2210184 (Refugee)

The Administrative Appeals Tribunal (AAT) considered a case involving the cancellation of a protection visa. The applicant, who had been convicted of unlawful assault, sought to have the visa cancellation decision set aside. The AAT was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The Tribunal first confirmed that the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, as the applicant had been convicted of an offence. However, this ground did not mandate cancellation. The Tribunal then proceeded to consider the exercise of discretion, taking into account the applicant's circumstances, including his role as a father to two Australian citizen children. The applicant provided evidence of his active participation in his children's upbringing, which the Tribunal found to be a significant factor.

The Tribunal placed considerable weight on the applicant's desire and demonstrated commitment to fulfilling his role as a father. While the applicant also raised a fear of returning to Iran, the Tribunal found that the legislative framework and specific circumstances of Iranian citizens meant this consideration did not weigh against cancellation in this instance. Ultimately, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.