1934715 (Refugee) - [2020] AATA 1134

1934715 (Refugee) [2020] AATA 1134 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1934715
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE:11 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 11 March 2020 at 11:38am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – risk to safety of segment of Australian population – charged with criminal offences against a child – intention to plead not guilty – claim that wife’s relatives instigated false accusations – conditional bail – discretion to cancel visa – strong family connections in Australia – wife’s financial hardship, mental health and approval for Australian citizenship – best interests of Australian citizen children – indefinite detention and non-refoulement – risk of serious harm if returned – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)(i)
CASES
ATR15 v MIBP [2016] FCCA 1089
FMV17 v MIBP [2019] FCCA 186
Gong v MIBP [2016] FCCA 561
MZAJA v MIBP [2017] FCCA 448
Newall v MIMA [1999] FCA 1624
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Tien v MIMA (1998) 89 FCR 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s.116 of the Migration Act 1958 (the Act).
Background
The applicant is a [age] year old national of Iraq. He arrived in Australia [in] August 2012 as an Illegal Maritime Arrival (IMA). [In] September 2015, the Minister for Immigration exercised his power under s.46A(2) of the Act to allow him to lodge a Protection visa application.
He was granted a Safe Haven Enterprise Visa (SHEV) [in] November 2017. The visa was granted on the basis of his religion as a Sunni Muslim, and his imputed political opinion as a former [employee] of [Employer] and for collaborating with Western military forces and the Iraqi government.
According to the delegate’s decision record, [in] June 2019 the applicant was charged by [Police] with a number of offences [relating to] a child in the Australian community. At the time of the alleged offences, the child was aged between [Age 1] and [Age 2] years old. The delegate referred to a [Police] Facts Sheet obtained by the Department, which recorded the alleged offences committed against the applicant’s [Relative 1] on [separate] occasions, between [Date 1] and [Date 2]. The charges consisted of the following:
·[A number of] counts of [Offence 1]
·[Offence 2]
·[Offence 3]
The NOICC
[In] October 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his SHEV under s.116(1)(e)(i) of the Act on the basis that, due to his alleged behaviour, his continued presence in Australia may pose a risk to the safety of a segment of the Australian population, namely children.
The response
[Later in] October 2019, the applicant’s representative wrote to the Department, requesting an extension of time to respond to the NOICC. The extension was granted.
[In] November 2019, the applicant’s representative provided a written response to the NOICC. The response stated that the applicant denies all the charges pending before the court and intends to plead not guilty. The response also stated that the applicant had been granted conditional bail on the basis that there is doubt about the credibility of the claims made against him. It is the applicant’s belief that the allegations were made up by [Relative 1], at the behest of [Relative 2 and Relative 3], because [of a circumstance between the applicant, the applicant’s wife and Relatives 2 and 3]. [Relatives 2 and 3] had previously threatened to have him jailed or deported.
It was submitted that the applicant’s visa should not be cancelled as this would lead to his detention, which means that he would not be able to support his wife and [children]. In addition, the visa cancellation would have a psychological impact on the applicant and his family.
The response further submitted that if the applicant’s visa were to be cancelled, he would be subjected to indefinite detention or removal in breach of Australia’s non-refoulement obligations. If he were to return to Iraq, he would be at risk of serious harm.
The applicant’s representative stated that, as per Ministerial Directions No.63 and 65, the decision maker must take into account the best interests of minor children in Australia as a primary consideration, when determining whether to cancel a visa under s.116.
The following documents were attached to the submission:
·A letter from the applicant’s solicitor stating that a criminal barrister has been engaged to defend the charges against the applicant.
·The Australian passports and birth certificates for the applicant’s [children].
·The applicant’s marriage certificate, dated [Date 3].
In addition, the representative submitted a statement authorised by the applicant’s wife, dated 7 November 2019. In her statement, the applicant’s wife stated that the alleged victim is her [Relative 1]. She believes [Relative 1] fabricated the claims to harm her husband, due to a dispute between their families. A month before [Relative 1] made the allegations, [Relatives 2 and 3] visited her and insisted that she [do something]. After she refused, she received threats from [Relative 2] stating that she would regret her decision. [Relative 3] then sent a message to the applicant, threatening to return him to Iraq. Neither she nor the applicant reported this to the authorities as they did not believe there was a real intention to harm him. The applicant’s wife stated that she is shocked at the allegations as the applicant is a family man, a good husband and father to their [children]. The applicant has never been a threat to the community. If her husband’s visa is cancelled, this would affect her children’s psychological wellbeing. He would also be deprived of the opportunity to work to support the family and to cover his legal fees. The applicant’s wife also stated that she has discontinued her relationship with her family.
