1923490 (Refugee)

The applicant, an unauthorised maritime arrival from Sri Lanka, sought review of the cancellation of his Subclass 785 (Temporary Protection) visa. The dispute centred on whether the cancellation decision was correct, particularly in light of the applicant's ongoing claims of innocence regarding criminal offences for which he was convicted and sentenced to a lengthy term of imprisonment, and his intention to appeal these convictions to the High Court. The matter was heard by the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was satisfied, and if so, whether to exercise its discretion to cancel the visa. The Tribunal also had to consider the applicant's compelling need to remain in Australia, his compliance with visa conditions, and the degree of hardship that cancellation might cause, including financial and emotional impacts on his family in Sri Lanka.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied, noting that this ground did not mandate cancellation. In exercising its discretion, the Tribunal acknowledged the applicant's compelling need to remain in Australia to serve his sentence and pursue appeals, and gave this some weight against cancellation. However, the Tribunal also considered the applicant's compliance with visa conditions to be a neutral factor, and found no evidence of significant hardship to family members in Australia. Despite the applicant's claims of financial hardship for his dependants in Sri Lanka, the Tribunal concluded that, when considering all circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 785 (Temporary Protection) visa.