2210184 (Refugee)

[2023] AATA 3288

2210184 (Refugee) [2023] AATA 3288 (18 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Lauri Stewart

CASE NUMBER:  2210184

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE OF ORAL DECISION:  18 July 2023

DATE OF WRITTEN STATEMENT:         31 July 2023

PLACE OF DECISION:  Melbourne

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) visa.

Statement made on 31 July 2023 at 4:08pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – applicant convicted of family violence – separation from family – financial hardship – indefinite detention – non-refoulement obligations – best interests of the children – adversely impacted by unintended consequences – decision under review set aside

LEGISLATION

Migration Amendment (Clarifying International Obligations for Removal) Act2021
Migration Act 1958, ss 35, 36, 46, 48, 116, 140, 189, 195-198
Migration Regulations 1994, rr 2.12, 2.43

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. At the time of the decision of the Minister’s delegate, the applicant had been convicted of unlawful assault and sentenced to a Community Correction Order for [a period] along with unpaid community work of a 100 hours.

3. Arising from this fact, the delegate cancelled the applicant’s visa under s 116(1)(g), reg. 2.43(1)(oa), which reads:

   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))

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 18 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A], [Wife A], [Witness B] and [Witness C].

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. The Tribunal gave its decision on the review at the conclusion of the hearing held on 18 July 2023. The following are the written reasons for that decision.

8. 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

9. 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(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.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, as noted above, the ground in reg 2.43(1)(oa) is relevant.

11. The applicant submitted a Digital National Police Certificate dated [in] July 2023. The certificate showed that the applicant had been convicted for unlawful assault. This was not in dispute.

12. As the applicant was convicted and noting that the relevant regulation refers to the Minister or the Tribunal in this instance being satisfied that the visa holder has been convicted of an offence, I am satisfied that the ground for cancellation in s 116(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

13. 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’ which I have used as sub-headings below.

    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

14. The applicant is married and has two Australian citizen children aged [ages] living in Australia. The applicant’s stated need to remain in Australia is to participate in the children’s upbringing and to remain together with his family. The applicant and the witnesses provided evidence of the role he played in the family during the period since he lost his work rights. It was put to the Tribunal that the applicant picks up the children from childcare, plays with them, takes them out, and cooks meals for them. His wife described him as a ‘loving and caring father’. The applicant has expressed a clear desire to participate in the raising of the children and has been fulfilling the role of a father.

15. In considering the weight to be placed on this matter there is the perspective of the applicant, as a father, wanting to remain in Australia and the perspective of the needs of the children for their father to remain. With regards to the latter, I consider this further below under the best interests of the child.

16. With regards to the applicant’s perceived and actual needs to be a father, there is no indication from the applicant’s wife or her parents who appeared as witnesses, that the applicant has been anything but a committed father to the children and that he has genuinely undertaken that role. Recognising the importance of fatherhood to a sense of purpose and fulfillment for some, a generality that I accept applies to this applicant, I place considerable weight against cancellation for the reason of his wanting to fulfil the role of a father to his children.

17. The applicant also has a fear of returning to Iran. He claimed that a purpose for him to remain in Australia is to not face harm were he to be forced to return to Iran. As will be explained further below, the structure of the legislative framework and the specific circumstances facing Iranian citizens is such that this decision can not lead to the applicant being returned to Iran. As such I place no weight on this consideration.

    The extent of compliance with visa conditions

18. There is no evidence before the Tribunal that the applicant has not complied with the visa conditions imposed on him. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.

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

19. The applicant and witness described the hardship that they faced since the applicant lost his work rights. This includes that they have faced financial problems and that their mortgage is facing an August 2023 mortgage cliff and they don’t know how they will cope with that. In her statutory declaration to the Tribunal, she wrote that her salary is insufficient to cover the cost-of-living increases and interest rate rises in addition to the ongoing cost of feeding, housing and educating the children. She expressed a fear of losing their home.

20. In addition to the financial hardships the applicant and his wife expressed the emotional hardship that will arise from their separation. The concern for the applicant’s wife was whether they would be able to continue their relationship under the circumstances of the applicant being in immigration detention for a long period of time. She wrote in the 2023 statutory declaration: ‘I have spent a very long time thinking and worrying about this. If [the applicant’s] visa is cancelled, I cannot see a situation where he and I would be able to continue our relationship, or where he would have a meaningful relationship with [their children’s names]. It breaks my heart when I realise that my children could grow up without a father.’

