2106553 (Refugee)

[2022] AATA 2417

2106553 (Refugee) [2022] AATA 2417 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106553

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Melissa McAdam

DATE:30 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Statement made on 30 June 2022 at 11:49am

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – applicant convicted of several offences – personal efforts to rehabilitate – race – Hazara – non-refoulement obligations – Taleban taking control of Afghanistan – indefinite period in detention – family unity – homelessness – mental health issues – decision under review set aside

LEGISLATION

Crimes Act 1900 (NSW), s 35
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25
Migration Act 1958, ss 36, 46, 107, 140. 197-198
Migration Regulations 1994, Schedule 2, cl 790.511; r 2.43

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground for cancelling the applicant’s visa applied. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Section 107 Notice, NOICC

3. On 5 March 2021 the department delegate sent a Notice of Intention to Cancel the applicant’s visa, under section 107 of the Act (‘the NOICC’) to the applicant.  In the NOICC the delegate set out the following:

   It has come to my attention, as a delegate of the Minister, that there appears to be a ground for cancellation of your Safe Haven Enterprise (subclass 790) visa granted on 20 October 2017 under section 116 of the Migration Act 1958 (the Act):

   Section 116 Power to cancel
   (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.

   (2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   A prescribed ground appears to exist under regulation 2.43(1 )(oa) of the Migration Regulations 1994 (the Regulations) which states (in part):

   Regulation 2.43 Grounds for cancellation of visa (Act, s116)

   (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:

   (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));

   The Act gives you the opportunity to comment on this ground for cancellation and to give reasons why your visa should not be cancelled.

   Particulars of the ground for cancellation and information indicating the ground for cancellation
   appears to exist:

   The New South Wales Police (NSWPOL) has advised the Department that you have been found guilty and convicted of the following offences in New South Wales:

COURT AND DATE	CONVICTION	OUTCOME/SENTENCE
[Court 1] [February] 2021	Shoplifting-Value <=$2000 - T2 Enter Inclosed Land Not Presc Premises W/O Lawful Excuse	Fine: $800 To Property Owner Conviction With No Other Penalty
[Court 2] [February] 2021	Shoplifting-T2 Failure to Appear In Accordance With Bail Acknowledgment (Conviction [number]) Failure to Appear In Accordance With Bail Acknowledgment (Conviction [number]) Possess Schedule 9 Substance	Community Correction Order: 12 Months Commencing [February] 2021 Concluding [February] 2022
[Court 1] [August] 2020	Attempt Stalk/Intimidate Intend Fear of Harm (Personal)-T2	Community Correction Order: 18 Months Commencing [August] 2020 Concluding [February] 2022
[Court 3] [June] 2019	Behave in Offensive Manner In/Near Public Place/School	Fine :$400
[Court 3] [June] 2019	Resist or Hinder Police Officer in the Execution of Duty	Fine: $500
[Court 4] [June] 2018	Common Assault-T2	Fine: $1,000

Based on the information above, it appears that a ground exists to cancel your visa under s116(1)(g) of the Act because the prescribed ground appears to exist at reg. 2.43(1)(oa). This is because you hold a Safe Haven Enterprise visa, which is a temporary visa other than a subclass 050 Bridging visa, a subclass 051 Bridging visa or a subclass 444 Special Category visa and you have been convicted of an offence that is against a law of a State, namely New South Wales.

1. The applicant was required to respond to the NOICC in writing, within 5 working days of deemed receipt of the notice.

2. According to the delegate’s decision record the applicant did not respond to the NOICC and the delegate cancelled the applicant’s visa on 9 April 2021.

3. According to the department’s file records the applicant sent a handwritten response in English to the department of 14 April 2021, that is, after the delegate made her decision. In the applicant’s response he stated the following:

   -He asks the department to reconsider cancelling his visa.

   -He understands he has done the wrong thing and deeply regrets his actions. He solemnly swears he will not re-offend.

   -He fears if he is deported to Afghanistan he will be killed by the Taleban. In Afghanistan he worked as [an occupation 1]. He worked on [specified jobs]. The Taleban went to his workshop and took one of his co-workers. They kept returning to try to get the applicant. He fled Afghanistan in fear for his life.

   -He has lost his wife, children and mother.

   -He is willing to accept whatever punishment is seen fit for his crimes in Australia. He undertakes to follow any corrections orders or courses to help him not re-offend.

   -He had been working in [an occupation 1 business] in Adelaide.  He wants to continue working in Australia. He loves Australia and finds it a beautiful country he will not take for granted ever again.

   -He wants a last chance to prove he can do the right thing.

4. On 5 May 2021 the applicant sent a further handwritten response in English to the department delegate stating:

   -He did not think the ground for cancelling his visa existed as it did not take into account his personal circumstances relating to the political economic and safety ramifications of his situation.

   -The relevant legislation is dated and fails to identify fair and reasonable cancellation grounds including:

   ·The severity of the offences and degree of risk to the community.

   ·His convictions were for low to moderate risk offences with penalties of fines, community correction orders and relatively light sentences.

   ·The political stability of the visa holder’s native country, Afghanistan.

   ·The personal safety of the visa holder. He again referenced the threat to him from the Taleban in Afghanistan.

   ·He has lost contact with his family in Afghanistan.

   ·His chances of survival in Afghanistan are hindered and his return may jeopardise his family.

   -He came to Australia to flee Afghanistan and to be a working productive member of the Australian community.

   -He has complied with his visa conditions.

   -There is a threat to his and his family’s life if his visa is cancelled and he returns to Afghanistan.

   -The circumstances in which the offences arose were the result of mental pressure from being in fear for his life in Afghanistan, as well as poor life choices in New South Wales.

