2210931 (Refugee)

The applicant, a holder of a Safe Haven Enterprise visa (subclass 790), sought review of the Minister's decision to cancel his visa. The cancellation was based on section 116(1)(g) of the *Migration Act 1958* (Cth), specifically regulation 2.43(1)(oa) of the *Migration Regulations 1994*, which permits cancellation if the holder of a temporary visa has been convicted of an offence. The applicant admitted to being convicted of five offences on three separate occasions.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the applicant's circumstances, including his history of persecution in Sri Lanka and his compelling need to remain in Australia due to engaging Australia's protection obligations.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established, as the applicant, a temporary visa holder, had been convicted of offences. However, this ground did not mandate cancellation under section 116(3). In exercising its discretion, the Tribunal considered the applicant's arrival in Australia in 2012 seeking protection and his subsequent grant of a Safe Haven Enterprise visa based on Australia's protection obligations. The Tribunal noted the applicant's well-founded fear of persecution in Sri Lanka due to perceived political opinion and ties to the Liberation Tigers of Tamil Eelam, including past interrogation, detention, torture, and ongoing targeting by authorities. This history gave rise to a compelling reason for the applicant to remain in Australia, which weighed heavily against cancellation.

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