21. In addition to the hardship faced by the applicant’s wife, children and the applicant himself being detained, the parents-in-law of the applicant attended the Tribunal hearing and provided evidence. They were both aware of the circumstances that led to the conviction, specifically the assault upon their daughter, but still, upon reflection and consideration of the situation spoke positively of the applicant and how it would impact them were his visa to be cancelled including that they would have to contribute more time and money to supporting their daughter and the grandchildren. The applicant’s mother-in-law noted how difficult it is that her daughter is working and raising two children and that she was concerned for the boys that they may not have a father figure.

22. Noting that the couple have had past experience of living apart for what amounted to a period of six months and as such some insight into the level of hardship that they would face, I accept their descriptions of how the situation would play out in their lives. I accept that they would face considerable financial hardship and that the nature of the possible consequences could lead to the marriage dissolving. I also recognise the value this family places on having a father figure in the boys’ lives which would lead to the grandfather spending more time with the two boys and in turn some degree of hardship for not having the flexibility to continue to work or retire as he would deem preferable. For these reasons combined, I place moderate 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.

23. The circumstances upon which the ground of cancellation arose is because of the applicant’s perpetration of family violence against his wife.

24. The facts of the case are not before me in their complete form such as a set of sentencing remarks. Instead, I have a police report which was made on the basis of statements by the applicant’s wife but also a letter prepared with the assistance of a legal firm amending some of the claims made by her including a request dated [in] September 2021 to withdraw the complaint against her husband. She wrote, ‘The Statement I provided to Police had factual inaccuracies in it as I was highly emotional at the time, confused with the process and I could not recall the exact events in a proper manner.’ It is not the role of this Tribunal to resolve this situation as the matter has been heard by a magistrate.

25. I note that the sentence handed down by the magistrate was a Community Correction Order for [a period] along with unpaid community work of a 100 hours. Relevantly, there was no custodial sentence. I accept this to be an indication of the severity of the incident being on the lower end of the scale as determined by the magistrate.

26. An understanding of the events leading up to the violence is relevant when considering how to approach the discretionary elements. It is not in dispute that the applicant was heading out to a Christmas party [in] December 2019 already intoxicated. His wife gave evidence to the Tribunal while the applicant and her family were outside of the hearing room.

27. The applicant’s wife described her husband as previously being a weekend binge drinker. She described the period leading to the incident as being a period of a lot of stress as their child was [age] old and her parents work full time and that she and her husband had not received much support. She said that their argument was relatively normal.

28. Describing the specific incident, she said that she suggested that he shouldn’t be so drunk going out to a Christmas party. She believes that he didn’t take well to that comment and then just snapped. She claims that he had never acted in that way before or after. She put it down to her diagnosis with post-natal depression and the applicant not being able to provide any support to her which was exacerbated by alcohol. She wrote in her statutory declaration dated 6 July 2023 that it was out of character for the applicant to act in that way.

29. Following the incident, they had a few days during which they didn’t speak to each other. She went to her parents and her brother would visit her to check up on her.

30. She said that she didn’t want to go to the police but a friend encouraged her and so she did. She said that arising from that report a Final Intervention Order (IVO) was put into place which forced a [shorter] separation (the IVO was said to be for [a longer period] but due to COVID lockdowns and his effective participation in programs it was abridged).

31. The applicant’s wife said that she learned that during this period he was depressed, in part because they missed having Christmas together, and that the Court orders to participate in programs appeared to help him. She added that he took time off work to think about things.

32. With the lifting of the IVO, she said that they had a long discussion about their future and chose to move back in together. The applicant and his wife have been living together since then for over two years. She said that the applicant has not exhibited any anger management issues during this period.

33. Instead, she claimed that his communication has improved. She said that he would now speak up more and they would discuss issues openly. She described it as a wall being removed and that they no longer tried to attack each other.

34. She added that both had received professional help while apart. She participated on her own volition and by herself in marriage counselling, during which she claims that she learned more about herself and her insecurities, including the challenges of transitioning to becoming a wife and a mum. She reiterated his participation in the court ordered men’s behaviour programs had helped.