Delegate’s decision
On 15 November 2019, the delegate cancelled the visa under s.116(1)(e)(i) of the Act on the basis that the offences the applicant has been charged with [involve] a child in the Australia community, which occurred over a number of occasions. The delegate was satisfied that the applicant may pose a risk to the safety of a segment of the Australian community, namely children.
Review application
On 9 December 2019, the applicant applied for a review of the delegate’s decision.
On 12 February 2020, the applicant’s representative made a submission to the Tribunal in support of the review application.
The submission recounted the facts that had led to the applicant being granted a SHEV and repeated the grounds for cancellation outlined by the delegate in the NOICC.
The representative submitted that there is no evidence to suggest that the applicant is or may be of any risk, particularly since he was granted conditional bail. His bail conditions restrict him from getting into contact with persons under the age of 18, and he will be jailed if he breaches the conditions.
It was also submitted that the Tribunal should have regard to the relevant Ministerial Direction, No.63, and that due consideration should be given to the hardship experienced by the applicant and his family. It was submitted that it would be in the best interests of the applicant’s [children] to set aside the decision to cancel the applicant’s visa.
It was further submitted that the cancellation was based on probability, and the delegate did not give weight to the following considerations: the impact of a decision to cancel a visa on the family unit; the degree of hardship that may be experienced by the visa holder if their visa is cancelled; the circumstances in which the ground for cancellation arose; and the possible consequences of cancellation, including indefinite detention and breach of Australia’s non-refoulement obligations.
The following documents were attached to the submission:
·Copy of an Amended Bail Acknowledgment, dated [September] 2019.
·ID cards and letters of recommendation relating to the applicant’s work as [an employee] in Iraq.
·Copy of the applicant’s academic transcript and a letter from the Dean in relation to the completion of a [Qualification] at [an Institution], dated [November] 2011.
·A Psychologist Report in relation to the applicant’s wife, dated [February] 2020, authored by [Ms A], Psychologist.
The applicant appeared before the Tribunal on 19 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
Following the hearing, the applicant’s representative submitted the following additional material:
·A statement, dated [February] 2020, authored by [Ms B], the [Relative 4] of the applicant’s wife. [Ms B], drawing upon her own observations, essentially stated she believed the allegations against the applicant to have been fabricated by the victim as a way to harm the applicant by either facilitating his return to Iraq or his imprisonment for life.
·A statement, dated [February] 2020, by the [Relative 5] of the applicant’s wife, [Ms C], who resides in [Country]. [Ms C] stated that [Relative 2] had told her that she had ‘set up an accusation’ against the applicant in order to get him to divorce his wife and be deported from Australia. It was stated that [Relative 1] was forced to make the allegations as she would be easily believed and would not be held accountable for what she says. [Ms C] further stated that [Relative 2] had promised to bring her to Australia if she supported the false allegations. However, when she told [Relative 2] that she was strongly against what she was doing, [Relative 2] stopped supporting her financially.
·Letter by the applicant’s criminal defence lawyers, dated [February] 2020. The letter stated that the applicant’s criminal matter has been listed for arraignment in [a] Court on [Date 4] and he will be formally entering a plea of not guilty. The matter will then be set down for a trial ‘late this year or even possibly early next year.’
·Copy of an approval letter dated [December] 2019 in relation to the applicant wife’s Australian citizenship application.
·Copy and translation of threatening text messages from [Relative 3], [Mr D], received by the applicant [in] February 2019.
