applicant disputes that there was a domestic relationship. The judge indicates that the existence of a relationship or not is not material. The applicant and co-accused were employed in different locations. It is alleged that the applicant and the co-accused regularly accepted shifts that crossed over with one another. When this occurred, the victim would be left alone unattended or, ultimately, secreted at the applicant’s work location including being locked up in a room for up to four hours at a time. On occasions, the co-accused sent messages stating that she had been violent to the victim. It is alleged by way of background, not the subject of charges, that there were five other occasions the applicant was left unattended and without ready access to food or water or adult supervision for between four and eight hours.
In terms of the allegations relating to Count 1 the Tribunal notes the following comments of alleged facts by the judge. On 3 November 2021, the victim was taken by the applicant to his work location which was a residential facility containing serious sexual offenders with multiple convictions for sexual offences who were supervised by employees, including the applicant. The residents were considered high risk.
The applicant arrived at work at 3:20pm and left the victim in the car unattended while the applicant completed changeover procedures. Thereafter, the victim was taken to a small staff bedsit where he was locked in unattended. Left in the room was food intended for the applicant. The applicant returned to the bedsit at approximately 8:30pm. The victim was screaming and the room strewn with the food that had been left. The applicant returned to the bedsit at approximately 9:40pm. The victim was still screaming and was clutching his right thigh. The applicant texted the co-accused and she indicated that the applicant should go to the hospital. The applicant sought to make arrangements for his shift to be covered. The applicant did not ring an ambulance or drive directly to the hospital. The applicant carried the screaming victim to his vehicle and placed him lying down on the rear seat as he was unable to place him in a child seat due to the victim’s pain. The applicant then left the victim unattended in the car to seek to ensure that another staff member was not aware that the victim had been present at the facility. After handover was undertaken at around 10:21pm, the applicant drove away with the victim lying and unrestrained in the car. The applicant arrived at the hospital, which was not the nearest hospital, at 11:21pm. The victim was admitted to hospital and assessed with the following injuries:
·     a right proximal third femur transverse fracture;
·     parallel bruising on either side of the face from right eye towards right; and
·     a previously untreated right sided clavicle fracture that had completely healed over.
The victim was not discharged until 12 November 2021.
On 5 November 2021 the victim received treatment under general anaesthetic to apply a Thomas splint balance traction. Without medical intervention, it is likely that the victim would have suffered deformity of his right leg impacting on both function and appearance.
It is noted that the statement of facts indicates that both the applicant and co-accused were exercising parental control of the victim and responsible for providing him with the necessities of life. The statement says that the applicant knowingly exposed the victim to two high risk sexual offenders and abandoned him on a rural property without adult supervision or access to food or water.
It is further alleged that the applicant and co-accused failed to provide the victim with immediate medical attention or contact Emergency Services despite knowing the victim had suffered a serious injury. The applicant was left unattended in a motor vehicle for an unknown period of time in significant pain and driven unrestrained in a motor vehicle while suffering serious injury. It is alleged that the victim’s life was likely to be endangered or his health was likely to be permanently affected.
The judge then proceeds to outline the facts relating to Count 2. It is alleged that on 3 November 2021 the applicant and co-accused made the following deliberate false statements to hospital triage and medical staff:
·the two of them were the biological parents of the victim
·the injury had occurred at their residence
·the injuries occurred when the victim fell out of bed.
It is indicated that there is text message correspondence on 4 November 2021 between the applicant and the co-accused in relation to providing a false version of how the victim came to be injured. On 5 November 2021 there is further text message correspondence between the applicant and co-accused with the co-accused providing information regarding the questions that have been put to her by medical staff about the victim’s injury. This was consistent with the false version of events that both had agreed to provide. It is alleged that the co-offender asked for a rug to be moved from a residential premises to make it appear that the victim had fallen on hard floor if the premises were checked.
On 5 November 2021 police attended the hospital and spoke to the co-offender about the victim’s injury. It is alleged that the co-offender instantly feigned a fainting spell and became unresponsive. She was conveyed to the Emergency Department. Later she self-discharged from the hospital, knowing that police had left and refusing to provide hospital staff with her address. It is alleged that this was a deliberate attempt to avoid investigation by the Northern Territory Police.
On 6 November 2021 police located the co-offender who gave the police a false version of events as to how the victim came to be injured in the home.
