2117381 (Refugee)

2117381 (Refugee) [2023] AATA 2821 (14 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2117381
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:14 June 2023
PLACE OF DECISION:  Melbourne
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) visa.

Statement made on 14 June 2023 at 11:23am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – unrepresented applicant – language barrier – ground for cancellation – convicted of an offence – assault – contravention of family violence order – use carriage service to harass – consideration of discretion – degree of hardship – circumstances of the conviction – competing narratives – mandatory legal consequences – extended period of immigration detention – best interest of the children – access to children – risk of harm to the community – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A, 48, 48A, 116, 196, 197AB, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.43
CASES
1901883 (Refugee) [2021] AATA 3216
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
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 4 November 2021 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) and r.2.43(oa) on the basis that the applicant was convicted of breaches of a number of laws including for assault and contravention of a family violence order. 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 28 April 2023 and 9 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Pre-hearing matters
An invitation to attend the hearing was sent to the applicant by email on 14 February 2023 for a hearing on the 28 April 2023.
On the 27 April the applicant called the Tribunal and spoke with an Associate. A task note records the following:
Incoming call from the RA was transferred by switch at 11:12am. Unable to understand the RA's queries so advised that I would call him back with the assistance of an interpreter. Call to TIS initiated at 11:16am.
TIS Job Number: [deleted]
RA was calling in response to the SMS Hearing Reminder which he received this morning. He didn't understand the message but noted that it said something about 28 April.
I confirmed that the SMS reminder which was sent this morning was for the hearing that has been listed for 28 April at 9.30am (tomorrow).
I confirmed that the hearing invitation was sent to the email address the Tribunal has on file for him - I checked the email address on Tribunal records and he confirmed that the email address we have is correct. He said he doesn't have any recent correspondence from the Tribunal.
I asked the RA to check his junk mail folder in case any correspondence and advised that a courtesy copy of the HI will also be sent whilst I wait on the line for confirmation that he has received it.
After a few moments, the RA confirmed that he received the email with the courtesy copy of the HI.
I thanked the RA for confirming this and advised that the HI sets out all the important information and confirms that the hearing is listed for 28 April (tomorrow) at 9:30am.
I confirmed that the Tribunal has made arrangements for an interpreter but that he is welcome to bring along a support person or witnesses if required.
I asked that the RA check emails regularly and also junk mail in case any correspondence is captured there was no response to another email the Tribunal sent him on 8 February. During the call, the RA said he was searching his inbox and found the other email from 8 February. I advised he can discuss this with the Member tomorrow. He said that because of the language barrier he missed the email.
Call ended with thanks. 20 min duration.
The issue was brought to my attention immediately on the 27 April. Noting that the applicant did not request a postponement and he was not represented, I decided to proceed with the hearing but ensured that everything was explained in greater detail and that if required a second hearing or time for post hearing submissions would be made available to the applicant.
The relevance of the applicant not being represented is that more time to prepare would not have necessarily led to a fairer process without the applicant having the matters explained to him so that he could understand the issues and make the appropriate submissions. Had the applicant been represented then there would be a stronger case to defer the hearing to allow for the representative to prepare for the matter and possibly make pre-hearing submissions.
Following the conclusion of the first hearing and consideration of the opportunities provided to the applicant to give evidence and present arguments, I decided a second hearing was required to address some issues that would have benefitted from further opportunities for the applicant to provide evidence and oral submissions on.
There was a s 375A certificate on the Departmental file. The certificate was discussed with the applicant on the basis that it appeared to be a valid certificate. The applicant was invited to comment on its validity. The applicant did not provide any comment. I provided to the applicant the general gist of the material behind the certificate, namely that it contained the legal advice which led to the initial reinstatement of his visa following a poorly drafted Departmental cancellation notice. The earlier cancellation notice was replaced with a new notice, which is the basis of this matter. None of the material behind the certificate has any relevance to this matter.
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) which refers to a list of prescribed grounds for cancellation under r 2.43. Among the list of grounds for cancellation under r 2.43 is clause (oa) which was the basis upon which the delegate initiated the cancellation of the applicant’s visa. Clause (oa) reads:
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))
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?