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)(e). 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)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
The formulation of ‘good order’ in Tien was adopted in Newall v MIMA,[1] where the Court found that it was open to the delegate to be satisfied that the presence in Australia of the applicant who had recently been convicted of being an accessory after the fact to the murder of his parents would be a risk to the ‘health, safety or good order of the Australian community’. In particular, it was open to the delegate to be satisfied, having regard to the seriousness of the offences and the fact that he was still on parole, that the presence of the applicant would ‘create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society’ (per Goldberg J in Tien’s case above). The Court found that such satisfaction might be based on the risk of an adverse reaction by certain members of the community to the applicant's presence in Australia, rather than concern about the likely or possible conduct of the visa holder in Australia.[2] More recently, the Court in ATR15 v MIBP, applying Tien v MIMA and Newall v MIMA, held that it was appropriate for the Tribunal to conclude that the risk to good order was about the risk of adverse reaction by certain members of the Australian society to the applicant’s presence in the country, rather than the concern about the applicant’s likely or possible conduct.[3] There is no requirement that the adverse reaction of the Australian community, or a segment of it, be a reasonable reaction.[4]
[1] [1999] FCA 1624 (Branson J, 24 November 1999) at [22].
[2] Newall v MIMA [1999] FCA 1624 (Branson J, 24 November 1999) at [30].
[3] ATR15 v MIBP [2016] FCCA 1089 (Harland J, 20 May 2016) at [57].
[4] FMV17 v MIBP [2019] FCCA 186 (Judge Riley, 1 February 2019) at [38].
In his response to the NOICC, the applicant’s representative stated that the applicant denies all the charges against him and intends to plead not guilty. It was submitted that the allegations were manufactured by members of his wife’s family following threats made against him due to an ongoing conflict. It was further submitted that the applicant was granted conditional bail on the basis that there is doubt about the credibility of the claims made against him.
The Tribunal appreciates that the applicant has not been convicted of the offences he has been charged with and the case against him is yet to be heard and determined through the criminal justice system. The Tribunal has also considered the letter from his criminal defence lawyer stating that, in their view, the applicant’s prospects of defending the charges against him are ‘reasonable.’ However, the Tribunal is not required to wait until a person is convicted before assessing the risk that they present to the community based upon the information available to it.[5] In Gong v MIBP, Judge Smith considered that as s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence ‘may be a risk’, it can arise on the possibility that some event occurred in the past.[6] In this case, that possibility was supported by the laying of a number of charges against the visa holder. The Court held that there is no requirement that there be a determination of the guilt of a visa holder.[7] However, the Court also said:
I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges. That is an objective assessment of the factual basis for the charges and a comparison of that with the integers of the offence. In order for that inference to be drawn, there must be some evidence of the facts upon which the charges were laid and an assessment of those against the elements of the offence.[8]
[5] MZAJA v MIBP [2017] FCCA 448 at [15].
[6] Gong v MIBP [2016] FCCA 561 (Judge Smith, 8 April 2016) at [41].
[7] Ibid at [45].
[8] Ibid at [55].
Departmental policy indicates that if relying on the existence of a charge to support cancellation under s.116(1)(e), decision makers should consider additional contextual information when deciding whether the existence of the charge justifies an inference that the visa holder engaged in the conduct as charged, and refer to any relevant evidence which forms the basis for finding that a person may or might be a risk.[9] Whether a person has been granted bail and any conditions attached to bail is one such consideration. The Tribunal accepts that the applicant has been granted bail. However, there was nothing in the document itself to suggest that bail was granted on the basis that there is doubt about the credibility of the allegations made against the applicant. At the hearing, the applicant’s representative submitted that these observations were made by the court in the course of hearing the bail application. The Tribunal was not provided with a court transcript. The Amended Bail Acknowledgment lists the conditions of the bail, which includes a condition that the applicant must not have contact with the victim and ‘must never be in the direct company of a person under the age of 18 years in any circumstances whatsoever except his own children and then only when he and they are in the direct company of their mother his wife.’ Whilst it is arguable that these conditions may reduce any risk, the Tribunal is of the view that bail considerations are different to those relevant to an assessment under s.116(1)(e).
[9] PAM3: POLICY - MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140) – s116(1)(e) - Risk to community, public health, safety or good order – Risk to safety (re-issue date 1/7/2017).
The applicant has been charged with a number of serious [offences] against a minor. The Tribunal accepts that the applicant intends to plead not guilty and there is evidence that appears to raise questions in relation to the allegations against him. The Tribunal, however, is not required to determine the guilt of the applicant. As already noted, s.116(1)(e) provides that a person’s visa may be cancelled not only where the visa holder’s presence in Australia ‘is’ or ‘would be’ a risk to the safety of the Australian community, but also where it ‘may be’ or ‘might be’, thereby suggesting a very low threshold as to a future possibility. In Gong v MIBP, Judge Smith stated:
Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).