On 6 November 2021 the applicant completed an audiovisual statutory declaration with police as part of the investigation into the victim’s injury. The applicant indicated that he understood it was an offence to provide a false statutory declaration and that everything he had indicated was true and correct. The applicant then is alleged to have made numerous false statements in the course of that statutory declaration including:
·that he found the victim on the ground in his bedroom sometime after 8pm or 9pm after hearing a noise
·both the applicant and co-accused were unable to take the victim to the hospital due to monetary constraints
·the co-accused had to call family members overseas to arrange for them to wire her some money for the two of them when they went to the hospital in case they had to pay a bill.
It is indicated that police later obtained CCTV footage from their residence that confirmed that the applicant and co-accused had not told the truth in relation to their movements on the evening in question.
On 9 November 2021 the applicant and co-offender met with Territories Families and told them this time that the victim had fallen off a bed at the facility where the applicant worked. It was indicated that the victim had been left in the staff bedroom while the applicant went to the shops and straight back to the property.
Territories Families and the Police continued to investigate. The hospital doctor indicated that on initial presentation throughout the first day of admission, the victim was highly distressed and inconsolable despite pain relief. Attempts by the applicant and co-offender to comfort or settle the victim resulted in heightened agitation. This made it extremely difficult for medical staff to examine and assess the victim. When the victim’s biological father attended, the victim settled immediately, displayed no distress and was able to be examined.
On 11 November 2021 the victim was discharged into the care of Territories Families and his biological father.
On 10 December 2021 the co-offender Google searched charges for negligence of a child on her mobile phone. It is indicated by the judge that both the applicant and co-offender deliberately lied to hospital staff, police and Territory Families. The judge indicates that they acted in concert to manipulate evidence in order to misdirect ongoing investigations. It is indicated that the applicant knowingly falsified a statutory declaration as part of a deliberate strategy to defeat or obstruct justice. The judge indicates that the most serious failings were failure to supervise the victim, the failure to immediately seek medical treatment for the victim including calling an ambulance when it became clear that the victim was badly injured. This is in addition to the act of driving the badly injured victim to the hospital, unsecured. The judge indicates that the fact that the residents at the facility were sexual offenders did not materially increase the risk to the victim. The fact that the victim was left without food and water is relevant. However, there is no evidence that the victim was observed to be malnourished and dehydrated by medical staff when he was admitted.

The judge indicates that he is satisfied that the injury to the victim occurred sometime between 8:30pm and 9:14pm. The judge indicates that the failure of the applicant to properly supervise the applicant on 3 November 2021 was not an isolated incident, or was a result of a single instance of neglect. It was part of a continuing pattern of similar behaviour. It is not alleged that the applicant deliberately inflicted injury on the victim, but there was calculated neglect of the victim that was the effective cause of his injury. The judge indicates that the conduct of the applicant in relation to Count 1 is more culpable than that of the co-offender. After becoming aware of the injury the applicant placed his interests in maintaining employment above the duty to care for the victim.
With regard to Count 2, the judge is satisfied that the applicant was a willing participant in the attempt to mislead medical personnel at the hospital as well as Territory Families officials and police about the circumstances in which the victim’s injury occurred.
The judge does not accept as alleged by the prosecution that there was a high level of sophistication involved in the offence. It was always highly unlikely that the false version of events will hold up under scrutiny.
The judge in sentencing notes that the applicant is 32 years old and was born in Nigeria. He has lived in Australia for four years. He was married in February 2023. The applicant is unable to work. His wife works as a support worker and the two of them plan to live in Australia.
The judge accepts that the applicant may not have known precisely the nature of the injury which the victim had sustained. However, he is not satisfied that the applicant was not aware that the victim had been badly injured. This is inconceivable given the pain experienced by the victim. The judge accepts that the applicant lied to authorities to avoid his employment being terminated. It is noted that the applicant has no criminal history either in Nigeria or Australia. This entitles him to a degree of reduction in sentence.
The judge refers to various character references, submitted as part of this review, including from the applicant’s wife. The judge provides details of the positive comments of the applicant’s character made by his wife, the president of the Nigerian community in Darwin and a parish priest. The judge does not accept the view of the parish priest that the applicant’s offending behaviour was not in line with his character and that he felt trapped by circumstances and made a bad decision.
