2117946 (Refugee)

[2022] AATA 2513

2117946 (Refugee) [2022] AATA 2513 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Muhammad Jarri Haider Syed

CASE NUMBER:  2117946

COUNTRY OF REFERENCE:                   Iran

MEMBER:Antoinette Younes

DATE:15 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 15 June 2022 at 12:12pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – convicted of an offence – contravening an Apprehended Violence Order (AVO) – stalk/intimidate – driving while licence application refused – consideration of discretion – compelling need to remain in Australia – Australia’s protection obligations – degree of hardship – successful rehabilitation – Convention on the Rights of the Child (CROC) – best interests of the child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 116, 197C, 197D, 198
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth), r 2.43

CASES
Ibrahim v MHA [2019] FCAFC 89

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

1. This is an application for review of a decision dated 15 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa (‘SHEV’) 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 the applicant has been convicted of offences in New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the ground for cancellation exist?

6. 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:

   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.

7. Regulation 2.43 of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the following ground for cancelling a visa:

   Regulation 2.43 – Grounds for cancellation of visa

   (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 the following:

   …

   (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).

8. By way of background, the applicant is an Iranian national who arrived in Australia [in] July 2013 as an ‘unauthorised maritime arrival’ (UMA) as defined in s 5AA of the Act. In May 2017, he lodged an application for a SHEV, which is a temporary visa. Among other things, the applicant claimed to fear harm in Iran on the basis of his conversion to Christianity. The delegate was satisfied that the applicant met the visa criteria and the applicant was granted the visa on 22 June 2018, with an expiry date of 22 June 2023.

9. The delegate’s decision record indicates that:

   ·On 10 February 2021, the New South Wales Police (NSW Police) provided a ‘Facts Sheet’ to the Department, indicating that [in] February 2021, the NSW Police attended a residence in NSW and placed the applicant under arrest for contravening a prohibition/restriction in an Apprehended Violence Order (AVO). The applicant was cautioned and conveyed to [a] Police Station where he was charged with two counts of breach of AVO. The applicant was granted bail to appear before [a] Local Court [in] July 2021. The NSW Police provided a record of the applicant’s previous convictions and the following details regarding bail:

   … The other bail conditions are to comply with the AVO conditions. The AVO conditions are:

   NATIONALLY RECOGNISED DVO
   1. You must not do any of the following to protected people (being [the ex-partner]), or anyone she has/have a domestic relationship with:
   A) assault or threaten her,
   B) stalk, harass or intimidate her, and
   C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of protected people

   6. You must not approach protected people or contact her in any way, unless the contact is:

   A) through a lawyer, or
   B) to attend accredited or court-approved counselling, mediation and/or conciliation, or
   C) as ordered by this or another court about contact with child/ren, or
   D) as agreed in writing between you and the parent(s) about contact with child/ren

   9. You must not go within 100 Metres of:

   A) any place where protected people lives/live, or
   B) any place where she/he works/work, or

   C) any place listed here.

   ·The Australian Criminal Intelligence Commission provided the Department with a copy of the applicant’s criminal history as of 24 February 2021 which confirmed the criminal record provided by the NSW Police, namely that at [the] Local Court, the following occurred:

Date
[July] 2021	Contravene prohibition/ restriction in AVO (Domestic)	Pending Court Appearance
[July] 2021	Contravene prohibition/ restriction in AVO (Domestic)	Pending Court Appearance
[July] 2020	Contravene prohibition/ restriction in AVO (Domestic)	Fine: $1,000
[July] /2020	Stalk/intimidate intend fear physical etc harm (domestic) - T2	Conviction with no other penalty
[February] 2020	Drive while licence application refused - 1st offence	FINE: $300 Disqualification - driver: 3 months commencing [February] 2020

NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/NOTICE) & RESPONSE

10.     On 13 July 2021 and 22 October 2021, the Department sent to the applicant an NOICC to which he did not respond.

Material provided to the Tribunal

1. The applicant provided to the Tribunal the following:

   ·A statutory declaration of the applicant sworn on 6 June 2022. The applicant outlined his background, his arrival in Australia and the reasons for departing Iran due to his fear of harm on the basis of his religious conversion and involvement in AA. The applicant described his relationship with his children as being positive and demonstrating strong attachment. The applicant outlined his drug and alcohol misuse and his “intense shame, regret and embarrassment when I look on that time”. He accepted that his behaviour towards his former partner was unreasonable and he expressed remorse for that behaviour; he stated that he accepts full responsibility for what occurred. The applicant emphasised his attempts, actions and commitment towards his recovery. He expressed the commitment and desire to make a genuine effort to play a positive role in his children’s future, although he respects the conditions of the AVO which prevented him from seeing his children.

