2015286 (Refugee)

2015286 (Refugee) [2021] AATA 1606 (27 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2015286

COUNTRY OF REFERENCE: Iran
MEMBER:Antoinette Younes
DATE:27 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 27 April 2021 at 3:47 pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – applicant convicted of several offences – religion – conversion to Christianity – Community Correction Order – impact on family – mental health issues – relationship with an Australian citizen – protection obligations – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 46, 48, 116, 424AA
Migration Regulations 1994, r 2.43; Schedule 4, PIC 4013
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
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 6 October 2020 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).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of several offences. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 24 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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)(g). 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)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.
Section 116 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g) a prescribed ground for cancelling a visa applies to the holder.
The prescribed grounds for cancellation under s. 116(1)(g) are found in regulation 2.43(1)(oa) of the Regulations which provides:

(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.
The information before the Tribunal indicates that:
·[In] October 2012 the applicant arrived in Australia as an unauthorised maritime arrival (UMA). On 6 January 2016, he lodged an application for a Safe Haven Enterprise (subclass 790) visa and based on the protection claims he made, he was granted a Safe Haven Enterprise (subclass 790) visa on 8 February 2017.
·[In] February 2020, the Department was advised that the applicant was convicted by [the Court] of the following offences:
i)   Drive with middle range Prescribed Concentration of Alcohol – 1st Offence
ii)     Common Assault (Domestic Violence) – T2 (Two Counts)
iii)   Destroy or Damage Property <=$2000 – T2.
·The applicant was sentenced to a [number]-month Community Correction Order commencing [in] February 2020.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE
On 4 September 2020, the Department sent to the applicant a NOITCC on the basis of the above conviction which meant that s.116(1)(g) is enlivened. On 24 September 2020, the applicant responded to the NOITCC.
In a Statutory Declaration dated 24 September 2020, the applicant stated that:
·He left Iran for safety and to escape persecution. He arrived in Australia in 2012 and sought asylum. He is a Christian convert and he fears returning to Iran and he would be killed by way of hanging in case of his return, which is the punishment for a person who has converted from Islam. His conversion is public knowledge and the Iranian authorities, his family, relatives, his friends, and everyone is aware of his conversion. He did not believe in Islam and fell in love with Christianity so he converted [in] April 2015.
·Since his arrival in Australia, his wife in Iran separated from him and he cannot talk to his child. His life has been adversely impacted and he is grateful for Jesus for giving him hope and the opportunity for a peaceful life.
·He met [Ms A][1] in September 2015 and she is an Australian citizen. They liked each other and met regularly. In early 2016, they started a relationship which is genuine and long-lasting. They love and care for each other and intend to marry soon.
·Since his arrival in Australia, he has been a law-abiding resident and has respected Australian laws, values, and way of life. He has been a person of good character. The incident [of] January 2020 was out of character and it only occurred while he was intoxicated and taking anti-depression medication. He conducted himself in a shameful manner and he has been told that he pushed [Ms A] away from him while she was trying to help him and calm him down. He cannot explain what happened but he is ashamed of his conduct. He cannot change what happened but he is promising that he would not drink again and would not conduct himself in this manner.
·He pleaded guilty to the charges and told the Court the truth. His drinking resulted in the poor behaviour and he is not a violent person; he has never committed a crime in his life. He has stopped drinking and attends regular counselling. He has taken positive, objective, and firm steps to deal with his drinking problem in order to prevent any further shameful conduct. He loves and cares for [Ms A].
·[Ms A] was present in Court and supported him as she knew that the conduct was out of character. He made a big mistake and he should not have consumed alcohol to the amount that he did. It was [Ms A’s] grand child’s birthday and he “stupidly” allowed himself to have a few drinks whilst being on medication. He is truly sorry for everything that has happened and he is also sorry for himself.
[1] Also spelt [Alias]
In a Statutory Declaration dated 20 September 2020, [Ms A] stated that:
·She and the applicant have been in a relationship since early 2016. Their relationship is strong, loving and long lasting. They will get married soon and will register their relationship.
