1916932 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant who had been charged with and convicted of robbery-related offences. The Minister had formed the belief that the applicant's presence in Australia posed a risk to the safety of the Australian community, a ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether to exercise its discretion to cancel the applicant's visa, considering all relevant circumstances. The applicant had responded to the notice of intention to cancel by arguing that the alleged offences were still pending trial, that he had non-refoulement obligations to Australia, and that he had suffered significant trauma, including domestic and sexual abuse, and faced hardship if returned to Iran.

The Tribunal found that while the ground for cancellation under section 116(1)(e) was enlivened by the conviction and charges, mandatory cancellation was not required. In exercising its discretion, the Tribunal gave significant weight to the applicant's compelling need to remain in Australia due to a pending civil matter concerning allegations of sexual abuse, and the potential harm he could face in Iran. The Tribunal also considered the applicant's lack of visa condition compliance, the hardship his family would experience if he were returned, his formative years spent in Australia, and his positive rehabilitation prospects, including his engagement in counselling and sporting activities.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) and substituted a decision not to cancel the visa.