2117946 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an Iranian national. The applicant had arrived in Australia as an unauthorised maritime arrival and was subsequently granted a Safe Haven Enterprise (SHEV) visa based on claims of fearing harm in Iran due to his conversion to Christianity and involvement in Alcoholics Anonymous. The cancellation was initiated following the applicant's conviction for contravening an Apprehended Violence Order (AVO) in New South Wales.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) was established, and if so, whether the applicant's visa should be cancelled, considering the discretionary power vested in the decision-maker. The specific ground for cancellation relied upon was Regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth), which permits cancellation if the holder of a temporary visa is convicted of an offence.

The Tribunal found that the applicant had indeed been convicted of offences related to contravening an AVO, thus establishing the ground for cancellation. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. The Tribunal weighed the applicant's compelling need to remain in Australia, based on Australia's protection obligations and his well-founded fear of persecution if returned to Iran, against the seriousness of his offending conduct. Significant weight was given to the applicant's role as a parental figure to his three minor children in Australia, two of whom are his biological children, and the principles of family unity enshrined in the Convention on the Rights of the Child. Despite the applicant's failure to respond to notices from the Department, the Tribunal concluded that the compelling circumstances, particularly concerning his protection needs and his children's best interests, outweighed the grounds for cancellation.

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