   ·Submissions of the representative dated 8 June 2022.

   ·A report from [Ms A], drug and alcohol clinician at [a clinic], dated 26 May 2022, referring to the applicant’s attendance at counselling to address “drug and alcohol issues, depression and anxiety” due to migration experiences and being separated from his wife and children. [Ms A] noted the applicant has been prescribed medication by his doctor for the treatment of depression and anxiety, as well as his participation in online individual counselling aimed at raising self-awareness, relapse prevention, anger and stress management, problem solving, drug and alcohol intervention, cross‑cultural issues (family dynamics), healthy relationships and goal setting. [Ms A] referred to the applicant’s daily attendance at Alcohol and Narcotics Anonymous (AA and NA) meetings.

   ·A statutory declaration of [Mr B], subcommittee chairman of the [specified] NA meetings, dated 1 June 2022, confirming that the applicant has taken part in NA meetings since February 2021. [Mr B] referred to the applicant as an active member of the group who has been entrusted with looking after newcomers while managing his own recovery. [Mr B] considered the applicant to be doing well and is a good role model for other “recovering addicts”.

   ·A child support assessment application acceptance, dated 4 May 2022, confirming the amount of child support payable by the applicant for the period covering 5 October 2021 until 4 January 2023.

   ·Photographs of the applicant with his children.

2. In the submissions dated 8 June 2022, the representative indicated that the applicant does not dispute that he has been convicted of contravening an AVO on three occasions, [in] July 2021 (x2) and [in] July 2020. He Has also been convicted of stalk/intimidate [in] July 2020 and driving while licence application refused [in] February 2020. He contended that the visa should not be cancelled on discretionary grounds.

3. During the hearing, the applicant confirmed that he has been convicted of the above offences.

4. On the evidence, the Tribunal is satisfied that the applicant has been convicted of the above offences and 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 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

6. The applicant arrived in Australia as a UMA and he applied for the SHEV. The applicant sought protection on the grounds of, among other things, his conversion from Islam to Christianity and involvement in AA. He was granted the SHEV essentially based on those claims. The applicant continues to claim that if he were to return to Iran, he would be seriously harmed due to those reasons, including his active involvement in AA in Australia.

7. The applicant has three minor children in Australia, two of whom are his biological children. The children live with their mother with whom the applicant no longer has a relationship.

8. The Tribunal is satisfied on the evidence that the applicant’s purpose in travelling to Australia was consistent with him seeking protection. He was granted a temporary visa, the SHEV, based on the claims he had made. In submissions to the Tribunal, it was contended that the applicant has a compelling need to stay in Australia on the basis of being recognised to be owed Australia’s protection, as well as in recognition of the principles of family unity found in the Convention on the Rights of the Child.

9. The Tribunal accepts that the applicant was granted the SHEV as the delegate recognised Australia’s protection obligations. Those obligations remain to be engaged, unless and until there is evidence to the contrary. The applicant continues to claim to have a well-founded fear of persecution if returned to Iran on account of his conversion to Christianity, as well as his involvement in AA while in Iran and Australia.

10. The applicant has provided photographic evidence of him and his children. During the hearing, he referred to his involvement with the children (prior to the AVO conditions) and the significant role he played as a parental figure in their lives.

11. The Tribunal is of the view that the applicant’s circumstances mean he has a compelling need to remain in Australia.

12. The Tribunal gives this consideration weight against cancellation.

    The extent of compliance with visa conditions

13. The applicant did not respond to the Notices. In submissions to the Tribunal, it was accepted that the applicant did not respond to the NOICCs, which were sent to the applicant’s last known addresses and emailed to the applicant on his last known email address. As well, he was contacted by telephone on his last known telephone number. The lack of response led the delegate to conclude that the applicant had not complied with condition 8565 of the visa, requiring the applicant to inform the Department of any change in address.

14. In the submissions, it was accepted that the applicant had failed to comply with condition 8656, however, it was contended that this must be considered in the context of the applicant’s circumstances at the time of the Notice. The applicant was homeless from 2019 and has only recently found long-term accommodation. The applicant was forced by his circumstances and due to the lack of financial means to change his address frequently. His lack of English skills at the time also meant that he did not know or understand how to organise a forwarding mail address, and even if he did, it was often not certain where he would be going to next. The applicant was living largely in trains and train stations for a long time.

15. The submission further explained that on the first occasion the Notice was sent, the applicant had been bailed in relation to one of the offences and this was a temporary address. When the applicant moved, the letter was not forwarded to his new address. The applicant received a new telephone from a charity, and he had difficulties in setting up a new email address as he was in substance withdrawal at the time. On the second occasion, which was after the Department was informed by the NSW Police that the applicant’s bail conditions had been varied to allow him to reside at that address, the applicant was suffering from severe depression and was unable to take action to respond to the Department’s letter. He did, however, respond in an email to the visa cancellation section on 22 November 2021, and although that action was delayed, it does signify that the applicant never held the intention to evade or ignore the Department’s attempts to contact him.

16. During the hearing, the applicant explained that due to homelessness and other issues, he did not receive the Notices or was able to respond.

17. There is independent corroborative evidence before the Tribunal relating to his homelessness and mental and physical health. The Tribunal is persuaded by the applicant’s explanations.

18. The Tribunal gives this consideration neutral weight.

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

19. In case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. Given his mental health, there is a degree of hardship associated with potential detention and removal.

20. The applicant gave evidence about the hardship that he would suffer in case of cancellation, including not being able to see his children. In written submissions, it was argued that the cancellation of the applicant’s visa would result in a range of significant psychological, emotional and health consequences. The applicant suffers from depression and anxiety for which he has been prescribed medication. It was argued that if removed from Australia, the applicant would lose access to the level of mental health care available to him in Australia.

21. The evidence before the Tribunal indicates that the applicant has made progress towards his recovery from drug and alcohol misuse, and that the availability of culturally safe and comprehensive drug and alcohol rehabilitation services have contributed to that recovery. The Tribunal is persuaded by the submissions that if removed, it is plausible that the applicant would not be able to access the same level of care in relation to those problems as he currently receives in Australia. This is because central to the problem is substance misuse, including alcohol, which would be viewed negatively in Iran. If placed in indefinite detention, it is plausible that the applicant’s mental health would deteriorate, jeopardising his recovery.

22. The applicant has been convicted of breaching domestic violence orders against his former partner. It is reasonable to accept that cancellation could potentially mean a longer separation from his children, particularly if the applicant had to depart Australia or be detained indefinitely. This could cause a degree of emotional, financial and psychological hardship to the applicant and to his children.

23. In essence, the Tribunal accepts that cancellation of the applicant’s visa could result in significant personal, psychological and economic hardships, including not being able to assist his children financially.

24. The Tribunal gives this consideration weight against cancellation.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

25. The ground for cancellation arose as a result of the applicant being convicted of the above offences. In oral evidence and in the submissions dated 8 June 2022, the following matters have been raised:

    i.The applicant does not dispute that he has been convicted of contravening an AVO on three occasions, [in] July 2021 (x2) and [in] July 2020. He Has also been convicted of stalk/intimidate on [in] July 2020 and driving while licence application refused on [in] February 2020.

    ii.The applicant was born on [date] in the city of Ahwaz, Iran. He was raised in a Shia household, but he never felt a deep connection to that religion. He worked for many years as a [Occupation 1] in [a] factory and at the age of [age], he developed an addiction to alcohol. He joined a local AA group in his area which not only assisted with his addiction but also introduced him to Christianity.

    iii.Around 2011, two years subsequent to joining AA, the applicant converted to Christianity, although he did not publicly declare the conversion out of fear of being regarded as an apostate. In 2013, the applicant left Iran due to his fear and travelled to Australia as a UMA and he was placed in immigration detention where he remained until July 2014. The applicant found the detention experience to be traumatic and he sustained an injury while playing [sport]. He was prescribed strong painkillers which were the only available treatment on the island. He relapsed into an addiction which continued for many years.

    iv.The applicant met his ex-partner, [named], on Christmas Island. She also came to Australia as a UMA and they began a relationship around January 2015. On 22 June 2018, the applicant was granted the SHEV, in recognition of Australia’s protection obligations owed to the applicant. Although he was included in his ex‑partner’s application, he was granted a visa separately from his ex-partner.

    v.[Applicant’s ex-partner] has a son from a previous marriage. The applicant has two children, born on [date] and [date], from his relationship with [his ex-partner].

