2119356 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa). The applicant, a citizen of Pakistan, had been granted the visa on the basis that he owed protection obligations from Pakistan. A condition of the visa, condition 8570, required the visa holder not to enter a country of reference without the Minister's written approval based on compassionate or compelling circumstances. The applicant had travelled to Iran and Pakistan in 2018, breaching this condition.

The primary legal issue before the Tribunal was whether the Minister's discretion to cancel the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth) should be exercised. This required determining if the ground for cancellation existed and, if so, whether the circumstances warranted cancellation. The Tribunal was satisfied that the applicant had breached condition 8570 by travelling to Iran and Pakistan without the requisite approval.

In considering the exercise of discretion, the Tribunal had regard to the applicant's explanation for breaching the visa condition. The applicant stated that he travelled to Pakistan to care for his elderly and unwell mother, who required hospitalisation and had no other family members available to assist her. He provided extensive medical documentation supporting his mother's kidney condition and subsequent surgery. The Tribunal also considered the applicant's response to the notice of intention to cancel, where he admitted the breach but emphasised it was to save his mother's life and that he was the sole provider for his family. The Tribunal noted the applicant's long-term employment in Australia and his statement that he had informed the Department of his travel upon his return.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's visa.