2117381 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking to have the cancellation of his Subclass 790 (Safe Haven Enterprise Visa) set aside. The dispute arose from the Minister's decision to cancel the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth), specifically relying on regulation 2.43(oa), which permits cancellation if the visa holder has been convicted of an offence. The applicant, who was unrepresented and faced language barriers, had been convicted of multiple offences, including assault, contravening a family violence order, failing to answer bail, criminal damage, theft, and using a carriage service to harass.

The primary legal issue before the Tribunal was whether the Minister's discretion to cancel the applicant's visa should be exercised, given the circumstances. This required the Tribunal to determine if the ground for cancellation existed, which was not in dispute given the applicant's convictions. The Tribunal then had to weigh various factors in exercising its discretion, including the applicant's compelling need to remain in Australia to be with his children, his fear of returning to Iran, the potential hardship of extended immigration detention, the best interests of his children, the risk of harm to the community, and Australia's international obligations, particularly non-refoulement.

In its reasoning, the Tribunal acknowledged the applicant's convictions, satisfying the ground for cancellation. However, it found that mandatory cancellation did not apply. The Tribunal gave significant weight against cancellation due to the prospect of an extended period of immigration detention, noting the applicant's inability to regularise his status and the complexities surrounding the removal of Iranian nationals. While acknowledging the applicant's desire to see his children, the Tribunal found that his current legal inability to access them meant this factor carried limited weight. The Tribunal also considered the risk of harm to the community, noting the applicant's current partner's evidence of no violence and the applicant's engagement with rehabilitation programs, which suggested a low risk. Ultimately, after considering all discretionary elements, the Tribunal found that the balance of factors weighed against cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa).