2107042 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of a Sri Lankan national. The applicant arrived in Australia in 2012 and was granted a Safe Haven Enterprise Visa (SHEV) in 2018. The Department of Home Affairs initiated cancellation proceedings after the applicant was convicted of sexual assault and related offences in December 2019, and subsequently failed to comply with reporting obligations under the Sex Offender Registration Act 2004.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 were met, and if so, whether to exercise its discretion to cancel the visa. The legal issues involved assessing the applicant's response to the notice of intention to cancel, considering the seriousness of his criminal offending, and weighing this against his compelling need to remain in Australia due to his refugee status and significant mental health issues. The Tribunal also had to consider the consequences of cancellation, including the risk of indefinite detention and the potential breach of Australia's non-refoulement obligations.

The Tribunal reasoned that while the applicant's criminal offending was serious, several factors weighed against cancellation. The applicant had been assessed as a refugee with a well-founded fear of persecution in Sri Lanka due to his Tamil ethnicity and imputed political opinion, having previously been arrested and beaten by Sri Lankan authorities. Furthermore, his chronic mental illness, specifically schizophrenia, was noted to be well-managed with long-term medication, but likely to deteriorate significantly if exposed to the trauma of incarceration or detention in Sri Lanka. The Tribunal considered that the applicant's willingness to continue with his treatment and the relative stability of his symptoms when medicated were important considerations.

Ultimately, the Tribunal concluded that the serious consequences for the applicant if his visa were cancelled, including the prospect of indefinite detention and the breach of non-refoulement obligations, outweighed the grounds for cancellation. Therefore, the Tribunal set aside the decision to cancel the applicant's visa.