2006935 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the applicant's Safe Haven Enterprise visa (SHEV). The applicant, a Sri Lankan national, arrived in Australia in September 2012 and was subsequently granted a SHEV in April 2017. The Minister's delegate initiated cancellation proceedings after being advised by Victoria Police of the applicant's conviction for criminal offences relating to cannabis in October 2019, for which he received a 134-day prison sentence. The notice of intention to cancel was sent to the applicant's last known address but was returned unclaimed, meaning the applicant did not respond to the notice.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled in the exercise of the Minister's discretion. The relevant prescribed ground was that the holder of a temporary visa had been convicted of an offence against a law of the Commonwealth, a State or Territory. The Tribunal also had to consider the applicant's circumstances, including his reasons for seeking protection in Australia, his health conditions, and the consequences of visa cancellation.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established, noting that the applicant had been convicted of cultivating cannabis and theft. However, the Tribunal noted discrepancies in the information provided by Victoria Police regarding the exact convictions. Crucially, the Tribunal found that the applicant did not receive the notice of intention to cancel because he had not returned to his previous address after his arrest. In exercising its discretion, the Tribunal considered the applicant's well-founded fear of persecution in Sri Lanka due to his Tamil ethnicity and imputed political opinion, his significant physical and mental health conditions requiring treatment, and the severe consequences of cancellation, including indefinite detention and inability to access Medicare. The Tribunal concluded that these factors weighed heavily against cancellation.

The Tribunal set aside the decision to cancel the applicant's SHEV.