   -He is deeply regretful and has paid the consequences.

   -He feels his behaviour has been corrected and appreciates what an honour it is to live in Australia.

   -He has previously had amicable and positive relations with the department.

   Information to the Tribunal

5. On 18 May 2021 the applicant submitted a further handwritten letter to the Tribunal stating the following:

   -He was then in a Corrections Centre near [a named town].

   -Regarding his failure to meet the deadline he was incarcerated and his mail did not reach him in time. He was moved around between prisons and his mail took a long time to be re-directed to him.

   -In November 2020 he was near [a named train] Station and two males unknown to him began fighting.

   -He noticed there were children and women around and one of the men was brandishing a knife. The applicant didn’t want anyone hurt so he intervened in the fight. He was stabbed in the [area] and suffered severe nerve damage.  He can no longer feel or use [this body part].  He requires further surgery, upon his release, to recover. The surgical procedure is not available in Afghanistan.

   -After being taken to jail the applicant realised he needed to change.  He signed up for multiple courses including addiction, psychology and positive lifestyle programs. 

   -He has been abiding by the guidelines set by the Quran and has found God again.

   -He has learned he needs to take responsibility for his actions and not keep excusing his behaviour as he previously did.

   -Although his charges may appear small and minor he takes them very seriously and is embarrassed by his prior action.  He believes he is now in control of his actions and understands the consequences of poor choices.

   -He will continue with the programs and courses to improve himself.  He intends to work with the Parole Board to assist him to re-enter the workforce if given the opportunity.

   -If he is made to leave he will be at great risk and in fear for his life.  He has no family support in Afghanistan and would have no place to live or work. 

   -He has now built a foundation of friends who care about him in Australia. He has never felt more in control or supported. He will not offend again.

6. On 18 May 2021 the applicant submitted a further handwritten letter to the Tribunal stating the following:

   -He again referred to his past in Afghanistan and the threat to him from the Taleban.

   -When he arrived in Australia in 2013 with basic English it was a bigger struggle than he expected. It was extremely difficult for him to get a job or study. This caused him to make some stupid mistakes so he could feed himself.

   -After living in Adelaide he moved to Sydney in 2016.  Between 2018 and February 2021 he hit a low and committed some small offences that have resulted in his incarceration.

   -He will not make any more mistakes or commit any more crimes.

7. On 4 June 2021 the applicant submitted to the Tribunal a copy of a medical report dated 29 April 2021 referring to nerve damage in the applicant’s [body part] from an injury seven months prior, and his need for follow up surgery.

   Tribunal Hearing

8. The applicant appeared before the Tribunal by video on 1 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.  The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant has already served his time for his past convictions.  The only thing he has outstanding is the sentencing for a new conviction of ‘reckless wounding’.  He is due to be sentenced next month. His lawyer has told the applicant that he thinks the applicant will not have to return to jail because of the amount of time he has already served.  He pleaded guilty to the charge on the advice of his lawyer so will receive a discount on his sentence.

   b.If he is released from prison he will not get in trouble with the law again. He will change things.  He has gone through such a hard time and lived and learned. He has worked in the prison and gone to a workshop about addiction. One of the things he knows he must do is to not get involved with the wrong people again.

   c.He intends to contact the [Community Organisation 1] in [Suburb 1] for support when he is released. He will also look for work as [an occupation 1].  He thinks he can find this work because he has learned English better. He also worked as [an occupation 1] in Adelaide.

   d.He had very little education in Afghanistan.  He was able to attend school for one month in Adelaide, Australia.  He wanted to do further study in Australia but was not able to because of the type of visa he held.

   e.He has no family or relatives in Australia. When he first came to Australia he had no friends and he later came across people who were wrong for him.  He will avoid such people now.  He will avoid people with an addiction. He chose the wrong path and got involved with drugs.  He initially took them to feel calm. He had an addiction but he has managed to quit it while in jail.  He achieved this through a program and his own determination.

   f.It had been 9 years since he saw his family.  When he talked to his wife she kept pressuring him to do something.  But he could not go to Afghanistan because of the security situation and his life was in danger. The last time he contacted his wife and children they were in Afghanistan but he assumes they are now in Pakistan. He has not been in contact with them for quite a long time. They do not know he is in prison.

   g.About two or three months ago he was able to contact his mother.  She was very worried he had not contacted her in some time.  He told her he was in prison. It is very difficult for him to telephone his family because he is in prison and it costs over $35 to phone overseas.

   h.The applicant’s mother is in Kabul.  She used to live there with the applicant’s wife and children but they have gone to Pakistan. His mother now lives alone.  He thinks she did not go to Pakistan because she was not getting along with the applicant’s wife.

   i.The applicant thinks his wife and children are living alone in Quetta, Pakistan and are with UNHCR because they are seeking to try to go somewhere.  They are not lawfully in Pakistan. The applicant does not know who is supporting them.  Perhaps his wife’s sister is helping them. It is a very difficult time there.

   j.The applicant’s father is not alive. The applicant has a sister who lives in [Country 1].

   k.The applicant left Afghanistan at the end of 2012.  He did not live in Pakistan. In Afghanistan he lived in Maidan Wardak. He cannot return there because he had a problem with the Taleban when he worked there as [an occupation 1]. Now the Taleban are in control in Afghanistan. He cannot live in Kabul with his mother because the Taleban control Kabul.  It is worse now.

   l.He wants a second chance to prove himself. He won’t make mistakes again. He will find employment and not get involved with the wrong people. He wants to bring his wife and children to Australia. The applicant has [children of specified ages].  In Afghanistan they went to school but he does not know if they still do.