The applicant was convicted and sentenced for two incidents that were considered separately by Magistrates in 2020 and 2021 according to the Notice of Intention to Consider Cancellation (NOICC):
- [Magistrates Court] – [date] September 2021: Assault by kicking 43 days imprisonment. Cumulative. Effective total State term imposed is 133 days
- [Magistrates Court] – [date] September 2021: Unlawful assault 90 days imprisonment. Base sentence. Effective total State term imposed is 133 days
- [Magistrates Court] – [date] September 2021: Contravene Family Violence Final Intervention Order; Fail To answer bail. Convicted and a Community Correction Order for 14 months. Unpaid Community Work, to perform 100 hours of community work. This condition starts on 09/09/2021 and goes for 14 months
- [Magistrates Court] – [date] Nov 2020 Criminal damage (Intent, damage/destroy) Unlawful assault (2 charges); Theft of a motor vehicle; Commit indictable offence whilst on bail. Aggregate 1 month imprisonment. Concurrent. Effective total State term imposed is 1 month. Also convicted and a Community Correction Order for 24 Months
- [Magistrates Court] – [date] Nov 2020: Use carriage service to harass. 1 month imprisonment. Sentence to commence completion of state sentence. Also convicted and a Community Correction Order for 18 months.
It is not in dispute that the applicant was charged and convicted as listed above. For this reason, 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 explained that the purpose of his stay in Australia is to remain with his [children]. The applicant’s children include [children of various ages]. These children are from his relationship with the woman who was the victim of his violence for which he was convicted. He also has two children from a previous relationship, aged [age] and [age]. He did not mention them as a reason to remain in Australia, nor is there any evidence before the Tribunal that suggests he has any ongoing relationship with either of them.
The applicant explained that he has engaged a lawyer to deal with the AVO that is limiting his engagement with [his] youngest children from his ex-wife in addition to acquiring some parenting rights for these children. As discussed in more detail below, when considering the Convention on the Rights of the Child and in turn the best interests of the children, the process being at such an early stage leads me to conclude that the applicant will not have any determination on the matter within the foreseeable future.
A further reason to remain in Australia is that the applicant fears harm was he to return to his home country of Iran. The visa he currently holds, a Safe Haven Enterprise Visa, is a form of protection visa which indicates that he has been found to have a well-founded fear of persecution or that he faces a real risk of significant harm were he to return to Iran. Considerations arising from his fear of returning to Iran are discussed in more detail below and given weight under the section which considers international obligations.
As discussed further below, if the applicant is at some stage in the future found not to have a protection finding and in addition, he chooses to return to Iran voluntarily, only then would the applicant no longer remain in Australia and risk harm in Iran. For the reasons explained further below, I find that this would not be an eventuality. Instead, I find that the applicant will remain in Australia but in immigration detention due to the relatively unique situation that arises from the fact that the Iranian authorities refuse to take involuntary returnees.
In this specific case, the applicant’s reason for staying is to maintain protection from the Iranian authorities and to pursue a legal avenue to contribute to parenting his children. As the applicant’s protection in Australia is secure in that he cannot be removed against his will and he has nowhere else to go and as such there is no option but for the applicant to remain, I place limited weight on this reason to stay for the purposes of this decision.
Noting that within the foreseeable future the applicant will not have an outcome regarding any right to participate in parenting his children that can be incorporated into this decision I only place weight on the challenges he may face being in immigration detention while pursuing these legal options.
When considered cumulatively, I place limited weight against cancellation arising from his desire to remain for the purposes of protection and to pursue, through legal means, opportunities to see his children which as noted can be done in immigration detention albeit with some challenges.
The extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with the visa conditions imposed on him. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
It was explained to the applicant that the most likely consequence of cancellation would be that he is moved to immigration detention and would remain there for an extended period of time. The reason that this is the most likely consequence of cancellation is explained further below.
In the context of remaining in immigration detention for an extended period of time, I asked the applicant what type of hardship he and others would encounter as a result.
The applicant said that he will be depressed. He noted that he is currently seeing a doctor, and that he has severe anxiety but is getting better. He said that if he can’t see his children, he believes his situation will worsen. The applicant explained that his General Practitioner has given him medication to deal with his mental health challenges, and that he has an appointment to see a psychologist after waiting for two months. In the past he has seen a psychologist. He said that he engaged with one and was asked to talk about his marriage and on an earlier occasion he had access to a psychologist at Foundation House, but he didn’t like the approach taken by the psychologist and as such didn’t continue.
