2015286 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant whose Safe Haven Enterprise (subclass 790) visa was cancelled by the Minister. The applicant, who arrived in Australia as an unauthorised maritime arrival in 2012 and was granted a protection visa in 2017, was convicted in February 2020 of driving with a prescribed concentration of alcohol, common assault (domestic violence), and property damage. Following these convictions, the Department issued a Notice of Intention to Consider Cancellation, to which the applicant responded, detailing his conversion to Christianity in Iran, his fear of persecution upon return, his genuine and long-lasting relationship with an Australian citizen, and his remorse for his criminal conduct, which he attributed to intoxication and depression medication.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether the Minister's discretion to cancel the visa should be exercised. The relevant prescribed ground for cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth) was engaged by the applicant's convictions. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including the applicant's protection claims, his relationship with an Australian citizen, his compliance with visa conditions, and the hardship that cancellation might cause.

The Tribunal found that the ground for cancellation under section 116(1)(g) was satisfied due to the applicant's criminal convictions. While this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. It acknowledged the applicant's compelling need to remain in Australia due to his protection claims based on religious conversion and his significant relationship with an Australian citizen, with whom he intended to marry. The Tribunal also noted the applicant's compliance with visa conditions and his genuine efforts to address his substance misuse and mental health issues. However, the Tribunal ultimately concluded that, considering all circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.