   m.If his visa remains cancelled his life will be ruined because he cannot go back to Afghanistan. Afghanistan is dangerous as the Taleban are running the country.

   n.In the past he did not have anyone here. When he called his wife they would get into arguments. She would tell him that they are both young and that they are wasting their lives being apart.  She told him he had to get her and the children with the applicant in Australia.  She was right but the applicant had no way to do this. He started using drugs because they made him calm.

   o.He has done a course in jail about drugs and addictions.  He has not completed the course because two days ago he was transferred to [Prison 1].  It is up to the prison authorities whether he is allowed to complete the course or not.  Through the workshop he learned not to get involve with wrong people, to have a positive aspect of life, and that drugs are bad and damage us.  If he is given a chance he wants to go to rehab on release.  He is no longer addicted to drugs but he wants to make sure he can stay off them.  He also wants to see a psychologist or counsellor to help him.  He will ask the [Community Organisation 1] in [Suburb 1] to help him find accommodation.

   p.He was working in the jail kitchen in his previous prison for 12 or 13 months before his transfer to [Prison 1]. He has not got involved in any fights or disturbances while in prison. The prison authorities won’t give him reports about his behaviour but perhaps they would give these to the Tribunal.

   q.He came here when he was about [age] years old and has been here 9 years.  He can’t mend anything he has done while he is prison.  But if he is in the community he can mend things and use the lessons he has learned.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The applicant’s ability to present his case

9. In the Tribunal’s view the applicant has been disadvantaged in his review application by not having the assistance of a competent and qualified legal practitioner, and by his incarceration.  It is obvious he was also disadvantaged at the primary stage in that his attempts to respond to the NOICC were delayed until after a decision had already been made.

10. The applicant spoke of the prohibitive expense of trying to contact his family overseas from inside the prison.  Case notes from the prison also reveal that almost all the applicant’s attempts to phone people in Australia for assistance, during the limited times he was assisted and permitted to do so in prison, were unsuccessful as the calls remained answered.

11. The applicant has therefore had very limited, almost nil, ability to gather and present supportive evidence in his review application.  A Tribunal hearing was conducted with the applicant by video with the applicant seated in a very small and barren room inside the prison, with an interpreter also appearing by video.  There were occasional technical difficulties during the hearing where contact with the applicant was lost.  The Tribunal acknowledges that such conditions are not ideal for an applicant to fully and comfortably present his or her evidence.  Despite this the applicant remained cooperative and calm and continued to make concerted efforts to provide meaningful evidence during the hearing. 

    The Cancellation Power

12. 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?

    s 116(1)(g) - prescribed ground

13. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

1. Regulation 2.43(1)(oa) states:

   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))

2. The applicant was the holder of a Subclass 790 Safe Haven Enterprise visa.  This is a temporary visa valid for five years.[1]

   [1] Subclause 790.511 of Schedule 2 of the Migration Regulations.

3. The applicant has been convicted of several offences against laws of the state of New South Wales.

4. The Tribunal is therefore 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

5. 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 annual (PAM3) ‘General visa cancellation powers’.

   Matters raised by the applicant

6. The applicant is not represented in the review and was not represented when the Department was considering cancellation of his visa.  The two documents written in English and submitted to the department shortly after it made the visa cancellation decision appear to be authored by different people in terms of style and content.  The handwriting in both letters is markedly different.  The Tribunal considers it possible the applicant received some non-qualified assistance within the prison system to write the two letters.  Most of the matters raised in the letters were amplified in further detail by the applicant in his Tribunal hearing.  He did not pursue the written objections regarding the unfairness of the visa cancellation but the Tribunal considers these below to the extent they are relevant to discretionary factors.

   Current attitude

7. The applicant provided written and oral evidence that he understands he has done the wrong thing and deeply regrets his actions.  He states he is determined not to re-offend and will undergo courses, change his behaviours and attitudes, and avoid the ‘wrong people’ in order to help him not re-offend.  He stated he is no longer addicted to drugs and is following the teachings of his religion.  He conveyed his belief that he is now in control of his actions. He spoke of his intention to seek support from the [Community Organisation 1] upon his release, to find employment as [an occupation 1] and to enrol in a rehabilitation course and seek counselling. The applicant repeatedly stated that he wants a second chance to prove himself, to make amends, and to use the lessons he has learned.

8. The applicant referred to having avoided conflict and disturbances while being detained in NSW prisons since February 2021.  He was unable to provide any records regarding his personal conduct in the prison system but suggested the Tribunal could obtain these itself.  The Tribunal therefore summonsed the applicant’s OIM case notes from the NSW Department of Communities and Justice.  These notes confirm the applicant’s evidence that he has not been involved in any disturbances or conduct issues since being imprisoned in February 2021.  The case notes repeatedly highlight that the applicant is quiet, cooperative, always polite and courteous and maintains good personal hygiene and a tidy cell. The later notes refer to the applicant becoming well liked amongst staff and other inmates.

9. The OIM notes also confirm that the applicant had regular work in the [Prison 2] facility’s kitchen from June 2021 until his transfer to another prison to await his sentencing in late May 2022.  The notes describe the applicant as being punctual, good at listening and following direction, trusted to work without being watched or prompted and that he works well with others.

10. There is no indication in the OIM notes or elsewhere that the applicant has taken drugs while in prison.

11. The OIM notes record that in late March 2022 an assessment of appropriate courses and a case plan for the applicant was undertaken and a list of courses and referrals, including one to [Agency 1], was devised.  There is no indication that the referrals were progressed within the next two months in which the applicant remained in [Prison 2].

12. The applicant presented at his Tribunal hearing as a quietly spoken, polite and sincere person. He did not show any signs of agitation or anger even when speaking of troubling personal events and his fears for his family.  He was cooperative in the hearing and did not hesitate in responding to the Tribunal’s questions.