The applicant identified his work, which he has continued to undertake through to this decision being made, as a good thing that has helped him stabilise his life. If the applicant was to lose an ability to work within the community, I accept that it would cause some hardship and that it will impact him emotionally and psychologically.
The applicant also said that he wouldn’t be able to see his girlfriend with whom he has been in a relationship with for about a year and a half. I accept that it would be difficult to maintain a relationship while the applicant is in detention. Although the applicant does not live with her and they do not have any firm plans for the future of their relationship, I nevertheless accept that the applicant’s visa being cancelled and being detained will cause both him and her some hardship.
The applicant said that cancellation of his visa will also affect people around him such as his cousin with whom he is living. He explained that they are currently sharing a house and living like brothers. He said that his cousin would be very upset.
The applicant said that his children wouldn’t want to see their father in immigration detention. I put to him that they haven’t see him for what he described as being since 2020, in other words, for 2-3 years despite the applicant being in the community. He responded that through this period the children were very young, but into the future as they grow up, they will start to be conscious of the absence of their father. I asked what type of role he hopes to play in their lives if not in detention. He said that his intention is to open a bank account for them and focus on the children having a good future. He wants to go on outings with them and travel. He said that if they need help, he will give it to them, such as with their studies and their sport.
The applicant has begun a process to gain the right to see his children which is discussed further below. I acknowledge that detention will hinder his ability to fully establish his case for a right to see his children and that this will create a limited degree of additional hardship, but I note I have already placed some weight on this under the earlier heading of the reasons for this stay in Australia.
Regarding the applicant’s aspirations to support his children by working to establish a fund for them, I have considerable doubts about the genuineness of such claims. To begin with, he is not paying child support as he is disputing a financial debt that he has received. If he was genuine about wanting to support his children, then he would not be objecting to the debt. Secondly, he has had every opportunity to establish such a fund over the past couple of years since he was released from prison and has been in the community, but he has not done so. As he hasn’t done so to date, I have little faith that he will do so in the future. As such I find that there will not be any additional hardship arising from his inability to establish a fund for his children due to being in immigration detention.
The applicant does not have any family abroad that are dependent upon him.
In weighing these considerations cumulatively noting that hardship will arise as a result of increased psychological challenges if he is to be placed into immigration detention including anxiety and depression which he is already struggling with, in addition to the lost opportunity of developing his relationship with his current partner further, I place moderate weight against cancellation.
Circumstances in which ground of cancellation arose.
The applicant explained that prior to having children his marriage was okay, but he claimed that when they had children the problems started. He said that this was because any challenges that they faced would lead to his wife calling the police.
When the police arrived, he would be asked to leave the premises and an AVO would be put in place, but he claims that he didn’t know about the conditions and so he would return home. He said that only later did he learn that he was in breach of the AVO by returning home. He explained that the last time he was home with his ex-wife and children was about 1.5 year ago. He returned as he wanted to see his children. He claimed that he is now fully aware of the conditions of the AVO.
The claim that he is only now aware of the conditions of the AVO is difficult to accept noting that the applicant stated that the police had previously ‘clarified the conditions’ to him two or three times.
The applicant accepted that he had committed physical violence against his ex-wife, but he claimed that it was only on one occasion. This is the incident which he understands to have led to the cancellation of his visa.
The applicant provided information about the circumstances surrounding the incident which led to the cancellation of his visa. He described the incident as being on a day when his wife asked him to go to church. He objected, which he claims led to her swearing at him. He said that he then accepted to go. After church he claims that she wanted to go to lunch, but he wanted to go home. At the same time, she accused him of having extramarital affairs and then threw him out of the vehicle. He said that she drove off but then came back and picked him up. They continued to a cousin’s restaurant in [Suburb 1] and along the way started quarrelling again. He claims that she threw him out of the vehicle again, but as they weren’t far, he walked to the cousin’s restaurant. He claims that as he was walking to the restaurant his wife returned and that she started to quarrel with him, but the cousin calmed them both down. After lunch he claims that his wife suggested that they go to [the] beach, but he didn’t want to go. He then once again agreed to go, and along the way they quarrelled again. According to the applicant she accused him of having relationships with other women. He admitted to then losing his temper. He claims that she attacked him, and he bit her and then she stopped the car, and he exited. He claims that at no stage did he attack her.