·She is aware of the intention to cancel the applicant’s visa as a result of the convictions. The applicant has been in Australia for eight years without any certainty in his future and this has impacted on him psychologically. He also separated from his wife and children during his time in Australia. He has received regular counselling.
·She is aware that the applicant was born a Muslim but he did not practise Islam or agree with Islamic principles. After his arrival in Australia, he was introduced to Christianity and he has embraced it. He was baptised [in] April 2015 at [a named church].
·After they met and commenced their relationship, the applicant continued to receive counselling and was taking medication to assist him. He is a gentle, caring, committed and a devoted Christian. He is not a violent person.
·On or about [day in] January 2020, it was her grandson’s birthday and they were at home. The applicant had a few drinks and acted out of his usual behaviour. He was not himself. There was a verbal altercation and some physical pushing while he was heavily intoxicated. The police arrived and he was charged. The following morning, he realised what happened and he was apologetic and remorseful. She supported him when the matter was in Court. He has accepted his wrongdoing. This was not a serious matter “if one considers the criminality of those offences”.
·He has stopped drinking and has been receiving regular counselling. He understands that drinking is not a healthy choice for his psychological conditions and he has not consumed alcohol for about seven months.
·She loves the applicant and she considers him to be a person of excellent character. He is a hard-working and honest man. They are genuinely in a loving and caring relationship and assist each other in all aspects of their lives.
·The applicant’s conversion to Christianity was not welcomed by his wife and family in Iran. She is aware of Islamic laws in Iran and knows that if a Muslim converts to Christianity, that amounts to a very serious crime punishable by execution in Iran.
·She is an Australian citizen and the applicant is her partner. The cancellation of his visa has a direct and indirect impact on her welfare.
In submissions responding to the NOITCC, the applicant’s representative contended that the applicant’s visa should not be cancelled and that it is obvious that the commission of those offences occurred while the applicant was under the influence of alcohol in combination with medication.
The representative reiterated the applicant’s claims of conversion to Christianity which would lead to execution, that he is in a stable and loving relationship with [Ms A], that he is remorseful and apologetic, that he is dealing with the alcohol issue, and that as a human being he has made a mistake.
In accordance with s.424AA, the Tribunal discussed with the applicant the existence of a New South Wales Police Facts Sheet and a Court Order Notice document setting out the full sentence received. The Tribunal observes that the applicant pleaded guilty in relation to the above offences, the applicant was sentenced to a Community Correction Order for a period of [number] months commencing [in] February 2020 with conditions, namely not committing any offences while subject to the order, appearing before Court if called upon, being subject to supervision by a Community Corrections Officer, abstaining from alcohol for the period of the order, payment of $500 fines, an apprehended domestic violence order for two years to protect the two victims ([Ms A] and her daughter), disqualification for three months from holding any driver licence, and holding an interlock driver licence for 12 months. The Tribunal advised the applicant that it considered the above Court orders to be serious which the applicant accepted.
There is no dispute that the applicant has been convicted of offences against laws in NSW. Therefore s.116 (1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by r. 2.43(1)(oa).
For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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 applicant arrived in Australia in October 2012 as an irregular maritime arrival (IMA). He came to Australia seeking protection. He has two minor children living with their mother in Iran. On 8 February 2017, he was granted the SHEV which could provide a pathway and assuming he would meet the criteria, to a substantive visa. As discussed below, he continues to have protection claims. The applicant has [siblings] in Australia. He has been in a relationship with an Australian partner since September 2015[2] and they intend to marry. He is subject to a Community Correction Order for a period of [number] months commencing [in] February 2020 with conditions.
[2] Statutory Declaration of [Ms A], dated 20 September 2020.
The Tribunal is satisfied that the applicant’s travel to, and continued stay in Australia are consistent with the purpose of seeking protection. Furthermore, the Tribunal is satisfied that the applicant has a compelling need to remain in Australia.
The Tribunal gives weight to this consideration in the applicant’s favour.
·the extent of compliance with visa conditions
There is no evidence of non-compliance with any visa conditions.