13. Given the applicant has not yet had the opportunity to be assessed by [Agency 1] or a psychologist, there is not a great deal of information before the Tribunal regarding the applicant’s current mental health, attitudes and behaviour.  However the Prison OIMS Note, the applicant’s testimony and his presentation at hearing all support his statement to now be in control of his behaviour and to be able to conduct himself responsibly.  They also reflect that the applicant’s personal efforts to rehabilitate himself while in prison have been positive.  The Tribunal therefore gives this factor weight in favour of the applicant and not cancelling the visa.

    Contribution to Australia

14. The applicant worked for a few years in [an occupation 1 business] in Adelaide.  The Tribunal accepts that the applicant’s work as [an occupation 1] in Australia and payment of taxes has contributed to the country.

15. The Tribunal also accepts the evidence that the applicant worked industriously for many months in the prison kitchen in the [Prison 2] facility.  The Tribunal considers this a further contribution to Australia.

16. The applicant’s past criminal behaviour has not contributed to Australia.  It has caused serious detriment to individuals and the community and required responses and interventions from numerous government bodies and authorities.

17. The applicant stated he wants the chance to work and prove he can do the right thing in Australia.  Based upon his presentation at hearing and the official observations by the prison authorities the Tribunal considers that there is potential for the applicant to make further meaningful contributions to Australia.

18. However on balance the Tribunal considers that the applicant’s past criminal conduct outweighs his positive contributions to Australia so it gives this factor weight in favour of cancelling the visa.

    The unfairness of the cancellation

19. The applicant or someone on his behalf submitted to the department that “the relevant legislation is dated and fails to identify fair and reasonable cancellation grounds” by not considering “the severity of the offences and degree of risk to the community”.

20. The Tribunal does not accept this submission as such concerns are adequately addressed by the discretionary element in assessing whether or not to cancel the applicant’s visa.

    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

    Non-refoulement obligations

21. The applicant claims to fear being killed by the Taleban if he is deported to Afghanistan due to being a Shia Hazara and his former work in Maidan Wardak as [an occupation 1] who did work for the [specified employers].  The applicant’s fear was assessed as well-founded in October 2017 by the department which granted the applicant a protection visa (the SHEV).  Since that time the situation in Afghanistan has deteriorated significantly with the Taleban taking control of the country in August 2021.  The applicant claims his family have now left Maidan Wardak with his mother staying in Kabul and his wife and children likely in Pakistan.

22. In early September 2021, the Taliban announced the formation of an ‘interim government’, declared once again an ‘Islamic Emirate of Afghanistan’ and appointed ‘mostly Pashtun and chiefly long-serving Taliban commanders’ to key government positions.[2] According to DFAT, the Taliban, who had previously presided over a period of considerable hardship for ethnic and religious minorities, promised an ‘inclusive’ government that would be representative of Afghanistan’s ethnicities and claimed to have fulfilled this by appointing a handful of Uzbeks, Tajiks and ‘a single Hazara’ to mostly technical roles.[3]

    [2] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.

    [3] Ibid

23. The Taliban is divided into factions of moderates and hardliners with different aims and expectations of governance. The factional nature of the Taliban, with different sub-groups within the organisation are competing for influence and control. The group also appears to be struggling to regulate the actions of tens of thousands of foot soldiers, which means that ‘behaviour on the ground, including violence towards at-risk groups, may be inconsistent with proclamations from the central Taliban authorities, or may reflect local grievances.’[4]

    [4] Ibid

24. DFAT has assessed that whilst Afghanistan’s security situation remains volatile, the country as a whole is relatively ‘less dangerous’ due to the cessation of most armed conflict after the Taliban takeover in August 2021. Nevertheless, DFAT has also noted that Afghanistan ‘remains a dangerous country with ongoing threats of terrorism and kidnapping and other forms of violence.’[5]

    [5] Ibid

25. The European Asylum Seekers Office (EASO) has likewise confirmed that the situation in Afghanistan remains volatile, rendering any conclusive assessment of international protection needs particularly difficult.[6] In its November 2021 Country Guidance, EASO highlighted the following elements:

    ·Due to the short time since the Taliban takeover, information is in general limited and/or conflicting.  Limitations with regard to reliable reporting should also be taken into account, as under-reporting from Afghanistan or certain parts of the country is likely.

    ·While the future behaviour of the Taliban lacks certain predictability, profiles targeted by the Taliban may be at an increased risk, taking into account this actor’s increased capabilities and territorial control.

    ·While the frequency of security incidents and the number of civilian casualties have generally decreased since the Taliban takeover, the future risk of indiscriminate violence in any part of the country should be assessed with caution and based on the most recent information concerning the dynamics in the particular area as well as the country as a whole.[7]

    [6] EASO, Country Guidance: Afghanistan Common analysis and guidance note, November 2021, Ibid

More recently, the United Nations High Commissioner for Human Rights observed that despite a significant decline in armed hostilities in Afghanistan with a drastic reduction in civilian casualties, ‘the full range of civil, political, economic, social and cultural rights of the people of Afghanistan has regressed.’[8] Similarly, in February 2022, the UK Home Office reported that the Taliban generally maintains control of all areas of the country and that ‘the levels of indiscriminate violence arising out of conflict have significantly diminished in all areas of the country.’[9] The same report, however, also referred to a briefing to the UN Security Council on 26 January 2022 by the Secretary-General’s Special Representative for Afghanistan, Ms Deborah Lyons, stating: ‘Since my previous briefing it appears that the de facto authorities have attempted to constrain the Islamic State’s ability to carry out major attacks, and yet small-scale attacks are still being carried out, particularly against religious minorities.’[10]

[8] United Nations High Commissioner for Human Rights, Situation of human rights in Afghanistan: Report of the United Nations High Commissioner for Human Rights (A/HRC/49/24), UNHCHR, 4 March 2022.