I read to the applicant the statement of alleged facts from that incident.
At approximately 5.10pm on the [date] November 2019, the accused and the complainant were driving home from [the] beach. All [the] children were also in the car that was being driven by the complainant. The accused and complainant were arguing as they drove. The accused abused the complainant verbally calling her a ‘mother fucker’ and ‘stupid bitch’ and that he wanted to get a divorce. The argument escalated and the complainant stopped the car on [named] Road in [Suburb 2] as she feared what the accused may do. The complainant attempted to wave down passers-by- for help. The complainant opened the accused’s door to tell him to get out of the vehicle, as she did so, he pulled the complainants arm before biting her.
The accused then got out of the car and pushed the complainant to the ground. The accused screamed at the complainant and kicked her to her legs. The complainant was so terrified that she urinated herself. A witness, [Ms B] stopped to give assistance and the complainant asked her to call police. [Ms B] observed the accused walked over to the complaint and stand over her, [Ms B] yelled at the accused ‘Do not touch her, do not lay a hand on her’ before the accused yelled back ‘she’s my wife she’s my wife.’ The accused then began to run away and [Ms B] called triple 000.
I acknowledge that these are alleged facts most likely established from the applicant’s ex-wife’s evidence along with the witness. They are not the final findings of the magistrate.
The applicant responded that he accepts that he bit her but not that he kicked her. He refuted intentionally pushing her to the ground but cannot recall if he did so unintentionally during the process of moving away from the incident.
The applicant said that the court found him guilty of attacking her and that he was sentenced with imprisonment along with a community correction order and being required to undertake a drug and alcohol test.
Sentencing remarks arising from the case were not available to the Tribunal. Nevertheless, it is clear from the conviction that he was found guilty of assault by kicking, which he denied. The applicant admitted to biting his ex-wife. Without some form of sentencing remarks, it is unclear if the biting was the only action that formed the basis of the conviction for unlawful assault or if there were other actions.
We then discussed the events of 2020. I asked what happened in that year. He said that he was not involved in any violence, but acknowledged that they argued, which in turn led to his ex-wife calling the police. He also said that he was involved in driving a vehicle registered in her name and they arrested him for driving it. I noted that he was convicted in that year for Criminal damage (Intent, damage/destroy) Unlawful assault (2 charges); Theft of a motor vehicle; Commit indictable offence whilst on bail.
He said that he didn’t know about the criminal damage, he reaffirmed that there was no assault but added that possibly there was some swearing. He accepted that he took the vehicle. He agreed that he was out on bail at the time.
I asked why he was on bail. He said that he didn’t know.
The applicant also acknowledge that he had been to [the] Magistrates’ court for what he recalled as being ‘some argument with his wife’ in 2018. His recollection aligns with what can be described as a low-level incident as it was a matter that led to him being found guilty but ‘without conviction’.
I asked if his family ever became involved in his issues with his ex-wife. The applicant did not identify that there had been an issue arising from communication with his ex-wife and his extended family. I put to him that in 2020 his cousin sent repeated SMS messages to his ex-wife and that in those messages it indicated that the applicant had asked the cousin to message her asking that she tells the judge that she needs help with the children for him to get a lower sentence. He said that no such thing occurred. I noted that he was convicted of Use carriage service to harass, arising from actions that occurred in September and October 2020, and for which he was sentenced to 1 month imprisonment. He said that it was the first time he had heard about this. He said that maybe he didn’t know of the matter because of his poor English. The applicant acknowledged that he had made a lot of mistakes in his life.
He acknowledged that he was either using or endeavouring to stop using drugs during the period of the incidents that led to the grounds of cancellation and as a result he wasn’t feeling well when the incident occurred. He said that he was using opium and ice and that he was under tremendous pressure. He claimed that initially the drug was helping him to continue work and contribute to the home, but after a while it made his situation worse. He said that he started his drug use in 2018 and continued to use for 1.5-2 years. He claimed that he stopped because he attended courses ordered by a judge, which helped him quit. Through this process, he claims that he saw that good things were again happening in his life, so he decided to quit.