The judge considers based on what the admitted facts reveal that the offending conduct was part of a continuing pattern of similar behaviour. The judge indicates that the applicant has a reasonable prospect of rehabilitation based on a lack of prior criminal history. A relatively early plea of guilty is taken into account in the applicant’s favour, reducing the sentence imposed by 20%.
The written submissions and the applicant’s statements make submissions in relation to the circumstances in which the ground for cancellation is made out. It is indicated that what happened was due to the applicant being eager to help a friend. He did not expect the degree to which victim could become dependent on the applicant. The applicant refers to the circumstances of 3 November 2021. He did not consider that the police would become involved or it would become a criminal matter. He started to have regrets about providing false information to police. None of this is to deny the applicant’s guilt. He is wholly aware of his wrongdoings. However, his conduct was not as a result of calculated maliciousness towards the victim or co-accused, but the opposite. The risk to the victim was inadvertent. Reference is made to the three supporting statements as to the applicant’s character. Reference is made to the applicant not otherwise having a criminal history.
In the applicant’s most recent statement he refers to the fact that his understanding of how to care for a child was flawed and misguided because of different childminding standards in Nigeria in which it is culturally accepted that children often hurt themselves and there is not culpability for harm to a child under a person’s care. The applicant refers to undertaking a workshop in Australia to make him better aware of standards in Australia.
The most recent submission on behalf of the applicant refers to character references provided by individuals for the applicant attesting to his good character and integrity and the desire to help people in need.
In the hearing, the Tribunal went through with the applicant parts of the judge’s comments underlined above. The Tribunal put to the applicant that it was shocked by the overview of events and finding of the judge in relation to the applicant’s conduct. In particular, the judge determined that this was not an isolated event. The Tribunal put to the applicant that the judge’s analysis and findings of the circumstances in which the ground for cancellation made out are overwhelmingly adverse to him in the exercise of the Tribunal’s discretion.
In response, the applicant indicated that he was not trying to justify his actions. He reiterates explanations made in written submissions including that he was trying to act in charity to help a friend caring for her child. The applicant indicated that what happened was a product of having to make difficult decisions and not being in a place to be able to make good decisions. Reference is made to the conduct being out of character. The applicant indicates that he was trapped to a degree in providing a false explanation to the hospital and authorities because this was the explanation that had earlier been provided by the co-accused. The applicant indicates that there has been reflection and rehabilitation as to what occurred and he would now do things differently.
The Tribunal noted to the applicant that he claims to accept responsibility for what occurred but in his most recent statement says that the mistreatment of the child was a product of different cultural standards in Nigeria in terms of childminding. The Tribunal put to the applicant it had great difficulty accepting that the applicant’s misconduct in his care of the child would be deemed culturally appropriate in any country.
In response the applicant indicated that in Nigeria there is not the same cultural need as in Australia to follow a child around. The applicant also indicated that there can be problems in Nigeria in telling the truth to police.
The Tribunal, albeit accepting that there may in Nigeria be reduced requirements for the monitoring and welfare of children, has great difficulty accepting the applicant’s lack of care and treatment of the two-year-old victim, which the judge indicated was not an isolated incident, would be considered culturally appropriate in any country.
The Tribunal accepts that the applicant may have commenced looking after the child with a charitable intent to help a friend. The Tribunal accepts that the applicant may have become overwhelmed by this commitment and what it entailed. Thus, the Tribunal accepts some extenuating circumstances. However, they were not beyond the applicant’s control. The difficult situation that the applicant confronted trying to help a friend with her child does not excuse or justify in the Tribunal’s view the lack of care to the well-being of the child in the events leading to the charges or justify concocting fraudulent explanations to the hospital and authorities as to the circumstances in which the injuries occurred. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify or explain the circumstances leading to the convictions.
The Tribunal noting the applicant’s various explanations remains of the view that the factual events of lack of care and attention towards the victim and concocting with the co-accused a fraudulent account of what occurred is highly adverse to the applicant in the exercise of the Tribunal’s discretion.
