1834254 (Refugee)

This matter concerned an application by a visa holder, who had arrived in Australia in 2012 and was granted a Safe Haven Enterprise visa in 2017 due to fears of persecution in Iran, to review the cancellation of his visa. The cancellation was based on the delegate’s satisfaction that the applicant’s presence in Australia posed a risk to the safety of a segment of the Australian community, specifically women, following allegations of sexual assault in December 2017, for which he was arrested and charged in July 2018. The applicant maintained his fear of returning to Iran and argued that visa cancellation would amount to double jeopardy.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, and if so, whether the applicant's visa should be cancelled as a matter of discretion. Section 116(1)(e) permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of an individual. The Tribunal also had to consider the applicant's submissions regarding the punitive nature of cancellation and the principle of double jeopardy.

The Tribunal found that the ground for cancellation under section 116(1)(e)(i) was established, being satisfied that the applicant's presence in Australia posed a risk to the safety of a segment of the Australian community. The Tribunal rejected the submission that cancellation amounted to double jeopardy, distinguishing administrative cancellation powers from criminal proceedings and emphasising that cancellation's purpose is community protection, not punishment. While acknowledging factors in the applicant's favour, such as his compelling need to remain in Australia due to fear of return and plans for a family, and his compliance with visa conditions, the Tribunal concluded that, on balance, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.