2017189 (Refugee)

This matter concerned an application for review of a delegate's decision to cancel the applicant's Subclass 785 (Temporary Protection) visa under s.116(1)(g) of the Migration Act 1958. The applicant, a citizen of Pakistan, had arrived in Australia in 2012 and was granted a protection visa in 2018 based on his well-founded fear of persecution as a Shia Muslim of Turi-Bangash tribal background. The cancellation was based on criminal convictions in Australia. The applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the grounds for cancellation were made out, and if so, whether the Minister should exercise the discretion to cancel the visa, considering all relevant circumstances. Specifically, the Tribunal was required to assess the weight to be given to various factors, including the applicant's history of compliance, the extent of hardship if the visa were cancelled, the circumstances surrounding the offending, and Australia's international obligations, including non-refoulement and complementary protection. The Tribunal also considered the applicant's mental health condition, schizophrenia, and its impact on his offending and potential treatment upon return to Pakistan.

The Tribunal found that the ground for cancellation under s.116(1)(g) and regulation 2.43(1)(oa) was established due to the applicant's criminal convictions. However, the Tribunal then engaged in a detailed consideration of its discretion. It noted that while the security situation in Pakistan for Shia Muslims had improved, reducing the risk of harm based on religion or ethnicity, Australia's international obligations were still engaged under complementary protection provisions. The Tribunal found a real risk of significant harm to the applicant if returned to Pakistan due to his schizophrenia, particularly the likelihood of relapse, potential detention, and subsequent cruel and inhuman treatment or punishment arising from the substandard conditions and inadequate care in Pakistani detention facilities. The Tribunal also considered the hardship the applicant would face, including psychological distress and potential financial difficulties, and weighed these factors against the seriousness of his offending, which it found to be mitigated by his underlying, previously undiagnosed schizophrenia.

Ultimately, the Tribunal concluded that the international obligations, the hardship to the applicant, and other mitigating factors outweighed the grounds for cancellation. The Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 785 visa.