Purpose of the applicant’s travel and stay in Australia
It is submitted, and the Tribunal accepts, the applicant has been in Australia consistent with the intention to undertake and fulfil study commitments. The applicant has passed a Diploma of Community Studies and undertaken adequate progress in a Bachelor of Social Work, before the applicant was expelled from this course because of the convictions and not disclosing these to the education provider. The applicant does not draw adverse inference from the applicant failing some units in the Bachelor of Social Work because of the pressure of the charges against the applicant. The applicant after his expulsion from the Bachelor of Social Work course is enrolled in a dual Diploma of Business and Graduate Diploma of Management. He plans to seek reenrollment in a Bachelor of Social Work and complete the few remaining units needed to complete this course.
The Tribunal accepts that the applicant has undertaken sustained efforts in his studies in Australia that demonstrate the actual purpose of his travel and stay in Australia has been consistent with intentions originally conveyed to the Department. These are factors which weigh against exercising the discretion to cancel the visa.
Extent of compliance with visa conditions
Written submissions on behalf of the applicant counter the finding by the delegate that the applicant was in breach of his requirement to be enrolled in a full-time registered course as required by condition 8202(2)(a) when he reduced his study load during his criminal proceedings.
The Tribunal accepts the written submissions on behalf of the applicant that there is no breach in this respect. There is no evidence of the applicant not complying with any other visa conditions.
Hardship to applicant and family members if visa were cancelled
Both the applicant and his wife gave consistent evidence at the hearing as to the history of the relationship. They were in a relationship together from about five years before the applicant came to Australia at the end of 2018. During this period they lived together apart from when the applicant’s wife was away studying. The relationship continued on foot after the applicant came to Australia in 2018. It was intended that the applicant return to Nigeria for them to marry but this became not possible due to the closure of borders due to COVID-19. After border closures it was intended that the applicant would return to Nigeria to marry but this became not possible due to travel restrictions as a result of the criminal charges.
The applicant’s wife arrived in Australia in January 2023 and they spent about two months together in the Northern Territory during which period they were married. Thereafter the applicant’s wife has lived in Adelaide where she has been studying but she returns to Darwin every one to two months for a few days or a week to visit the applicant.
It is indicated in written submissions that the applicant’s wife who would remain in Australia to complete her studies in South Australia would suffer emotional and psychological hardship due to the increased separation from her husband. Although they reside in different states in Australia, the wife visits the applicant in Northern Territory every one or two months. The applicant’s wife if the visa remains cancelled would find herself alone in Australia without support. The applicant’s wife would quickly begin to spiral downwards. The separation would also inflict hardship on the applicant.
The Tribunal explored with Ms Ndibe in the hearing her study progress in Australia. In response she indicated that she will finish her Masters of Social Work in the middle of 2025. If the applicant’s visa was reinstated then they would both wish to remain for a period in Australia on graduate work visas.
The Tribunal put to the applicant’s wife that given the period in which she and the applicant had been apart during the history of the relationship, a further year apart while she completes studies in Australia may not be an overt hardship in that context. Both the applicant and the applicant’s wife reiterated that there would be significant hardship due to the separation. The representative made submissions that the context now is different in terms of the development of the relationship, marriage and the issues they have faced together in Australia.
Written submissions are made that Ms Ndibe returning home without finishing her studies in Australia would be a different kind of hardship for her as a result of the cancellation of the applicant’s visa. It would waste efforts and resources in taking out the study in Australia.
Submissions are made that the applicant would not be able to provide financial support to Ms Ndibe for her living and study in Australia from his part-time work. Although the applicant said they can work in Nigeria, he would earn less money limiting financial support available to Ms Ndibe.
The submissions provided on the applicant’s behalf and the applicant’s own statements refer to significant hardship he will face if he is not able to complete his intended study in Australia. There would be wasted financial resources in terms of expenses related to study to date.
The Tribunal accepts not insignificant hardship to the applicant if the visa remains cancelled as a result of him not being able to complete his desired studies in Australia, of which he has made to date reasonable progress. The Tribunal accepts hardship due to the potential separation from his wife who might remain in Australia for a little over a year to complete her studies. The Tribunal accepts not insignificant hardship to the applicant’s wife if she remained in Australia to complete her studies being further separated from her husband. The Tribunal accepts hardship to the applicant wife if she decided to return to Nigeria with the applicant as a result of not being able to complete her desired studies in Australia.
The Tribunal accepts significant hardship to the applicant and the applicant’s wife in terms of not being able to progress stay in Australia after their respective studies and graduate work visas and potentially not be able to take steps to secure a more permanent stay in Australia beyond that.