[9] UK Home Office, Country Policy and Information Note - Afghanistan: Security situation, February 2022, AFG CPIN Security situation (publishing.service.gov.uk)

[10] Ibid

Sources suggest that the Islamic State in Khorasan Province (ISKP) is a significant contributor to the volatility and incidents of violence in Afghanistan. ISKP is the Afghanistan offshoot of Daesh and is strongly opposed to Shi’a Muslims and the West. The group has been responsible for multiple mass-casualty terrorist attacks since August 2021. According to DFAT,

ISKP carried out dozens of terrorist attacks in 2020 and 2021 against the erstwhile Afghan national government and also the Taliban. Terrorist attacks remain possible anywhere in the country, but major attacks are most likely in key cities given the increased profile ISKP gets from such attacks...

ISKP grew in strength in 2021, including through recruitment of disaffected Taliban members, as well as fighters released from prisons…ISKP has claimed responsibility for the bombing at Kabul’s Hamid Kharzai airport on 26 August 2021; the suicide bomb attack on a Shi’a mosque in Kunduz province on 8 October 2021, which killed more than 70 people, chiefly Hazaras; and another suicide bombing of a Shi’a mosque in Kandahar province, the Taliban’s ‘home’ province, which killed 63 people on 15 October 2021, as well as the hospital bombing in Kabul on 2 November 2021 which killed 25. ISKP has also reportedly been responsible for dozens of smaller attacks since August 2021.[11]

[11] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.

There are credible reports of continued high levels of sectarian-motivated violence against the Shi’a Muslims, most of whom also belong to the Hazara ethnic group. EASO has reported that attacks by insurgent groups have mainly been attributed to ISKP, who consider Hazara/Shi’a as heretical and legitimate targets. The ISKP also targets the Hazara due to their perceived closeness and support for Iran and the fight against the Islamic State in Syria. Attacks on the Hazara/Shi’a minority population have targeted places of gathering, such as mosques, religious commemorations, weddings and other sites, including hospitals in Hazara-dominated neighbourhoods in large cities, including Kabul and Herat, where the Shi’a community has been disproportionately represented among civilian casualties.[12]

[12] EASO, Country Guidance: Afghanistan Common analysis and guidance note, November 2021, >

Similarly, the UK Home Office has reported an increase in attacks by ISKP targeting civilians, particularly Shi’a Hazaras, since the Taliban takeover. These attacks appear to have occurred mostly in northern and southern provinces as well as in Kabul City.[13]

[13] UK Home Office, Country Policy and Information Note - Afghanistan: Security situation, February 2022, AFG CPIN Security situation (publishing.service.gov.uk)

In its most recent Thematic Report in relation to Afghanistan, DFAT referred to statements by the Taliban, ‘indicating possible support’ for the Hazara victims of ISKP violence. However, the Report also stated:

While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces... Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).[14]

[14] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.

DFAT has assessed that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. DFAT has also assessed that Shi’as face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, and that this risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[15]

[15] Ibid.

As a Shia Hazara who has previously come to the adverse attention of the Taleban the Tribunal is satisfied there is a real chance of the applicant facing serious harm from the Taleban, or the ISKP, on return to Afghanistan.  The Tribunal considers the chance of harm exists in Kabul, particularly from the ISKP, in the applicant’s home area of Maidan Wardak and while travelling anywhere in Afghanistan.

The Tribunal finds that the essential and significant reasons for the serious harm feared by the applicant are his race as an Hazara and his religion as a Shia. The Tribunal finds that the applicant’s real chance of persecution relates to all areas of Afghanistan.

The Tribunal is satisfied that the applicant still meets the definition of a refugee and that he continues to be a person in respect of whom Australia owes protection obligations. 

There is some potential, albeit limited, for Australia to remove the applicant to Afghanistan if a specific set of circumstances and ministerial actions arise, as detailed further below.  In the event of these occurring the cancellation of the applicant’s visa could result in Australia’s international obligation of non-refoulement being breached.

The Tribunal therefore gives this factor weight against the cancellation of the applicant’s visa.

Family Unity

The applicant’s mother is in Kabul and the applicant occasionally contacts her there.  As far as the applicant is aware his wife and children have gone to Pakistan where his wife hopes for resettlement assistance from the UNHCR.  There is no other available evidence that they are elsewhere so the Tribunal will proceed on the basis that they are in Pakistan.

The Tribunal accepts the applicant’s evidence that his wife and children are in a precarious position in Pakistan and have applied to the UNHCR office there for assistance to get them to another country.

If the applicant’s visa is cancelled he will either remain for an indeterminate period in detention in Australia or be forced or feel compelled to return to Afghanistan.  His ability to obtain entry to and residence in another country is unlikely.  He has no lawful right to enter or reside in Pakistan. If he returns to Afghanistan he may be reunited with his mother at least for a brief period in Kabul but there does not seem a likely prospect of reunification with his wife and children, given they would fear return to Afghanistan. The lack of safety for the applicant in Kabul would also mean he could not remain there.

It may be possible for the applicant to unlawfully enter Pakistan, locate his wife and children and resume living with them. However the obstacles to successfully doing this and to maintain unlawful residence in Pakistan are substantial so that the Tribunal considers it too speculative to give weight to.

Alternatively, if the applicant’s visa is not cancelled there is some prospect for the applicant to one day obtain a visa in Australia which allows him to sponsor his wife and children, and even his mother, to join him in Australia.

