2302383 (Refugee) - [2024] ARTA 14

DECISION AND

REASONS FOR DECISION

2302383 (Refugee) [2024] ARTA 15 (15 November 2024)

Respondent: Minister for Home Affairs
Tribunal Number: 2302383
Tribunal:Simone Burford
Place:Perth
Date:15 November 2024
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 15 November 2024 at 4:42pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – criminal conviction and fine – discretion to cancel visa – unauthorised maritime arrival – protection claims as Hazara Shia accepted – work and financial support for family and wife’s family – circumstances of offending – limited insight into behaviour – application for Safe Haven visa in progress and bridging visa granted – possibility of detention if bridging visa ceases or cancelled – transitional provisions for Resolution of Status visa – uncertainly and hardship – country information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A(1), 116(1)(g)
Migration Regulations 1994 (Cth), rr 2.08G(1), item 1, 2.43(oa)

CASE

NZYQ v Commonwealth (2023) HCA 37

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision 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).
The delegate cancelled the visa under s 116(1)(g) on the basis that they were satisfied that the prescribed ground for cancelling the visa set out in r.2.43(oa) of the Migration Regulation 1994 (the Regulations) was made out.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The hearing was conducted with the assistance of an interpreter fluent in the English and Hazaragi languages.
The applicant appeared before the Tribunal on 2 April 2024 to give evidence and present arguments. The applicant was represented before the delegate and in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

Background

The following is a summary of the applicant’s background which is drawn from the delegate’s decision record and the applicant’s submission. None of these matters were in dispute before the Tribunal.
The applicant is a [Age]-year-old citizen of Afghanistan. He first arrived in Australia [in] November 2012 as an unauthorised maritime arrival.
On 18 November 2016 the applicant was granted a Safe Haven Enterprise (subclass 790) visa (the SHEV). He applied for a subsequent Safe Haven visa on 18 September 2021.
[In] August 2022 the applicant was convicted in the [Magistrates Court] of Indecent Assault. He was fined $5000 payable to the victim of the offence.
On 10 January 2023 the applicant was notified of the Minister’s intention to consider cancellation of his visa under s 116(1)(g) of the Act (the NOICC). He responded to that notice via his then authorised representative, on 25 January 2023. The applicant relied on those submissions before the Tribunal and made additional submissions via his representative.[1]
[1] Applicant’s submissions dated 24 March 2024.
On 15 February 2023 the delegate cancelled the visa under s 116(1)(g) on the basis that the prescribed grounds for cancelling the visa set out in reg 2.43(oa) of the Migration Regulations 1994 (Cth) (the Regulations) existed and therefore the grounds for cancellation existed. Having considered the applicant’s circumstances the delegate decided that the visa should be cancelled. The applicant was notified of the decision by email sent to his authorised representative on the same date.
The applicant provided a copy of the delegate’s decision and notification correspondence to the Tribunal.
The applicant applied to the former Administrative Appeals Tribunal (the AAT) for a review of that decision on 21 February 2023. On 13 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the ART) which commenced operation on 14 October 2024.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the ART in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after the 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the ART.[2]
[2] Item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The applicant was granted a bridging visa on 2 March 2023 and has remained in the community lawfully.

CONSIDERATION OF CLAIMS AND EVIDENCE

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(1)(g). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
The applicant attended a hearing from [City] via video before the Tribunal on 2 April 2024. His representative attended the hearing and made submissions. Prior to the hearing the applicant submitted:
·Submissions from the applicant’s representative dated 27 March 2024
·Copy of the applicant’s criminal history from the Australian Criminal Intelligence Commission (ACIC) dated 20 November 2023
·Records of blood donations – commencing February 2023
·Several articles regarding country conditions in Afghanistan
·Copy of the applicant’s bridging visa E
The applicant submitted further material following the hearing.
In addition, the applicant submitted the following documents to the Department in response to the NOICC visa which was issued on 22 December 2021. The applicant indicated in submissions to the Tribunal that he was relying on this early material and on prior submission:
·Submissions from his representative dated 25 January 2023
·Statutory declaration from the applicant dated 24 January 2023
·Statutory declaration of [Mr A] dated 23 January 2023
·Transcript of WA Magistrate Court regarding the applicant’s conviction and sentencing [in] August 2022
·Records of overseas money transfers by the applicant
·Letter of support to [Magistrates Court] from [Mr B] dated 31 July 2022
·Letter of support to [Magistrates Court] from [Mr C] dated 29 July 2022.