The good things that he identified are that he is employed, had engaged a lawyer to help get access to his children and that he is healthier and in a good relationship with his girlfriend, a relationship that started over a year and a half ago.
Before turning my mind to weighing this consideration I note that there are competing narratives of what happened on the occasions that led to the grounds of cancellation. Reaching a conclusion on what transpired without the luxury of relying upon sentencing remarks is challenging but critical as the weight given to the circumstances surrounding the grounds of cancellation will change depending upon the accepted narrative, namely in this case, for example whether he did walk away without harming his ex-wife as he had claimed.
In grappling with these inconsistencies, I have determined that where the court has found the applicant guilty of certain actions I disregard the applicant’s contrary claims, for example, when he claimed that he did not kick his ex-wife whereas he was convicted of assault by kicking and sentenced to 43 days in prison. The fact that he has not been forthcoming with the facts in such moments where alternative and more credible evidence is available leads me to place less weight on his evidence and greater weight on third party statements such as the witness who stopped to help the applicant’s wife.
When it comes to the direct contradiction between the statement of facts obtained by the police from the applicant’s ex-wife, I am more cautious as there are competing motivations and limited information upon which I can make a finding of fact despite the applicant’s problems with credibility.
Effort was undertaken to obtain the sentencing remarks but correspondence from [the] Magistrates indicates that they do not retain the audio for longer than 12 months and nor is there a written copy.
The circumstances surrounding the grounds for cancellation discussed at the hearing include the applicant’s claims of trouble in his marriage and what the applicant described as being in a relationship with a woman who would constantly revert to calling the police when they had an argument. I place no weight in favour of the applicant on these reasons as they are not out of his control. He could and should have walked away from any argument that was escalating to a point where he was on the verge of violence. Instead, it appears from the criminal convictions that he continued to engage in the arguments such that he perpetrated violence against his ex-wife.
The applicant said that he breached the conditions of the AVO because he did not know of the conditions, despite admitting that the police explained them on 2-3 occasions. He also claimed that he breached them as he wanted to see his children. I noted to the applicant that there is evidence that the breaches were repeated. I suggested that this indicates a lack of regard for the law in Australia. He acknowledged that he had breached those obligations and that it was for the reason that he wanted to go home and see his children. He said that he was missing them and that he wasn’t aware of the law at the time. He acknowledged that the police explained the AVO conditions, but he said that his wife kept calling him to invite him to come home. He said that he obliged because he didn’t know it was a serious crime. In addition, he came from a country that had different legal settings.
While a desire to see his children is an understandable motivating factor in wanting to act, the way he acted, being directly in breach of his AVO, rather than pursuing alternative actions such as legal endeavours, was done not because of a lack of understanding of Australian law but for other reasons. Whether these other reasons are a disregard for the law or a lack of impulse control, or his use of drugs at the time, either way, it cannot lead to favourable weight being placed on this consideration.
I have also considered the applicant’s drug use. While I accept that the applicant was using drugs at the time and that drugs, particularly those the applicant admitted to using are highly addictive, I do not accept that there is no place for individual agency. The applicant could have sought support earlier than he had or sought other pathways to separating himself from his drug use. The applicant did not claim nor is there any evidence to suggest that during the specific hours when the incidents that led to the grounds for cancellation occurred, he was on drugs, but I accept that the battle with drugs has long term consequences including to emotional regulation which would have retarded his ability to reason. Overall, when considering the role of drugs, I place minimal weight on this line of reasoning as he was not on drugs at the time but there is clear evidence that the lingering effects of drug use leave an impact on the brain’s synaptic pathways and as such would have lowered his ability to function appropriately and make better decisions which were available to him.[1]
[1] ‘Chapter 2: The Neurobiology of Substance use, Misuse and Addiction,’ in Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health, Office of the Surgeon General (US), Nov 2016. >
When considered cumulatively, having given no weight to the applicant’s claims of being coaxed into violence by his argumentative wife or that he wanted to see his children and as such was left with no choice but to breach the law, but acknowledging that drug use would have had an impact on his ability to function including to restrain himself during arguments or to find legal pathways to see his children, I place very limited weight against cancellation.