The Tribunal is of the view that compliance with visa conditions is a legitimate expectation and as such, the Tribunal gives neutral weight to this consideration.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant has been granted a SHEV based on findings relating to protection claims. He gave evidence that he fears persecution on the basis of his Christian conversion. His partner, [Ms A] provided a Statutory Declaration dated 20 September 2020 supporting the applicant and, among other things, referring to the strength of their relationship which is loving and long lasting. The applicant gave evidence that he provides support to [Ms A] in helping her with household matters such as repairs.
The applicant has been in Australia since October 2012 and the Tribunal considers that period to be significant. He has worked and formed close relationships.
The Tribunal accepts on the evidence that the applicant has had challenges in terms of his alcohol and drug misuse which have had an impact on him legally, psychologically, socially and in other contexts. The Tribunal accepts that the applicant is making genuine attempts to address the substance misuse. The Tribunal has been provided with a copy of [Agency 1’s] report dated 23 September 2020 noting that the applicant has been attending the Centre concerning his “drug and alcohol issues” and that he was assessed as having “depression and anxiety issues…as a result of being separated from his wife and children…”.
The applicant gave evidence that he has two children - sons aged [age] and [age] years old and that he has not seen them since he came to Australia. He said he is not divorced but separated. The applicant has [siblings] in Australia on subclass 790 visas.
The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant further mental health issues and that separation from [Ms A] will also cause adverse impacts on both of them. Those impacts however need to be considered in the context of the applicant’s family circumstances particularly the fact that his children are in Iran and that the cancellation of his visa could potentially mean reuniting with his children, resulting in a positive impact. In saying so, the Tribunal is mindful that the applicant has not seen his children since his arrival in Australia and that due to the protection claims, he might not be returned to Iran and reunite with his children.
On balance, the Tribunal is satisfied that cancelling the visa could result in hardship including psychological, financial, emotional and relationship hardship but that hardship needs to be considered in the context of the offending behaviour related to [Ms A] and her daughter [Ms B] who was a minor at the time of the offending incident – she was [age] years old. The Tribunal is not judging [Ms A’s] support for the applicant but from an objective viewpoint (the conviction), it is reasonable to be concerned about a relationship that involved an incident that led to the applicant’s conviction. The applicant has been convicted of serious offences, including common assault. The Tribunal has carefully considered the submissions that the offences are at the lower end of criminality, but the Tribunal is of the view that this does not mean that physical violence is not serious. The Tribunal is careful not to make gender-based points and the Tribunal recognises that both males and females can and do commit violent physical offences. The applicant’s conviction relates to violence against two women, arguably vulnerable. The daughter [Ms B] was scared, as evident from the NSW Police FACTS SHEET.
In accordance with s.424AA, the Tribunal discussed with the applicant information contained in the NSW Police FACTS SHEET, dated [in] January 2020, including the applicant punching the fridge twice, kicking the fridge, forcing a door open, swinging arms in a violent manner, hitting [Ms B], slapping [Ms B] with an open palm, and [Ms B] feeling scared. The Tribunal indicated that physical violence is serious and unacceptable. In response, the applicant said at that time he had taken his medication but it was like “rough playing…joke…accepted by Iranians”. He said [Ms B] has previously hit him jokingly, by throwing an egg and he was hospitalised for one day. The Tribunal noted that it appears that the relationship with [Ms B] is not healthy but marked by violence. He said rough play is culturally acceptable. Although the Tribunal does not wish to take comments out of their context, the applicant’s evidence that there is a cultural element that rough play is acceptable concerns the Tribunal.
The Tribunal has carefully considered the degree of hardship and in the circumstances, the Tribunal gives limited weight to this consideration in the applicant’s favour.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the cancellation arose were as a result of the applicant being convicted of several offences. As outlined above, the Tribunal takes the view that the offences are serious.
The applicant gave evidence that he has lived in Australia for years and had been depressed. He could not sleep. He was lonely and away from his family so he started drinking. He said he could not manage his life and at times he was hungry. He spoke to his doctor and started medication that led to liver and other health issues. He said he is a good person, has good relationships with the neighbours and always paid his rent. He said he did not want to be forced to do anything that he did not want to do.