35. The applicant’s wife wrote in her statutory declaration to the Tribunal that the applicant now only drinks on ‘special occasions and not in excess’. She wrote that ‘we have both matured as individuals, as parents and as a husband and wife.’

36. The applicant’s wife described examples of his changed behaviour as including that when he gets angry, he is better at verbalising his concerns, that he is able to walk away when he needs to and clear his head and that they are able to together talk through issues.

37. It is not in dispute that the applicant acted in a manner that was criminal. In considering the circumstances surrounding the applicant’s actions, evidence was provided by his wife that the challenges they were facing including, adapting to their new roles as parents and partners and her facing post-natal depression, were inducing a combative relationship. This does not excuse the applicant’s behaviour; it simply provides the context. Within this context the applicant acknowledged that his drinking to excess played a role. He did not seek to minimise his culpability arising from his drunkenness. While I accept that drunkenness led to his acting out of character, it cannot be said nor was it claimed that he had lost personal agency due to the drunkenness as may be the case were he to have suffered a mental illness. As he remained responsible for his actions I place some weight in favour of cancelling the applicant’s visa.

    Past and present behaviour of the visa holder towards the department

38. There is no evidence before the Tribunal that the applicant has had any adverse engagement towards the Department. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.

    Whether there would be consequential cancellations under s 140

39. There are no consequential cancellations that arise from a cancellation of the applicant’s visa. As such I place neutral weight on this matter.

    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

40. If the applicant’s visa is cancelled and he exhausts any rights of judicial review, he will be an unlawful non-citizen. Unless the applicant can regularise his position, he faces the prospect of an extended period in detention for the reasons explained below.

41. Due to the operation of s 46(A) the applicant, as an unauthorised maritime arrival, is unable to apply for a further visa unless the Minister lifts the bar ‘in the public interest’. The Minister has provided guidelines as to which cases should be referred for consideration under the public interest power. The only possible category of cases that could cover the referral of the applicant to the Minister for the consideration of the lifting of the s46(A) bar arises from those who have been ‘adversely impacted by an unanticipated or clearly unintended consequence of the Act or Regulations.’ The applicant’s situation is such that he is married to an Australian citizen. The law anticipates that he would go offshore and apply for a further visa, but the applicant cannot go offshore as it has been found that he would face persecution in his home country. There is no evidence to suggest that he has the right to enter and reside in another country for several years while he awaits the offshore partner visa application process outcome. As such I find that there are unintended consequences in that the applicant is in limbo as is his Australian citizen wife, both unable to apply for a partner visa. For this reason, I find that in these circumstances the guidelines for the applicant’s matter to be considered by the Minister are met and as such that they would be forwarded for consideration. 

42. Without guidance on how the Minister would exercise his personal powers with regards to the lifting of the bar it is speculative to conclude what would occur. But even were I to assume that the Minister would lift the s 46(A) bar, relevant to this decision, s 48 of the Act limits the ability of a non-citizen who has a visa refused or cancelled from applying for further visas other than those on a prescribed list. The prescribed visas are listed under reg. 2.12 among which only one is a possibility considering the specific circumstances of the applicant, namely the partner visa.

43. Due to the operation of s 48A of the Act where a protection visa holder has had their visa refused or cancelled, the citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. Section 35A(3) of the Act defines what encompasses a protection visa and specifically includes temporary protection visas such as the one the applicant held.

44. As the lifting of the ss 46(A) and s 48A requires active intervention by the Minister which would be speculative to assume I find that the status quo remains and specifically that the bars remain in place.

45. The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.

1. When all of these legislative pathways are considered, it is clear that the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removed.

2. Removal, though, carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the relatively new ss 197C(3) and 197D which entered into force by way of the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) that came into effect on 25 May 2021.

3. In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken.

4. A full accounting of these new process was undertaken in a separate matter, 1901883 (Refugee) [2021] AATA 3216 (2 September 2021) which was heard by this member and Deputy President Redfern.

5. The new process created by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) is untested in that an applicant has not seen through the entire process including availing themselves of the opportunity to appeal before the Tribunal. As such the length of time it would take is unknown but based upon current lengthy processing times it would amount to a lengthy period and as such the applicant could remain in detention for an extended period until an outcome is finalised.