1. The applicant acknowledges that the convictions relate to serious offences. The Tribunal formed the view that the applicant is remorseful for the impact that this has had on [his ex-partner] and the children. The evidence is that the applicant has insight and is working on the substance misuse problem which he identifies as being the main cause of his offending. The applicant takes full responsibility. The applicant is an active member of the [specified] NA meetings held at [location] and he has completed over 15 months of being in recovery. He is enrolled in [a] drug and alcohol counselling program and appears to be progressing well.

2. The evidence is that the applicant has had a loving relationship with his children and was involved in raising them until around 2019, when his relationship with his ex-partner began to deteriorate. The applicant has described his intense regret for letting his substance misuse get in the way of being the kind father that he wanted to be. He has a sense of guilt in not being able to financially support his children while he was homeless and is attempting to recover from his substance misuse. The applicant has taken positive steps to rehabilitate his relationship with his children within the legal boundaries that are in place due to the current AVO. The Tribunal accepts that the applicant has applied and received a child support assessment application and he plans to start paying his share of the children’s expenses, assuming that his visa would be reinstated and his work rights restored. In submissions, it was noted that the applicant has received a grant from Legal Aid to attend a family dispute resolution mediation with his ex‑partner to organise a mutually agreed family law order allowing him to spend time with the children.

3. It was submitted that although it is appreciated that the Tribunal cannot go behind or impugn the judicial process that resulted in the convictions, the Tribunal nonetheless may view the convictions as a “starting point” and it is not precluded from considering factors relevant to the applicant’s present circumstances, especially his successful rehabilitation since the original decision of cancellation was made and its impact on the risk of future offending. It was argued that the Tribunal should favourably consider the applicant’s acknowledgement of responsibility for the hurt he had caused to his family due his past behaviour, his efforts to rehabilitate himself from his past substance misuse and its impact on reducing the risk of reoffending, as well as the positive steps the applicant has taken to re-establish contact with his children within the bounds of the law.

4. The Tribunal is mindful that the applicant has committed domestic violence related offences against his former partner, and although his actions are questionable, the applicant is genuinely remorseful. The Tribunal is persuaded by the submissions and explanations.

5. The Tribunal gives this consideration weight against cancellation.

   Past and present behaviour of the visa holder towards the Department

6. As noted, the applicant has provided persuasive explanations about his lack of response to the Notices.

7. The Tribunal gives this aspect neutral weight.

   Whether there would be consequential cancellations under s 140

8. There is no evidence of consequential cancellation under s 140. The applicant’s minor children have visas that are attached to their mother’s visa.

9. The Tribunal gives this aspect neutral weight.

   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

10. In case of cancellation, the applicant would be subject to s 46A and s 48 of the Act which means that he would not be able to apply for another visa whilst in Australia, including a protection visa, unless the Minister lifts the relevant bars using personal non-compellable powers under s 46A(2) and s 48B(1).

11. Moreover, the applicant could become an unlawful non-citizen and could be detained (indefinitely) under s 189 and removed under s 198 of the Act. The Tribunal is mindful that the Minister has a personal non-compellable power in s 195A of the Act to grant a visa if it is in the public interest.

12. The applicant would also be subject to public interest criterion 4013 for three years, in case of cancellation.

13. Although the Tribunal is of the view that those consequences are intended legislative consequences to give power to detention and removal from Australia, in the applicant’s case, they are associated with significant hardship. The applicant was granted the SHEV on the basis of being recognised as a person to whom Australia has protection obligations. It was contended that the applicant continues to hold a well-founded fear of persecution and that his fear stems from his religious conversion to Christianity and active involvement in AA in Iran. Country information confirms that Muslims who convert to Christianity face a high degree of arrest, prosecution and imprisonment. The Tribunal is persuaded by the submissions that given that Australia has recognised its protection obligations to the applicant, indefinite detention could have adverse impacts on the applicant’s life, physical and mental health, and his children who may be denied the benefits of the family dispute resolution process that is underway.

14. The Tribunal gives this aspect 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

15. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.

16. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). “Non-refoulement obligations” is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

17. Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

18. The Tribunal will now consider whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act. The applicant has been found to be owed Australia’s protection obligations and he was granted a temporary visa on that basis. The Tribunal is of the view that the grant of a temporary visa was intended by the legislature to be a scheme to enable Australia to fulfil its international obligations and those under the Act and provide temporary protection to those who meet the criteria. The Tribunal gives weight in favour of cancellation to the fact that this is a temporary visa that has an expiry date, and legally, there is no basis for a personal expectation of permanency for the holder of this visa.

