2015278 (Refugee)

The applicant, an Afghan male of Hazara ethnicity, sought judicial review of a decision to cancel his Subclass 790 (Safe Haven Enterprise Visa). The applicant had arrived in Australia as an unauthorised maritime arrival in 2012 and was granted the visa in 2016, having been found to face a real chance of serious harm if returned to Afghanistan due to his ethnicity, Shia faith, and profile as a returnee from the West. The ground for cancellation was his conviction for sexual assault and stalking, for which he received a community corrections order.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding the existence of a ground for cancellation under section 116(g) of the Migration Act 1958 (Cth). This required the Tribunal to consider various factors, including the purpose of the applicant's travel and stay in Australia, his compliance with visa conditions, the circumstances surrounding the offending behaviour, any international obligations Australia might breach, and the integrity of the migration program. The Tribunal also had to assess the mandatory legal consequences of cancellation, such as potential indefinite detention and removal, and the risk of reoffending.

The Tribunal reasoned that while the ground for cancellation was established, the decision to cancel was discretionary. It gave considerable weight to the applicant's genuine reasons for fleeing Afghanistan, noting the worsening situation for Hazaras under Taliban rule, which reinforced his compelling need to remain in Australia and his desire to sponsor his family. The Tribunal also considered the severe hardship cancellation would impose on the applicant and his family, including potential food insecurity and his inability to provide a pathway out of persecution. The offending behaviour was contextualised by the applicant's prolonged isolation, depression, limited English skills, and a spur-of-the-moment loss of self-control, rather than a premeditated intent. The Tribunal found that the applicant was genuinely remorseful, had a low assessed risk of reoffending, and that the integrity of the migration program would not be significantly undermined by setting aside the cancellation, given the specific circumstances and the nature of the offending.

Ultimately, the Tribunal concluded that the weight of factors favoured retaining the visa. The decision under review was set aside, and a decision was substituted not to cancel the applicant's visa.