1. Therefore the chances of family unity, or reunification, for the applicant, his wife, children and mother are greater if the applicant’s visa is not cancelled.

2. The Tribunal accordingly gives this factor weight against the cancellation of the applicant’s visa.

   Best Interests of the Child

3. The applicant has [children of specified ages].  In Pakistan they have no security of residence, and no right of access to secondary education.  Given the applicant’s imprisonment and prior lack of employment due to his drug dependency, he has been unable to financially support them in recent years. The Tribunal considers it likely they and their mother would have no independent source of income and would be heavily reliant upon other relatives for both accommodation and basic needs.

4. The Tribunal therefore considers it likely that the applicant’s children are in a near destitute situation in Pakistan and that their access to education, health care, and sustenance is restricted or threatened.

5. Given the large number of refugees requiring resettlement through UNHCR, particularly in Pakistan, the chances of the family successfully obtaining this in the near future are not strong.  The children will therefore be subject to a lengthy period, possibly in terms of years, of living in deprived circumstances.

6. If the applicant’s visa is not cancelled he may have the opportunity to obtain a visa which allows him to bring his children to Australia.  Given the benefits of living in a secure country, with access to education and care, the Tribunal considers it would be in the children’s interests for them to have the opportunity to come to Australia. Further, being reunited with their father in Australia and having his ongoing care and contact with them would also be significantly in the children’s interests.

7. The Tribunal accordingly gives this factor weight against the cancellation of the applicant’s visa.

   The extent of compliance with visa conditions

8. The applicant stated he has not breached his visa conditions.

9. The applicant’s SHEV was subject to conditions 8565 and 8570.  Condition 8565 requires the applicant to notify the department of changes in his residential address. Condition 8570 requires the applicant not to enter Afghanistan, being the country of reference for the grant of his protection visa. 

10. There is no evidence before the Tribunal that the applicant has breached Condition 8565.  Further, according to the Department’s Movement Records the applicant has not left Australia since arrival here in 2013. The Tribunal is therefore satisfied he has not breached Condition 8570.

11. The Tribunal accordingly gives this factor weight in the applicant’s favour and against the cancellation of his visa.

    Past and present behaviour of the visa holder towards the Department

12. The applicant stated that he has previously had amicable and positive relations with the Department.  There is no evidence available to the Tribunal to contradict the applicant’s statement.  The Tribunal also notes that the applicant has been cooperative with the Tribunal.

13. The Tribunal therefore gives this factor weight in the applicant’s favour and against the cancellation of his visa.

    The circumstances in which ground of cancellation arose.

14. The applicant stated that the circumstances in which the offences arose were the result of mental pressure from being in fear for his life in Afghanistan, as well as poor life choices after he moved to Sydney.  He spoke of his struggles in Australia given the lack of any family or friends present here, his lack of fluent English, and the restrictions that the SHEV presented in his attempts to study, find work and bring his family to safety.  His move to Sydney exposed him to the wrong people and to drugs which he developed an addiction for.  He had left his family in Afghanistan in order to find a secure future for them and his wife was repeatedly querying and quarrelling with him why he could not do this. He explained that taking drugs gave him some temporary release from the pressures and anxieties he felt in being unable to bring his family to Australia and his overall difficult situation.

15. The Tribunal notes that the applicant’s SHEV is a temporary visa. This means he is not readily entitled to the reduced tertiary study fees that Australia permanent residents and citizens are.  Further, as stated by the applicant, a SHE visa holder cannot sponsor members of their family unit to Australia.  The Tribunal accepts that the limitations presented by the SHEV could create a situation of great stress and distress for the applicant.  Recent and past studies have also acknowledged the adverse mental health impacts, including risk of suicide, for such visa holders.[16]

    [16] See e.g. Procter N, Kenny MA, Eaton H, Grech C, ‘Lethal Hopelessness: Understanding and Responding to Asylum Seeker Distress and Mental Deterioration’ (2018) 27(1) International Journal of Mental Health Nursing 448; UNHCR (2018), ‘Fact Sheet on the Protection of Australia’s So-Called “Legacy Caseload” Asylum-Seekers’ 1 February, Australian Human Rights Commission, 2019, ‘Lives on Hold, Refugees and asylum seekers in the ‘Legacy Caseload’; Momartin S, Steel Z, Coello M, Aroche J, Silove D,  Brooks R, ‘A comparison of the mental health of refugees with temporary versus permanent protection visas’, Med J Aust 2006; 185 (7), 357-361; The Royal Australian College of Physicians, 2015, ‘Policy on Refugee and Asylum Seeker Health’.

16. The Prison OIM case notes recommended that the applicant be referred to [Agency 1] for a trauma assessment due to his experiences in Afghanistan.  The Tribunal accepts there is a possibility the applicant has been suffering trauma while in Australia which he has not received treatment or counselling for.

17. The OIMs notes include an “Assessment and Planning Interview” on 24 February 2022 as part of the applicant’s Sentencing Assessment Report (‘SAR’) in relation to his recent conviction. The record of the interview refers to the applicant being homeless and using drugs at the time of this offence.  It states that after he arrived in Sydney he met people who abused drugs and that he started using drugs and became dependent upon them. He had never received any help for his addiction.  He also drank alcohol to cope with his mental health issues.  He described PTSD related symptoms to the interviewer and expressed a willingness to engage in mental health intervention.

18. In trying to summarise the applicant’s experiences in Afghanistan and Australia the Tribunal notes the following:

    -He grew up in a country subjected to prolonged periods of fighting, invasion, occupation, insurrections, and fundamentalist attacks, control and abuses.