19. With limited exceptions, an applicant whose visa is cancelled and becomes an unlawful non‑citizen is liable to be removed from Australia as soon as practicable, as required by s 198 of the Act. Section 197C(1) provides that, for the purposes of the removal obligation in s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non‑citizen. Section 197C(2) provides that it is an officer’s duty to remove a person under s 198 as soon as is reasonably practicable irrespective of whether there has been an assessment of non‑refoulement obligations.

20. Furthermore, the Tribunal observes that the cancellation of a visa is legally distinct from removal. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (Amending Act) amends the Act and is designed to ensure, through ss 197C and 198, that a non-citizen will not be removed from Australia if found to engage protection obligations.

21. Section 197C was amended in May 2021, to include new subparagraphs (3) to (9). The amended s 197C(3) provides that, despite s 197C(1) and (2), s 198 does not require or authorise removal of an unlawful non-citizen if, in the course of having their last protection visa application considered, there was a protection finding made, unless that decision with the protection finding has been quashed or set aside, the Minister is satisfied that the non-citizen is no longer a person in respect of whom a protection finding would be made, or the non-citizen has requested removal. To complement this, a new s 197D(2) has also been inserted – it provides that, for the purposes of s 197C(3), the Minister may make a decision that a person is no longer a person in respect of whom a protection finding would be made. Generally speaking, a protection finding relates to a favourable finding by the Minister or a delegate in relation to some or all of the relevant protection visa criteria. The Tribunal is satisfied that the practical effect is that, in relation to the cancellation of a protection visa, the former visa holder will not be subject to removal under s 198 unless and until there is a further decision under s 197D that a protection finding would no longer be made.

22. The Tribunal further observes that the Department may also conduct an International Treaties Obligations Assessment (ITOA), which is an assessment by the Department of whether Australia’s non-refoulement obligations under international treaties are engaged in relation to a person.

23. In light of the impact of ss 197C and 198 of the Amending Act and the ITOA as discussed above, as well as the pending SHEV application, the Tribunal is not satisfied that Australia would be in breach of its non-refoulement obligations, in case of the cancellation of the applicant’s visa.

    Convention on the Rights of the Child (CROC)

24. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interests of the child.

25. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, to protection against abuse and exploitation, and to participate fully in family, cultural and social life. The four core principles of the Convention are non‑discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

26. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

27. The Tribunal discussed with the applicant his children and raised the issue that the Tribunal considers that violence to be serious, which the applicant accepted, and he expressed remorse.

28. In submissions, it was noted that the applicant has acknowledged that he is prevented from contacting his children due to the current AVO and he understands that this has been necessitated by his own past conduct for which he holds great remorse and regret. The Tribunal accepts that the applicant has taken the necessary steps to rehabilitate himself and has made an active decision to re-establish his relationship with the children by applying for child support and applying for a grant of legal aid to be represented at the family dispute resolution mediation which is planned to occur shortly.

29. The question for the Tribunal is what decision is in the best interests of the children, not what the children might do if their parent were required to cease living in Australia.[1] On balance, the Tribunal accepts that is in the best interests of the children to be afforded a right to have access to their father after he has been rehabilitated and that it is important to acknowledge that the applicant has played a role in raising the children who have formed many early positive memories of him being in their lives. The applicant’s children also have the right under Article 12 of the Convention to express their views freely in all matters affecting them. The family dispute resolution conference is an opportunity for their views to be properly considered in any future arrangement and for the applicant to spend time with them. In case of cancellation, the children would have lost the opportunity to make their views known in relation to any parenting arrangement and this would not be in their best interests.

    [1] Wan v MIMA (2001) 107 FCR 133, at [27]-[28].

30. On the evidence, the Tribunal is satisfied that Australia would be in breach of its international obligations under the CROC in case of cancellation.

31. The Tribunal gives this aspect significant weight against cancellation.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. The SHEV is a temporary visa. The Tribunal has dealt with ties under other considerations.

33. The Tribunal gives this aspect neutral weight.

    Any other relevant matters

34. There are no other relevant matters.

35. The Tribunal has carefully considered the material before it individually and cumulatively. The cancellation process is not intended to be a simple mathematical or formulaic process but an assessment involving a balanced determination. The Tribunal acknowledges that the applicant has been convicted of offences that involved his former partner. The Tribunal has explained its reasons, and on balance, the Tribunal is satisfied that the evidence weighs heavily against cancellation.

36. The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Antoinette Younes
    Deputy President