Applicant’s past and present behaviour towards the Department
The Tribunal has no evidence about the applicant having acted in any adverse way towards the Department.
Whether there are any other persons whose visas might be cancelled as result of the cancellation
There is no evidence of individuals affected by consequential cancellations.
Mandatory legal consequences to a cancellation decision
The Tribunal accepts that if the visa remains cancelled the applicant would be required to leave Australia and there would be severe restrictions on his ability to apply for other visas including in third countries. This is a significant hardship to the applicant.
Breach of relevant international agreements
Submissions on behalf of the applicant indicate that he has not made any claim for protection such as to engage Australia’s non-refoulement obligations. There are no children in Australia whose interests could be affected by the cancellation.
Any other relevant matters
Written submissions are made that the court accepted that the applicant is remorseful for his actions and the impact it has had on others. It is submitted this indicates good insight by the applicant towards his offending. Apart from providing an untruthful excuse before he was charged, it is submitted that the applicant has otherwise cooperated with the prosecution and entered early pleas of guilty. The applicant abided by all bail conditions. The provision of home detention indicates reasonable prospects of rehabilitation given he had no prior criminal record and a good work history. The applicant it is submitted does not pose a risk to the Australian community. The findings of the court it is submitted should strongly weigh against cancellation of the visa.
It is submitted that rehabilitation by the applicant is indicated by him undertaking of his own volition a one day child safety course with the National Association for Prevention of Child Abuse and Neglect. This has enabled the applicant to reflect and surgically evaluate his conduct and identify the appropriate alternatives to his behaviour. It is indicated that the various character referees for the applicant attest to the applicant’s reflection and understanding of the nature of his offences, taking responsibility for his actions. It is submitted that the applicant’s proactive approach to rehabilitation should weigh strongly against cancellation.
In terms of character references the Tribunal notes the following from written statements.
·Ms Chiamaka Rosemary Ndibe (the applicant’s wife) – she indicates that the applicant is loving, hard-working, funny, cheerful, God-fearing and caring, with a large heart. The applicant is committed to youth. His desire to study social work is to advocate and support the less privileged. The applicant has dealt with the psychological and emotional stress of the charges with remarkable resilience and grace. Since the reoffending the applicant has embarked upon the journey of self-reflection leading him to confront his actions with a profound sense of remorse. He acknowledges the seriousness of his mistakes. He has made significant strides in his rehabilitation. The applicant is a different man to who he was in 2021.
·Father David Callaghan (the applicant’s priest) – the applicant is a man of integrity who is always trying to help people. He has a great desire to serve those in need. The applicant’s actions leading to the convictions are not in line with his character. The applicant felt trapped by circumstances and made a bad decision in the moment based on the fear of losing his work or visa. It was partly driven by a lack of understanding of how the Australian system works and perhaps a cultural perception around whether police can be trusted. The applicant now has a desire to live differently.
·Ms Heather Latimer (the applicant’s placement supervisor) – the writer is CEO at Villy Australia, a social enterprise with a focus on veterans and military families. The applicant began his placement in September 2023. The applicant is a dedicated person striving to do good for those around him. The applicant is a dedicated student, employee, volunteer and community member. The applicant is remorseful for his actions and would not now act the same way if presented with the same situation. The applicant engages with the writer’s children in an attuned and cautious way. The applicant is a fundamentally good person. He is dedicated to church, his wife, study and family. He is passionate about helping others even to the detriment of himself. The writer provides comments as to the hardship that would be faced by the applicant and his wife if the visa remains cancelled. In the hearing, Ms Latimer indicated that she wanted to emphasise the point as to the hardship that would be suffered by the applicant’s wife. She reiterated the fact that the applicant has owned responsibility for what happened and has taken steps to reform and that he is dedicated to family and church.
·Mr Ndudi Ebizie (President of the Igbo community association that the applicant is a member of) – the writer has known the applicant since he joined the association in 2020 as a student member. The applicant has been active in the association including involvement in committees. The writer has witnessed changes in the applicant’s circumstances and character and seen his commitment to rehabilitation and self-improvement. The applicant has displayed remorse for his actions and a thorough understanding of his offences, taking full responsibility. He would behave differently if faced with similar circumstances today. The statement refers to the hardship that the applicant and his wife would face if the visa remains cancelled.