    -He experienced threats of serious harm causing him to flee his country and abandon his wife and [children] to seek a safer country for them.

    -He engaged in a dangerous boat journey to Australia as there was no immediate pathway to secure safety for himself and his family.

    -His experiences in Afghanistan may have caused him trauma which has remained untreated.

    -He arrived in Australia without knowing anyone here and struggled with English.

    -He was permitted to apply only for temporary protection visas, not permanent protection visas, due to his classification as an ‘unlawful maritime arrival’ (UMA). 

    -His situation in Australia remained insecure as his SHEV would expire and he would be required to try to obtain a further temporary visa.

    -The restrictions applicable to being a SHEV or temporary protection visa holder limited his ability to study.  More critically they did not allow him to sponsor his wife and children to Australia. 

    -While in Australia he has seen the source of the threats to him, the Taleban, grow stronger in Afghanistan.

19. In the Tribunal’s view the applicant’s life has been one of hardship and threat.  His efforts to find security for himself and family in Australia have not succeeded and he has been subjected to anxieties, stresses and hardship in Australia which would overwhelm many.

20. This does not justify, at any level, the applicant’s criminal behaviour.  But it does help explain why he resorted to drug use and became drug dependent, which lead to his offending.  The Tribunal notes there is no evidence that the applicant used drugs prior to his move to Sydney, or that he has used them while in prison.  This supports the applicant’s contention that his reliance upon drugs was the result of a situation he found unbearable, and not a personal predilection to drug taking. 

21. The applicant’s criminal record shows his offences were committed between 2018 and early 2021, while the applicant has been in Sydney.  This indicates he did not engage in criminal behaviour beforehand or while he was in Adelaide. The evidence also indicates that the majority, if not all, of the offences committed by the applicant were a result of his drug dependency.

22. The applicant’s experience in Australia has been one that has been detrimental to his overall welfare. If this had been different, if he had found permanent security, been fully able to study, and been able to bring his family to safety here his reasons for becoming drug dependant may not have materialised and he would then have had no reason to commit criminal offences. 

23. The applicant’s offences themselves involve violence and other harmful acts and are of a serious nature.  The Tribunal considers that the applicant’s commission of such criminal acts weighs in favour of the cancellation of his visa. 

24. However the circumstances which gave rise to the commission of the offences are decidedly sad in that a great deal of emotional strain and distress has been placed upon the applicant who was in quite a vulnerable situation and possibly suffering from trauma. The Tribunal considers that the circumstances which gave rise to the commission of the offences weigh in favour of the applicant’s visa not being cancelled.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. The Tribunal accepts that if the applicant’s visa is cancelled it will result in a severe level of hardship for him.  He will be liable to indefinite detention, be deprived of the opportunity to obtain proper employment, and potentially experience increased psychological and emotional pressure due to the separation from his family and his inability to help them.

26. Further, the medical report submitted by the applicant refers to him requiring surgery for [nerve damage].  The cancellation of the applicant’s visa will create further obstacles to hinder him obtaining this surgery.

27. The Tribunal considers that this factor weighs against the cancellation of the applicant’s visa.

    Other Matters

    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

28. The applicant travelled to and stayed in Australia to gain protection from feared persecution in Afghanistan.  Given the situation in Afghanistan has deteriorated further since the applicant’s departure, in that the applicant’s persecutors now control the country and other agents of harm such as ISKP are also active, the applicant’s need for protection in Australia continues.  The applicant therefore does have a compelling need to remain in Australia.

29. The Tribunal considers that this factor weighs against the cancellation of the applicant’s visa.

    Whether there would be consequential cancellations under s 140 of the Act

30. There is no indication that there would be any consequential s.140 cancellations. The Tribunal views this factor neutrally.

    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

31. Once the applicant’s prison term is complete immigration detention is a likely consequence of the cancellation of the applicant’s visa and it is also likely to be for an indefinite amount of time

32. The applicant was previously found to be a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act. Given the situation in Afghanistan there is a real possibility the applicant will not voluntarily return there even if his visa is cancelled. There is no indication that the applicant has the option of travel to a third country or that he would be permitted entry to and residence in another country. This gives rise to a situation where the applicant may be indefinitely detained in Australia.

33. Sub-section 197C(3) of the Migration Act provides that s.198 of the Act does not require or authorise an officer of the Commonwealth to remove an unlawful non-citizen to a country if a “protection finding” has been made in relation to that person and country unless that decision has been set aside, or the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding would be made, or the non-citizen requests voluntary removal.

34. A protection finding was made in relation to the applicant as a result of his initial protection visa application. This finding has not been set aside and nor has the Minister made a subsequent determination.  Therefore the applicant would not be able to be removed to Afghanistan under s.198 of the Act.

35. Further, if the applicant’s visa is cancelled he would be unable, under s.46A(1) of the Act, to make a valid application for another visa, unless the Minister permits him to in the public interest under s.46A(2).

36. There are options within the Act for the Minister to use his or her powers to intervene to either grant the applicant a visa or permit him to make a valid visa application.  However unless these options are exercised the applicant would be liable to indefinite detention.  There is no indication that any such options are being contemplated.

37. The Tribunal therefore accepts the likelihood that if the applicant’s visa is cancelled he will be subject to indefinite and prolonged detention in Australia. The Tribunal considers that this will deprive him of liberty and have a significant adverse effect upon his health, both mentally and physically.

38. In the Tribunal’s view this factor weighs substantially against the cancellation of the applicant’s visa.

    The expiration of the applicant’s SHEV

39. The Tribunal notes that the applicant’s SHEV is due to expire soon, on 20 October 2022.  The Tribunal notes that he is able to apply for another SHEV but needs to do so before his current visa expires or else he may require Ministerial intervention to allow him to apply.