The Tribunal, therefore, considers that the possibility that some event occurred in the past can give rise to a ground for cancellation under s.116(1)(e).
The possibility of past conduct by the applicant as alleged in [the charges] laid against him by the [police] leads the Tribunal to find that his presence in Australia may be a risk to the health, safety or good order of the Australian community, a segment of the Australian community or any individual. The Tribunal, therefore, is satisfied that the ground for cancellation in s.116(1)(e) 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
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The Tribunal accepts that the applicant arrived in Australia [in] August 2012 as an IMA. [In] September 2015, the Minister exercised his power under s.46A(2) of the Act to allow him to lodge a Protection visa application.[In] November 2017, the applicant was granted a SHEV on the basis of his religion as a Sunni Muslim, and his imputed political opinion as a former officer of [Employer] and for collaborating with Western military forces and the Iraqi government. The Tribunal accepts that the applicant’s travel and stay in Australia are consistent with the purpose of his past and current visas. The Tribunal further accepts that the applicant has strong family connections in Australia and such connections are stronger than his connections to any other country. The Tribunal gives this factor weight in considering whether the discretion to cancel the visa should be exercised.
The extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has failed to comply with any visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant and his wife have been married for [a number of] years. Together they have [children]: [details deleted]. The Tribunal accepts that the applicant’s detention has caused him, his wife and their children considerable hardship. The Tribunal accepts the applicant’s wife’s evidence at the hearing that, despite the significant interference in her marital affairs by her mother and ensuing conflicts, she had found the applicant to be a good husband and father to their [children]. The Tribunal accepts her evidence that the applicant had provided much support and assistance to her following the birth of [the older children] and that all [the] children are attached to him. His detention and separation from her and her children has caused them all psychological grief and emotional anxiety. She no longer has a relationship with her own family and she has been left to look after [children] on her own without any support, including financial support. In his evidence, the applicant also stated that there is strong attachment between him and his children. They cry whenever they visit him in detention and they do not want to leave.
The Tribunal has considered the contents of [Ms A]’s psychological report in relation to the applicant’s wife and accepts that she has been diagnosed with major depression and generalised anxiety disorder. [Ms A] stated that ‘it is that [the applicant wife’s] current psychological issues have been triggered by the recent incarceration of her husband, and anguish about his future. [She] is struggling to cope with the separation of her husband from her, and their [children]. [She] is also struggling to pay bills and function in her daily life.’ [Ms A] also referred to the applicant wife’s ‘string bond’ with her husband, who ‘was loving towards her and their [children].’
The Tribunal accepts the information provided by the applicant’s criminal defence lawyers, stating that the applicant’s matter is likely to be set down for a trial ‘late this year or even possibly early next year.’ The Tribunal accepts that if the visa remains cancelled, and if the applicant is not granted another visa or removed from Australia, he may remain in detention for a lengthy period, which may cause considerable hardship to the applicant, his wife and their [children].
The Tribunal gives the degree of hardship that may be caused significant weight in favour of not cancelling the applicant’s visa.
Circumstances in which ground of cancellation arose
The nature of the charges against the applicant are serious, in that they involve [details deleted]. The victim of these alleged offences is a person under 16 years. The applicant has acknowledged the seriousness of the charges against him. The Tribunal has also considered submissions made on the applicant’s behalf that he has been charged and not yet convicted; he intends to be plead not guilty; he has been granted bail; he has maintained his innocence and he has been supported by his wife and other family members, who have raised questions in relation to the genuineness of the allegations against him.
The Tribunal has found that the charges against the applicant give rise to a ground for cancellation under s.116(1)(e). The Tribunal is of the view that the circumstances in which the ground of cancellation arose weigh in favour of exercising the discretion to cancel of the visa.
Past and present behaviour of the visa holder towards the Department
The applicant has been cooperative with the Department and has actively engaged in the cancellation process. Nothing adverse is known about his past and present behaviour towards the Department.