6. Depending upon the applicant’s claims at the point in time when his circumstances are considered and depending upon the situation in Iran, the applicant may retain the protection finding or alternatively be found that he is ‘no longer’ a person for whom a protection finding would be made (s 197D(2)) which would then, under usual circumstances, open a pathway to removal.

7. If it is determined that a protection finding would still be made at the time of the decision or at the time of the review, it is not clear how the tension between his criminal conviction and the cancellation of his original visa would intersect other than that he would remain in immigration detention.  This is because while s 189 states that an officer who ‘knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.’

8. Alternatively, if the applicant’s protection finding is no longer in place the applicant still cannot be removed under s 198 for the reason, unique to Iranian nationals, that the Iranian government will not accept forcibly returned failed asylum seekers who arrived in Australia before March 2018.[1] This would apply to the applicant because he arrived in Australia prior to that date and the applicant has stated that he would choose to remain in detention rather than voluntarily leave to Iran.

   [1] DFAT Country Report: Iran, 14 April 2020 [5.27]. Australia and Iran entered into a Memorandum of Understanding to facilitate the return of Iranians who arrived in Australia after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia

9. There is no information before me to suggest the applicant may be able to seek protection in a third country or that the government has plans to negotiate for relocation of Iranian nationals to another country.[2]

   [2] Section 36(3) of the Act provides that Australia does not have protection obligations if a non‑citizen can avail themselves of protection in another country

10. As such, the applicant faces an extended period in detention as either his protection finding is reaffirmed, but future Ministers do not draw on their powers to resolve in a manner favourable to the applicant the impasse, or alternatively the protection finding is no longer in place, but he refuses to return voluntarily.

11. An alternative possibility that arises during the applicant’s detention that may open a pathway away from this impasse is for the Minister to use his powers under s 197AB which provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is the power that has allowed non-citizens being placed in what is colloquially known as ‘community detention’.

12. But there are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[3] Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister relevant to the applicant is:

    a.where the continued presence of the person in Australia would pose a threat to an individual in Australia, to Australian society or security, or may prejudice Australia’s international relations.

    [3] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

13. On the other hand, among the profile of cases to be referred to the Minister’s attention there are none that align with the applicant’s circumstances.

14. How the Department deals with the applicant’s past offending with regards to the above criteria for the forwarding of requests to the Minister would be speculative and as such I once again assume that the status quo would remain, namely that the Minister would not make a residence determination.

15. As such I find that as the law stands the applicant is liable to be held in immigration detention for an extended period.

16. For the reason of the applicant’s prospect of an extended period in detention, I place heavy 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

17. The applicant has two young Australian citizen children. Both children fall under the Convention on the Rights of the Child as they are presently within the jurisdiction of Australia.

18. Article 3.1 of the Convention on the Rights of the Child (CRC) 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 interest of the child shall be a primary consideration.

19. When considering the best interests of the child I recognise that the applicant is playing a role as the father in the lives of the children. The applicant’s wife in her statutory declaration to the Tribunal described the children as being ‘besotted’ by him. She wrote that as they are terrible sleepers each of the parents sleeps with one of the children at night and that without the applicant she could not raise them both.

20. The possibility of the applicant being in detention was considered by the applicant’s wife in her statutory declaration. She wrote that the [immigration] centre is more than an hour’s drive from where they live. She wrote that she would be unable to drive there after work. She added that the children, ‘would not understand why [the applicant] couldn’t come home with us and why he had to stay there. I believe that it would damage their relationship beyond repair, to see their father in the immigration detention centre. The result of this would be that they would have no relationship, and that is not something that is in their best interests.’ She also noted that its possible that he would be moved to another detention centre but that such an outcome would be worse.

21. While the violence the applicant perpetrated against his wife has had a direct impact upon her and one can assume an indirect impact on the children the considerations I bring to bear now should be forward-looking.

22. The mother of the two children has strongly spoken of her desire for the applicant to have a place in their lives, she does not want his visa to be cancelled. While her preference carries some weight, so does research that indicates at a population level outcomes for children raised in single parent households are worse than those who are raised in two person households.[4] While there are alternative scholarly views and the applicant’s children are individuals and not necessarily representative of the population, I give some weight to the research and accept that the two children would have their futures compromised to some degree if the applicant’s visa were to be cancelled. This could be by way of a lower income that would impact opportunities, lack of a father figure in their lives and the burden upon the mother to undertake the dual role of income earner and parent which in turn may limit her ability to fulfill both to her fullest ability.