40. The Tribunal further notes that an application for a SHEV is a complicated process and that there is significant additional complexity attaching to such an application by the applicant due to his adverse record in Australia.  His situation merits assistance from a competent and qualified legal practitioner.  He has been unable to obtain such assistance while in prison and he is likely to continue to face obstacles obtaining assistance if he remains detained.

41. If the applicant’s visa is not cancelled there is some prospect that the applicant will regain his liberty and he will then be better able to obtain qualified assistance with his immigration status.

42. The Tribunal considers this a factor which weighs in favour of not cancelling the applicant’s visa.

    The applicant’s recent conviction for a further criminal offence

100.   The applicant has served his time in prison for the offences that were the subject of the Department’s cancellation decision.  However since the applicant’s visa was cancelled he has been convicted of another offence, committed in February 2021. The offence is ‘reckless wounding’ which the applicant pleaded guilty to and he is due to be sentenced [in] July 2022.

101. The Tribunal notes that s.35(4) of the NSW Crimes Act1900 covers reckless wounding and prescribes a maximum penalty of 7 years imprisonment for the offence.  The NSW Crimes (Sentencing Procedure) Act1999, Standard Non-Parole Periods table lists 3 years for the s.35(4) offence of reckless wounding, however this is just one factor to be taken into account in sentencing. The applicant stated that he believes he is entitled to a 25% discount on the appropriate sentence because of his early guilty plea and his view is supported by s.25D(2) of the NSW Crimes (Sentencing Procedure) Act.[17]  He also believes his sentence will be reduced by the amount of time he has already served in prison and his criminal lawyer has suggested to him he would not be returned to prison.

[17] See further relevant discussion in the Judicial Commission of NSW, ‘Sentencing Bench Book’,  It is possible that the applicant’s sentence will not entail further prison time in view of the time he has served.  However it may and the applicant may be returned to prison with further time to serve.  In that event if the applicant’s visa is not cancelled he will still remain detained in prison for some time.  His release date from prison may exceed the expiry date of his SHEV.  His visa therefore would be of little practical use to him in prison. However if it is not cancelled he may be permitted to apply for a further visa which may be granted and allow him to be a lawful non-citizen in Australia upon release from prison.  Therefore the cancellation of the visa is still a highly relevant factor to his future.

103.   The Tribunal has read the statement of agreed facts in relation to the applicant’s new conviction.  It involves the wounding of another man who required hospital attention as a result.  In the Tribunal’s view it is the more, if not most, serious of the offences committed by the applicant.

104.   The available evidence, including the agreed facts, the applicant’s testimony and the prison OIM notes indicate that the applicant committed the offence as a result of his drug dependency and associations with people involved in illegal drugs.

105.   There is no professional assessment available to the Tribunal regarding the applicant’s risk of recidivism or anything about the state of his mental health.  As stated above he has not been represented in this matter and no assessments have been obtained on his behalf.  There is no independent evidence before the Tribunal as to the likelihood of the applicant re-offending.  As noted above the applicant’s presentation at hearing was calm and cooperative.  The OIM notes also emphasise the applicant’s “always” calm, cooperative, quiet and courteous manner during his many months in prison.  The applicant appeared at hearing to be positive and sincere about his prospects of finding work and making amends for his past criminal behaviour.  In the Tribunal’s view the applicant would likely need substantial community support in order to avoid falling into reliance upon drugs again.  He would also need assistance with his immigration matters as there is a chance of a positive outcome for him in which he will be able to sponsor his family to Australia in the future.  If his immigration status is not positively resolved this would have an adverse emotional impact upon the applicant which may again lead him to reliance upon drugs.

106.   Therefore, in the Tribunal’s view it is not assured that the applicant will not again become reliant upon drugs leading to further criminal offending.  However he has spoken of seeking out community, psychological and rehabilitation support if he is released.  Such support would be integral to his future stability and non-offending in Australia.

107.   The Tribunal views the applicant’s latest conviction as a serious matter. His commission of the offence weighs in favour of cancelling his visa.

108.   However the substantive indications that the applicant has taken positive steps in his life, and intends to take further steps if released, to minimise the risk of him resuming behaviour that can readily lead to criminal offending are matters in the applicant’s favour.  To a limited extent the provision of an opportunity for the applicant to establish a stable and lawful life in Australia is a factor which weighs against the cancellation of his visa.

Conclusion

109.   The applicant’s criminal offences have involved violence and other harm to people.  They are serious matters and his commission of these offences in Australia weighs in favour of cancelling his visa.

110.   However the majority of the factors weigh against the cancellation of the applicant’s visa. These include very substantial factors that go to the well-being of the applicant, his wife and [children], and to the safety of the applicant. The best interest of the applicant’s children is a primary consideration. The level of damage and hardship the applicant and his family could each be exposed to is potentially severe.  The deprivation of the applicant’s liberty in such a context is a very serious consideration to weigh. In the Tribunal’s view the indefinite and potentially prolonged detention of a person who has no safe and secure country to go to would be harsh.  

111.   There are also cogent indications that the applicant has changed his behaviour and attitude so that he is determined not to re-offend. He has been punished under NSW law for the offences he committed here. The Tribunal is persuaded there is potential for the applicant to re-establish himself as a law abiding and contributing member of the community.

112.   The Tribunal therefore considers that, despite the level of seriousness of the applicant’s past behaviour, the factors which weigh against the cancellation of the applicant’s visa prevail over the reasons why the applicant’s visa should be cancelled.  The Tribunal considers that the applicant’s visa should not be cancelled.

113.   Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

114.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Melissa McAdam
Member