2117816 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's protection visa. The applicant had been convicted in July 2020 of intentionally causing injury and making a threat to kill, for which he received an 18-month community correction order. The delegate initiated cancellation of the applicant's visa under s 116(1)(g) of the Migration Act 1958 (Cth), relying on regulation 2.43(1)(oa), which permits cancellation if a visa holder has been convicted of an offence against a law of the Commonwealth, a State, or a Territory.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation was established but did not mandate cancellation under s 116(3). The Tribunal was required to consider all relevant circumstances, including the applicant's personal circumstances, the potential hardship to him and his family, and government policy. Specifically, the Tribunal had to weigh the applicant's stated fear of returning to Burma due to past atrocities and his desire to protect his children's future against the conviction for serious offences.

The Tribunal found that the ground for cancellation was made out, as the applicant had been convicted of the specified offences. However, it determined that cancellation was not mandatory. In exercising its discretion, the Tribunal considered the applicant's assertion that Australia was his only home and his inability to return to Burma. It also noted the applicant's compliance with visa conditions. Despite these factors, the Tribunal placed limited weight on the applicant's purpose of stay and his children's future, reasoning that the applicant's protection in Australia was secure and he could not be removed, thus rendering the purpose of his stay moot for the purposes of this decision. The Tribunal also considered the degree of hardship, including the applicant's mental health condition and the best interests of his children, as well as family unity.

Ultimately, the Tribunal set aside the decision under review. It concluded that, having regard to all the circumstances, including the degree of hardship that would be caused by cancellation, the mandatory legal consequences of cancellation, the new process for removal, extended immigration detention, and the best interests of the child and family unity, the discretion to cancel the visa should not be exercised.