It is submitted that the applicant participates in the community through his regular attendance at church and participation in mass. He is also regularly sending funds to vulnerable children in Nigeria, paying for their schooling expenses. This demonstrates the applicant’s qualities of service and selflessness.
It is submitted in summary that it should be determined that the applicant’s offending related to an isolated and specific period characterised by poor choices and judgement and not reflective of his character.
The Tribunal accepts that the applicant is remorseful for his actions and there has been a degree of rehabilitation of the applicant and positive improvements to his character. The Tribunal has taken into account the multiple and positive assessments of the applicant’s character but, like the presiding judge considering the charges, is not satisfied that at the time of the offences the applicant acted in a way prioritising a desire to care for others given his lack of care for a vulnerable two year old. Contrary to positive assessments of others of the applicant’s, character is the judge’s finding that the events leading to the charges were not an isolated instance of regret. Having said that, the Tribunal accepts subsequent remorse and improvement in the applicant’s character in terms of seeking to facilitate the positive welfare of others.
The Tribunal accepts that the risk of the applicant to individuals and the community is low. The Tribunal accepts he has no other criminal convictions. The Tribunal accepts the applicant has a good work history.
Summary and conclusions on exercise of discretion
Overwhelmingly adverse to the applicant are the circumstances in which the ground for cancellation was made out as set out by the judge, particularly that this was not a one-off event. The judge also does not accept the assessment by the applicant’s priest that what happened was out of character. Although the applicant was not malicious towards the victim, there was an appalling lack of care towards the victim compounded by orchestrated deception to hide from the hospital and authorities what actually happened.
The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify or explain the events leading to the convictions, albeit accepting the applicant’s initial positive intentions in helping a friend looking after a child and the applicant being caught up and overwhelmed by the situation.
The Tribunal accepts contrition by the applicant and some degree of reform and rehabilitation. The Tribunal takes note of the glowing character references made by a number of individuals in relation to the applicant. The Tribunal is not satisfied that the applicant demonstrated concern and care for others in the events that led to the convictions. The Tribunal is prepared to accept that the applicant’s character traits have improved since the events in question indicating a degree of reform experienced by the applicant.
In the applicant’s favour is his good study history in Australia including taking steps to enrol in other courses after being expelled from the Bachelor of Social Work.
The Tribunal accepts significant hardship to the applicant if the visa remains cancelled in terms of him being unable to complete his intended studies in Australia and progress to remain in Australia and work on a graduate visa. The Tribunal accepts wasted financial resources.
The Tribunal accepts not insignificant hardship to the applicant’s wife in terms of her having to remain in Australia for approximately a year to finish her studies if the applicant has to return home. This is militated to some degree by the extent of separation that the parties have endured during the course of the relationship. Having said that, the Tribunal accepts the submission that the relationship has progressed to a new phase where the degree of hardship caused by the separation is more significant than was experienced by them both before.
The Tribunal accepts hardship to the applicant’s wife if she made the decision to return to Nigeria with her husband without finishing her studies in Australia. The Tribunal accepts hardship to the applicant’s wife if the visa remains cancelled in terms of both her and the applicant being able to continue to remain in Australia for a period to work on a graduate visa and thereafter if they wished to explore options for more permanent stay in Australia.
The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of severe limitations on eligibility for visas to remain in or enter Australia for a significant period.
In the applicant’s favour is the fact that there are no other instances of breach of visa conditions by the applicant.
The Tribunal accepts that cumulatively there are not insignificant discretionary factors in his favour, including a good study and work history, contrition, a degree of rehabilitation, multiple views as to positive character traits of the applicant, significant hardship to him and his wife if the visa remains cancelled.
However, these cumulative matters in his favour do not overcome the extremely adverse circumstances in which the ground for cancellation is made out in the context of the Tribunal not considering that there are extenuating circumstances beyond his control that justify or explain the adverse conduct.
The Tribunal considers that the circumstances leading to the convictions on their face obviate the applicant’s entitlement to remain in Australia and the privilege of holding a student visa which view is not overcome by matters weighing against exercising the discretion to cancel the visa, including the significant hardship to both the applicant and his wife.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
David McCulloch
Member

[2024] AATA 2615

31 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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