Past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal that the applicant has had any adverse engagement towards the Department. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations that arise from a cancellation of the applicant’s visa. As such I place neutral weight on this matter.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled and he exhausts any rights of judicial review, he will be an unlawful non-citizen. Unless the applicant can regularise his position, he faces the prospect of an extended period in detention for the reasons explained below.
Due to the operation of s46(A) the applicant, as an unauthorised maritime arrival, is unable to apply for a further visa unless the Minister lifts the bar. Even if the Minister were to lift the bar, relevant to this decision due to the operation of s 48 of the Act a non-citizen who has a visa refused or cancelled may only apply for a particular visa. The prescribed visas are listed under r 2.12.
Among this list the applicant’s circumstances align with the opportunity to apply for a partner visa as he has been in a de facto relationship for over 12 months with the witness. When asked about this possibility he responded that he is physically reasonably good but not in a good place mentally. He said that he is trying to cope and needs time to accept someone as a life partner. He said that he fears whether he would face the same problems and challenges he has faced with his ex-wife if he marries again. Due to the costs associated with a partner visa, which I accept to be prohibitive for many, and the evidence given by the applicant regarding his personal journey, I give him the benefit of the doubt and accept that he will not pursue this pathway in the near term.
Due to the operation of s 48A of the Act where a protection visa holder has had their visa refused or cancelled, the citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. Section 35A(3) of the Act defines what encompasses a protection visa and specifically includes temporary protection visas such as the one the applicant held.
The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.
When all of these legislative pathways are considered, it is clear that the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removed.
Removal, though, carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the relatively new ss 197C(3) and 197D which entered into force by way of the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) that came into effect on 25 May 2021.
In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken.
A full accounting of these new process was undertaken in a separate matter, 1901883 (Refugee) [2021] AATA 3216 (2 September 2021) which was heard by this member and Deputy President Redfern.
The new process created by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) is untested in that an applicant has not seen through the entire process including availing themselves of the opportunity to appeal before the Tribunal. As such the length of time it would take is unknown but clearly it could amount to a lengthy period and as such the applicant could remain in detention for an extended period until an outcome is finalised.
Depending upon the applicant’s claims at the point in time when his circumstances are considered and depending upon the situation in Iran, the applicant may retain the protection finding or alternatively be found that he is ‘no longer’ a person for whom a protection finding would be made (s 197D(2)) which would then, under usual circumstances, open a pathway to removal.
If it is determined that a protection finding would still be made at the time of the decision or at the time of the review, it is not clear how the tension between his criminal conviction and the cancellation of his original visa would intersect other than that he would remain in immigration detention. This is because while s 189 states that an officer who ‘knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.’
Alternatively, if the applicant’s protection finding is no longer in place the applicant still cannot be removed under s 198 for the reason, unique to Iranian nationals, that the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018.[2] This would apply to the applicant because he arrived in Australia prior to that date. When this was raised with the applicant, he said he would choose to remain in detention rather than voluntarily leave to Iran. He said that with [number] children in Australia he will wait for the day that the Department grants him a visa so that the is released.
[2] DFAT Country Report: Iran, 14 April 2020 [5.27]. Australia and Iran entered into a Memorandum of Understanding to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia
There is no information before me to suggest the applicant may be able to seek protection in a third country or that the government has plans to negotiate for relocation of Iranian nationals to another country.[3]
[3] Section 36(3) of the Act provides that Australia does not have protection obligations if a non‑citizen can avail themselves of protection in another country
As such, the applicant faces an extended period in detention as either his protection finding is reaffirmed, but the Minister does not draw on his or her powers to resolve in a manner favourable to the applicant the impasse, or alternatively the protection finding is no longer in place, but he refuses to return voluntarily.
An alternative possibility that arises during the applicant’s detention that may open a pathway away from this impasse is for the Minister to use his powers under s 197AB which provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is the power that has allowed non-citizens being placed in what is colloquially known as ‘community detention’.