The applicant has pleaded guilty as charged. The applicant explained that he has a good relationship with [Ms A] and her family and he did not intend for the incident to happen. He said that he is now invited to the daughter’s birthday. In relation to the AVO, he said he was told by the police not to consume any alcohol for two years.
The applicant expressed his apologies and remorse. He said he has apologised to the family. The applicant noted that he would not conduct himself in this manner again and that he has taken steps to ensure that the offending behaviour does not reoccur.
The Tribunal advised the applicant that the information in the Police Facts Sheet suggests that the applicant was violent during the incident and that he had scared the victims. In accordance with s.424AA, the Tribunal discussed with the applicant the COURT ORDER NOTICE, dated [in] February 2020, located in the Departmental file, and noted that the Court imposed serious orders reflecting the seriousness of the offences. In response, the representative explained that the AVO does not prevent the applicant from seeing [Ms A] or her daughter. The Tribunal observes that this is correct; the AVO stipulates that in relation to [Ms A] and her daughter, the applicant must not “…assault, harass, or intimidate them…intentionally or recklessly destroy or damage any property…approach or be in the company…for at least 12 hours after drinking alcohol or taking illicit drugs”. The representative indicated that the applicant is practically living with [Ms A], that the AVO was sought by the police and that the Protected Person ([Ms A]) did not want the AVO. The applicant confirmed that he and [Ms A] are on good terms.
As mentioned and in accordance with s.424AA, the Tribunal discussed with the applicant information contained in the NSW Police FACTS SHEET, dated [in] January 2020, including the applicant punching the fridge twice, kicking the fridge, forcing a door open, swinging arms in a violent manner, hitting [Ms B], slapping [Ms B] with an open palm, and [Ms B] feeling scared. The Tribunal indicated that physical violence is serious and unacceptable. In response, the applicant said at that time he had taken his medication but it was like “rough playing…joke…accepted by Iranians”. He said [Ms B] has previously hit him jokingly, by throwing an egg and he was hospitalised for one day. The Tribunal noted that it appears that the relationship with [Ms B] is not healthy but marked by violence. He said rough play is culturally acceptable.
In oral submissions to the Tribunal, the representative asked the Tribunal to set aside the cancellation on discretionary grounds and that the offending incident was alcohol-related (the applicant had consumed 12 beers on the day) and that the offence is at the lower-end of seriousness. The representative indicated that the applicant understands the importance of following Australia’s laws and drew attention to the good relationship the applicant has with [Ms A’s] family and that it is not violent. The representative noted the applicant’s intention to marry [Ms A] when the issue with his marriage in Iran is resolved, that the applicant has taken positive steps to address his drinking issue, that he has not consumed alcohol for a year, that the counsellors are happy with the applicant’s progress, and that the applicant is of good character. The representative noted that the applicant continues to contribute to Australia’s economy, to assist [Ms A] in many aspects and that he recognises the seriousness of his conduct for which he is genuinely remorseful. The representative noted that the Court had accepted the applicant’s apology and that the applicant had purchased a new fridge to the family.
The applicant’s evidence that there is a cultural element that rough play is acceptable has concerned the Tribunal. The Tribunal does not profess to be a cultural expert, but it is evident that the applicant has committed offences under NSW laws for which he has been convicted.
The Tribunal has noted the applicant’s version of the events. The Court’s finding is that the applicant had committed the offences with which he was charged. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
Although there are explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control; the consumption and misuse of alcohol are matters generally within a person’s control and there is no evidence before the Tribunal to suggest that the applicant was forced, or encouraged to drink as much as he did at a child’s birthday party, and whilst on medication. In any case, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions. The Tribunal is of the view that it is reasonable to assume that the Court took relevant matters into account.
The Tribunal gives this consideration significant weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant responded to the matters raised in the NOITCC.
The Tribunal gives this aspect weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellation under s.140.