    [4] Robinson, Elly, ‘Sole-parent families Different needs or a need for different perceptions?’, Australian Institute of Family Studies, Fallesen, P., & Gähler, M. (2020). Family type and parents’ time with children: Longitudinal evidence for Denmark. Acta Sociologica, 63(4), 361–380; European Commission (2019), Mechanisms supporting single parents across the European Union,

23. For this reason, I find that it is in the best interests of the children that his visa is not cancelled and furthermore, I place considerable weight against cancellation for the reasons of ensuring Australia does not breach its international obligations towards the best interests of the children.

24. The applicant and his children comprise a family. Family unity is a principle that is derived from international treaties such as the International Covenant on Civil and Political Rights, Article 23: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

25. Based on the best interests of the child being not to cancel the applicant’s visa and noting the importance of family unity, I place considerable weight against the cancellation of the applicant’s visa for the purposes of maintaining family unity and ensuring that Australia is not in breach of its obligations towards these international conventions.

26. The issue of non-refoulement has been addressed above with a finding that the applicant will not be removed within the context of this decision and as such the situation does not expose Australia to a potential breach of its non-refoulement obligations. As such I place no weight on this consideration.

    Any other relevant matters

27. The applicant wrote in his statutory declaration to the Tribunal that he is ‘ashamed by my choices and my actions in hurting [Wife A] and every day I am thankful that she has forgiven me.’ He wrote that he has ‘publicly owned my crime’ in addition to speaking to friends about what can happen when you drink to excess. At the hearing the applicant expressed similar sentiments. I found them believable. I found the applicant very credible and that his remorse for his actions was genuine and deeply held. This was exhibited not only in his speech, but his actions as verified by the witnesses, namely that he has stopped drinking excessively and that he has adopted a more health-conscious regime that reinforces abstinence.

28. In addition to the applicant’s wife verbalising her support for the applicant, she has walked the talk by living with him for the past two years. There is no evidence before the Tribunal that there has been a subsequent incident during this period, which acts to reinforce the applicant’s claims of changing his behaviour.

29. The applicant’s mother-in-law said that everyone makes mistakes but that individuals should be given a chance noting that she has not seen the applicant drink alcohol since the incident. She believes that the applicant has learned a lesson from this and that both are still developing in their maturity and ways to live their lives. The applicant’s father-in-law said that he believes the family has changed for the better and that he has not identified any issues since the incident. He doesn’t believe that they quarrel anymore and believes that they have learned a lot. [A sister-in-law] provided her view that described how the couple talk through their issues now rather than it being explosive as it was before. 

30. For the reasons of the applicant’s genuine remorse and changes in his behaviour as reported by the applicant but also affirmed by witnesses and specifically how in turn that will act to minimise any future risk, I place considerable weight against cancellation.

    Conclusion

31. In reviewing my weightings of these elements, there is a considerable imbalance between the weight against cancellation which weighs heavily and those few reasons that fall in favour of cancellation.

32. But before making a decision, I will note that it is unfortunate that this matter has arisen, not only in its genesis through the applicant’s violent assault on his wife, but that subsequently, somehow, through the application of their discretion a delegate of the Minister thought it appropriate to cancel the visa. In summary, the core elements of this case are that the applicant committed a crime for which a magistrate considered a community correction order with no custodial period suitable, whereas by cancelling the visa the applicant was put on a pathway to being detained at least for several years if not indefinitely, which would amount to a life sentence. It is difficult to understand, even if ignoring the impact to the applicant’s welfare of a life spent in detention, how the far-reaching repercussions to the family losing a father, a husband, and a son-in-law, would not outweigh the one-off violent behaviour that has not been repeated since, even when considering all its ramifications. To set aside this decision is administratively simple, but there can be no remedy to the hurt and pain caused to the applicant and his family over the past few years as they have waited for their case to be heard in this Tribunal.

33. For this reason, I conclude that the visa should not be cancelled.

    DECISION

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

    Denis Dragovic
    Deputy President