But there are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[4] Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister relevant to the applicant is:
a.where the continued presence of the person in Australia would pose a threat to an individual in Australia, to Australian society or security, or may prejudice Australia’s international relations.
[4] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power
On the other hand, among the profile of cases to be referred to the Minister’s attention there are none that align with the applicant’s circumstances. The grant of a favourable residency determination is therefore a highly unlikely outcome in the circumstances of this case now.
As such I find that as the law stands the applicant is liable to be held in immigration detention for an extended period.
For the reason of the applicant’s prospect of an extended period in detention, I place heavy weight against cancellation.
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
The applicant has [number] children of whom [number] are considered minors and as such fall under the Convention on the Rights of the Child. The applicant discussed in detail his concerns about [number] of them and his desires to engage with [the] younger children from the most recent relationship.

As noted earlier the applicant aspires to see and support [his] younger children but he has been unable to due to having committed violence towards his ex-wife and the resulting AVO. A letter from Victorian Legal Aid dated [May] 2023 was provided to the Tribunal that confirmed the applicant was being granted legal aid to ‘formalise parenting matters… through mediation with the Victoria Legal Aid Family Dispute Resolution Service’. It is clear from the letter that this is at the very earliest stages for the applicant to access some parenting rights. It is not clear whether the applicant’s ex-wife has consented to participate in this process. While I note that it is compulsory to participate in a family dispute resolution process there are exemptions including where family violence has occurred.[5]
[5] >
While Article 7 of the Convention on the Rights of the Child states that a child shall have the right to be cared for by his or her parents, Article 9 qualifies this with the following:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
The applicant’s children have been separated from their father through a legal process that would limit Australia’s obligations under Article 7.
The applicant’s inability to see his children has been the status quo, according to the applicant, for 2 to 3 years. It may change in the future as his efforts through mediation and possibly the Federal Circuit and Family Court progress. It is unknown what may be agreed between himself and his wife or what a future judge determines based upon the facts as they are sometime into the future (i.e., does he remain drug free). It would be speculative on my part to read into this decision an outcome from a different jurisdiction arising from circumstances from some indeterminate time into the future and with only limited facts available to me.
For the purposes of this decision, I find that the current situation regarding access to his children will remain in place for the foreseeable future, specifically until some alternative decision-making process is completed. In other words, I find that the applicant will not have any ability to interact with his children regardless of this decision for the foreseeable future. As such I place very limited weight against cancellation for reasons arising from the possibility of a breach of Australia international obligations arising from the Convention on the Rights of the Child.
The applicant and his children comprise a family. That, by law, he is unable to maintain his family in a cohesive unit does not negate the fact that he has a family. Family unity is a principle that is derived from international treaties such as the International Covenant on Civil and Political Rights, Article 23: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Nevertheless, for the same reasons that I placed limited weight against cancellation arising from the Convention on the Rights of the Child, namely due to him not having legal access to his children for the foreseeable future, I place very limited weight on any obligations on family unity principles that arise in the context of Australia’s international treaty obligations.
The issue of non-refoulement has been addressed above with a finding that the applicant will not be removed within the context of this decision and as such the situation does not expose Australia to be in breach of its non-refoulement obligations. As such I place no weight on this consideration.
Any other relevant matters
I note that the introduction of r 2.43 (oa) was accompanied by an Explanatory Statement[6] in which the Minister noted that,
These amendments to the Migration Regulations are complementary to the Act and provide my department with the necessary legislative and regulatory tools to meet the Government's commitment to protecting the community from the risk of harm by non-citizens, and maintaining the integrity of the Migration programme.
[6] Migration Amendment (2014 Measures No. 2) Regulation 2014 (SLI NO 199 OF 2014) Explanatory Statement: Select Legislative Instrument No. 199, 2014 Issued by the Minister for Immigration and Border Protection
For this reason, I will also weigh the risk of harm to the community including the applicant’s ex-wife and the importance of maintaining the integrity of the Migration program.
Regarding the risk of harm, the applicant’s current partner gave evidence. She has been with the applicant for a year and a half and has not experienced any violence. I asked how it makes her feel being in a relationship with someone who has done what he has admitted to or the courts have convicted him of. She said that he treats her well and they respect each other. She believes that both the applicant and his ex-wife had problems, and each were right in their own way. She said that he wishes to see his children and she feels both are responsible for the conflict. She said that she hadn’t heard from other friends that he had ever been violent.