The Tribunal gives this consideration neutral weight.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s.46A and s.48A of the Act which means that he could face difficulties in applying for any further visas in Australia and in being granted an Australian visa, unless the Minister intervenes. He will also be subject to Public Interest Criterion (PIC) 4013.
Although the Tribunal considers potential detention, removal from Australia, the impacts of ss.46A and 48A and PIC 4013 bar to be intended legislative consequences, in the applicant’s case particularly because he has been granted the SHEV based on protection claims as well as his mental health issues, those consequences are important.
The Tribunal gives this aspect weight in the applicant’s favour.
·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has two children, sons aged [age] and [age] years old, [who] live in Iran. Australia is a signatory to several international instruments, including the United Nations Convention on the Rights of the Child done at New York on 20 November 1989 (CROC). Australia does not have international obligations under the CROC to children not living in Australia.
The applicant gave evidence that he is of the Catholic faith and that he converted to Christianity in [Country 1] in 2009/2010 but he does not have evidence of his conversion at that time. He said at that time, he was involved in tourism and noticed the differences between Christianity and Islam. He went to Christian places in [Country 1] and [Country 2], as part of his job. He said he started studying the Bible and became absorbed in Christianity. He said when he was found out, a complaint was filed against him by a Muslim organisation.
The Tribunal pressed the applicant for more details about his conversion. He said he started to work in [Country 1] from 2002 and as part of his job, he started going to Christian places in [Country 1] and [Country 2] to show tourists. The Tribunal asked the applicant again about when he converted to Christianity and he said between 2008 and 2012 when he got to know [Ms C] who is of the Catholic faith. He said [Ms C] was treated very badly by the Iranian Embassy and as a result she changed her mind about marrying him and join him in Iran. He said she introduced him to Christianity and that he was baptised in [Country 1] between 2008 and 2010. He said he has memory problems and cannot recall the exact date.
The Tribunal asked the applicant a number of questions and the applicant answered in a manner commensurate with a practising Christian. He understood the meaning of the Holy Trinity, the role of the Pope, and other concepts. He said he reads the Bible.
The applicant confirmed that the Christian-related claims were made in the application for a protection visa.
The applicant provided to the Tribunal a copy his Baptism Certificate which indicates that the applicant was baptised [in] April 2015. He also provided copies of documents showing the applicant’s involvement in Christian-related activities. The Tribunal noted that it would consider further the genuineness of the Christian-related activities
The Tribunal notes that the applicant has been granted the SHEV and that he continues to engage Australia’s obligation based on his protection claims, including the conversion to Christianity. On the evidence, the Tribunal is satisfied that in case of cancellation, there would be breach of Australia’s international obligations, including non-refoulement.
The Tribunal gives this aspect weight in the applicant’s favour.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The SHEV is not a permanent visa. The Tribunal has dealt with the applicant’s circumstances under separate considerations. In any event, the Tribunal gives weight to the applicant’s contribution in Church and volunteering with [a Christian organisation].
·any other relevant matters
There are no other matters requiring consideration.
CONCLUDING REMARKS
The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal takes the opportunity to express its concerns about the conduct of the applicant during a child’s birthday party. His conduct has impacted on victims who were known to him and one of whom was a minor at the time of the incident. Although, [Ms A] has continued to show her support to the applicant and the Tribunal has taken this into consideration but that support, in the Tribunal’s opinion, does not overcome the seriousness of the applicant’s conduct which involved physical violence, inconsistent with our community standards. The Tribunal acknowledges that the victim’s views may be relevant however there has been an independent legal process through the criminal justice system that found that the applicant is guilty of those offences.
Although from a numerical perspective, it would appear that there are more considerations in favour of the applicant and neutral, than those in favour of cancellation. The Tribunal appreciates that the task of the exercise of discretion is not a numerical and or formulaic process but rather a balancing consideration of all relevant aspects, the balance of which in this case weigh in the favour of cancellation. The Tribunal is satisfied that those considerations favourable to cancellation outweigh those in favour of the applicant.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.
Antoinette Younes

Senior Member

[2021] AATA 1606

27 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice