1934715 (Refugee)

The applicant, Shahyar Roushan, sought review of a decision to cancel his protection visa. The dispute arose from criminal charges laid against the applicant concerning offences against a child, which the applicant intended to plead not guilty to, alleging false accusations instigated by his wife's relatives. The court 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 Minister's discretion to cancel the visa should be exercised.

The court found that the possibility of past conduct by the applicant, as alleged in the criminal charges, satisfied the ground for cancellation under section 116(1)(e), as his presence in Australia could pose a risk to the health, safety, or good order of the Australian community or a segment thereof. However, the court then considered the exercise of discretion regarding cancellation. It weighed the applicant's strong family connections in Australia, the significant hardship his detention caused to his wife and Australian citizen children, and the wife's financial and mental health struggles, against the grounds for cancellation. The court also noted the applicant's compliance with visa conditions and the grave consequences of cancellation, including the risk of serious harm if returned to Iraq, which was a factor in his original visa grant.

Ultimately, the court concluded that the factors favouring the visa not being cancelled outweighed those supporting cancellation. Consequently, the decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.