The witness emphasised that the applicant had not taken any drugs during the period that he has been with her. Nor has he gotten angry or lost his temper. She said that sometimes he is upset but she knows that it’s because of his children. She said that he treats his friends well.
The applicant forwarded an email dated [in] May 2023 from his case manager relating to his community corrections order, which I reproduce in full below:
[Reference number] (20 Month Order: 13/10/2021-12/06/2023)
Supervision:
[The applicant] attends supervision appointments as required and engages in conversations regarding his offending behaviour. [The applicant] currently reports to this service on a monthly basis.
Drug Treatment:
[The applicant] engaged in a drug/alcohol assessment [on] 18/11/2021, whereby he was recommended for an episode of complex drug/alcohol counselling. On 09/02/2022, [the applicant] commenced an episode of complex drug/alcohol treatment with clinician [named] from [clinic]. [The applicant] engaged in 11 of 13 scheduled counselling sessions and completed treatment on 15/11/2022.
Drug Abstinence:
[The applicant] has attended 24 drug screens for this service, whereby he tested positive for illicit substances on five occasions (30/10/2021 – amphet-type substances, 06/11/2021 – amphet-type substances & cannibinoids, 29/01/2022 – cannibinoids, 07/01/2023 – amphet-type substances and 11/02/2023 – opiates).
Offending Behaviour Program/s:
On 20/06/2022, [the applicant] was deemed ineligible for Forensic Intervention Services – Violent Pathways, so a referral to the Men’s Behaviour Change Program (MBCP) was initiated. On 22/11/2022, [the applicant] was deemed suitable for the MBCP however due to the need for a Persian interpreter [the applicant] was recommended for individual family violence sessions (aka Individual Case Management). [The applicant] commenced ICM with [named organisation] on 14/02/2023 and continues to engage with this service.
Comply with Intervention Orders relating to [Ms C] and [the] children:
[The applicant] is aware of all current intervention orders (IVOs) protecting [Ms C] and [the] children. [The applicant] reports nil contact with [Ms C] and [the] children since his order commenced. [The applicant] advised that he was currently speaking to legal representatives about gaining access to his children. This service has not received any information from Victoria Police to indicate that [the applicant] has contravened IVO conditions (nil reported IVO breaches).
Whether the applicant is genuinely remorseful and has reflected upon his actions such that he has changed and would not pose a threat to his ex-wife or others is an important consideration that should be weighted. I have reflected upon the applicant’s lack of forthrightness in providing evidence or information upfront to this Tribunal, his lack of acceptance of the court’s findings, his repeated ignoring of warnings by the police about the importance and role of AVOs and an ongoing history of domestic violence. I am concerned about the applicant’s patience to see through the legal process to access parenting rights for his children.
On the other hand, the applicant’s participation in a relevant program that included counselling as evidenced by a letter from [named organisation] dated 1 May 2023 as well as his evidence through the hearing, namely that he was triggered specifically by his ex-wife and that he is aware of how the relationship was what could be referred to as a toxic relationship. The case manager’s report also weighs against cancellation for the reason of it being indicative of ongoing positive engagement with his obligations to the law and as an indication of some degree of rehabilitation. As does the evidence of the applicant’s current partner which supports the view that the applicant is not a risk after having been in the community for some time. When considered as a whole, noting that the applicant has been in the community since leaving prison for a period of nearly three years and has not committed an offence, I find that the level of risk that the applicant poses is low and as such place limited weight in favour of cancellation.
With regards to the integrity of the migration program, although this is not defined, I interpret it to mean that the overall migration program could be undermined without the options made available to decision makers to cancel visas under r 2.43(oa). That this option is available contributes to the integrity of the migration program and as such this being fulfilled leads to this consideration weighing neutrally.
In considering the discretionary elements cumulatively and turning my mind to the weight I gave under each consideration, in particular noting the heavy weight against cancellation due to the prospect of an extended period in detention, I find that overall the balance weighs against cancellation.

100. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.
DECISION
101. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.
Denis Dragovic
Deputy President

[2023] AATA 2821

14 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

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