2203480 (Refugee)

This matter concerned an appeal by a young Hazara man, who arrived in Australia as an unaccompanied minor, against the cancellation of his Subclass 790 (Safe Haven Enterprise Visa). The visa had been cancelled under s. 116(1)(g) and r. 2.43(1)(oa) of the Migration Regulations 1994, following criminal convictions for common assault and failing to comply with bail conditions. The applicant did not respond to the Notice of Intention to Consider Cancellation.

The primary legal issue before the Tribunal was whether, having found that grounds for cancellation existed, the visa should be cancelled, considering all relevant circumstances. This involved an assessment of the discretion to cancel the visa, the applicant's compelling need to remain in Australia, his compliance with visa conditions, and the degree of hardship that cancellation would cause. The Tribunal also considered the applicant's mental health and the potential for prolonged or indefinite immigration detention.

The Tribunal reasoned that while grounds for cancellation were established, the cancellation was not mandatory. In exercising its discretion, the Tribunal had regard to the applicant's compelling need to remain in Australia, given his refugee status and the ongoing instability in Afghanistan, particularly for Hazaras. Although the applicant had breached a visa condition by failing to notify the Department of a change of address, the Tribunal found that the hardship resulting from cancellation, including the prospect of indefinite detention and its impact on his mental health, weighed heavily against cancellation. The Tribunal acknowledged that setting aside the cancellation would not immediately release the applicant from detention as his visa had expired, but it would significantly improve his options for making further visa applications.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 790 visa.