Whether there would be consequential cancellations under s.140
There are no persons who would be affected by mandatory cancellation under s.140.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The applicant was found to be a person in respect of whom Australia has non-refoulement obligations and was granted a SHEV on 20 November 2017. If the applicant’s visa were to be cancelled, he would become an unlawful non-citizen. Under s.46A(l) of the Act, he would be barred from making a valid application for a further visa, including bridging visas. Consequently, he would be liable to be detained under s.189 of the Act. He would also be affected by the operation of s.48A(1B) of the Act, barring him from making a further application for a Protection visa while in the migration zone. The effect of these provisions is that the applicant will not be able to make any valid visa application while in Australia, unless the Minister intervenes and lifts the decision bars. Whilst detention under s.189 is generally for a limited period pending the occurrence of a particular event, there is the possibility of indefinite detention, particularly following the cancellation of a Protection visa, given the potential existence of non-refoulement obligations, together with the requirements to detain or remove unlawful non-citizens. The Tribunal understands that the Minister has personal powers to move people to community detention and to grant visas to enable non-citizens to be released from immigration detention. The Bridging R visa allows the release from detention of persons who have been ‘cooperating fully with efforts to remove them’, but for whom removal is not reasonably practicable. However, there is no certainty that the applicant would be granted these visas. Subject to a few exceptions, an applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia as soon as practicable, including to Iraq, as required by s.198 of the Act.
The Tribunal has given this factor significant weight in favour of not cancelling the applicant’s visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
Non-refoulement obligations
As already noted, the applicant was granted a SHEV and remains a person in respect of whom Australia has non-refoulement obligations. The cancellation of the applicant’s visa and his possible removal from Australia would be in breach of Australia’s non-refoulement obligations. The Tribunal gives this factor considerable weight.
Convention of the Rights of the Child (CROC)
The Department’s PAM 3 policy provides that the ‘obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement’ (Visa cancellation instructions, General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140)). As a signatory to the CROC, Australia has certain obligations, which are referred to in the Department’s policy. These obligations include the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).
The applicant’s [children] were born in Australia and are all Australian citizens. The Tribunal has accepted that the applicant has a close relationship with his children, who are all under the age of [Age]. It is in the best interests of children to be with their parents and the Tribunal accepts that the applicant’s detention has had an adverse emotional impact on his children. The children’s only contact with their father is when they visit him in immigration detention. If the applicant’s visa remains cancelled, this state of separation and hardship will continue for a reasonably prolonged period. For these reasons, the Tribunal accepts that it is in the best interests of the applicant’s children that his visa not be cancelled so that his children can enjoy an ongoing relationship and continuing connection with their father.
The Tribunal gives this factor significant weight in favour of not cancelling the applicant’s visa.
Conclusions
The Tribunal has found that the applicant’s presence in Australia may be a risk to the safety of others and that there are grounds for cancelling his visa. In considering whether the visa should be cancelled, the Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has given considerable weight to the circumstances in which the ground of cancellation arose and the seriousness of the offences the applicant has been charged with. The Tribunal has also given considerable weight to a number of other factors in favour of not cancelling the applicant’s visa, including the significant emotional, psychological and financial hardship that would be caused to the applicant, his wife and his [children]. The Tribunal accepts that as the applicant’s trial is not due to start until the end of 2020 or the beginning of 2021, there is a real possibility that he will remain in detention for a lengthy period if his visa is cancelled, compounding the hardship to the applicant and his family. The Tribunal has also placed significant weight on the mandatory legal consequences of the cancellation and the potential breach of Australia’s obligations, including non-refoulement and best interests of the children as a primary consideration, as a result of the cancellation of the visa. The Tribunal considers that these matters outweigh the considerations supporting the cancellation of the applicant’s visa. The Tribunal recognises the serious consequences which flow from the decision to cancel the applicant’s visa. In Sullivan v Civil Aviation Safety Authority,[10] the Full Court of the Federal Court considered a review by the AAT of a decision to cancel an aviation licence. In that case, Flick and Perry JJ said that:
When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[11]
[10] (2014) 226 FCR 555
[11] At [120]
Having regard to the circumstances of this case as a whole, the Tribunal finds that the consequences of the cancellation are particularly grave. The Tribunal considers that the factors in favour of the visa not being cancelled outweigh the considerations supporting the cancellation of the applicant’s visa. The Tribunal, therefore, concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.
Shahyar Roushan
Senior Member