Does the ground for cancellation exist?

s 116(1)(g) - prescribed ground

A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that 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 Regulations. In the present case, the ground in reg 2.43(oa) is relevant. If a visa may be cancelled under s 116(1)(g), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled.[3] There are currently no prescribed circumstances that apply.
[3] s 116(2) and (3).
The prescribed grounds include at reg 2.43(oa) that, in the case of the holder of a temporary visa, the Minister is satisfied that the holder has been convicted of an offence against the law of the Commonwealth, a State or Territory, regardless of whether they held the visa at the time of the conviction and regardless of the penalty imposed.
As referred to in the delegate’s decision record, information from the Australian Criminal Intelligence Commissions (ACIC) recorded that the applicant was convicted of the offence of Common Assault in the [Magistrates Court] [in] August 2022. According to information before the Tribunal the offence arose from events on 20 September 2020, when the applicant was working as [an occupation 1].
In submissions and in oral evidence before the Tribunal, the applicant accepted this record was accurate and that the ground for cancellation existed as the applicant was convicted under the WA Criminal Code, a law of a State, and held a temporary visa other than a Subclass 050 bridging visa, a Subclass 051 bridging visa or a Subclass 444 (Special Category) visa.
For these reasons, the Tribunal is 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 power to cancel the visa should be exercised.

Consideration of discretion

Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), 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 policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
As noted above, the applicant is a citizen of Afghanistan. He told the Tribunal he was from Jaghori Afghanistan and is ethnically Hazara and is a Shia Muslim. His family left Afghanistan for Pakistan some time ago, originally living in Quetta. His mother and sister remain living in Pakistan having moved to Islamabad about a year ago. The applicant told the Tribunal they moved because the Pakistani government was deporting Afghanis. He has a brother in Australia and another living in [Country].
His brother in Australia also lives in [City], is married, and has [children] all living here. The applicant said he had limited contact with the children because he was busy with work.
He has a wife living in Pakistan with her parents. They married in Pakistan in around 2020 and have no children. He told the Tribunal his wife is Afghan.
The applicant has been working as [an occupation 2] for a [company] for more than 3 years. Prior to that he had worked as [occupations 1 and 3].

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

As noted earlier, the applicant arrived in Australia on Christmas Island [in] November 2012 as an unauthorised maritime arrival. He applied for, and was granted, a SHEV.
He told the Tribunal he came to Australia because his life was in danger. He planned to ‘Work, make money and send money to my family and bring them here so can live a life without any danger.’
The applicant sought protection on arrival in Australia and was granted the SHEV on the basis he feared to return to Afghanistan where he would be persecuted by the Taliban due to his ethnicity as a Hazara. The applicant contended that since the Taliban had taken control of Afghanistan there was no safe place for him to return. He would also be at risk from Islamic State in Khorasan Province (ISKP) due to being a Shia Muslim. He said if he returns to Pakistan, he is at risk of being returned to Afghanistan.
The Tribunal considers the purpose of the applicant’s travel and stay in Australia was to seek protection and establish a life in Australia. The applicant planned to settle in Australia permanently and relocate his family to Australia. He continues to maintain claims for protection and submitted that the situation in Pakistan for Afghan Hazaras provided a further compelling reason for him to remain to support his wife and other family members and ultimately to organise their relocation to Australia.
As the applicant’s claims for protection were accepted after his arrival, the Tribunal considers that there was a compelling need for him to travel to Australia.
The Tribunal finds this consideration carries significant weight against cancelling the visa, noting in particular the protection finding made with respect to the applicant. Further, the Tribunal affords some weight to his need to remain in Australia to support his family given the situation of Afghan Hazaras in Pakistan.

The extent of compliance with visa conditions

According to the delegate’s decision, the applicant’s TPV is subject to the following conditions:
· 8565 – Notify of new address
· 8570 – Restricted Travel.
The delegate’s decision noted the applicant did not report a change of address until contacted by the Department. It was contended he had provided up to date details in response to this request and it was contended that he was substantially complaint with the conditions of his visa.
There is no information before the Tribunal to indicate that the applicant has not complied with the conditions of his visa.
The Tribunal considers the applicant has substantially complied with the conditions of his visa and that this weighs slightly in favour of not exercising the discretion to cancel the visa in the applicant’s circumstances.

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

The applicant submitted that the consequence of cancellation would be significant for his wife and family members in Pakistan. The applicant has been in Australia for more than 10 years during which time he has been working and financially supporting his family and his wife’s family. The applicant provided evidence of money transfers to family and non-family members in Pakistan since 2017. These amounts were not insubstantial, and the Tribunal accepts the applicant is providing significant financial support to family members in Pakistan. The applicant was granted work rights on his bridging visa and continues to support his family members.
The applicant submitted that cancellation of his visa would impede his ability to financially support members of his family and would cause them significant financial hardship.
The Tribunal accepts that if the applicant’s visa is cancelled, he will remain in the community until his current SHEV application is determined. If that application is unsuccessful, he may be liable to be detained.
The Tribunal considers the applicant’s personal circumstances will cause his family to suffer if his visa remains cancelled.
The Tribunal places significant weight on this consideration in favour of not exercising the discretion to cancel the visa in the applicant’s circumstances.

The circumstances in which ground of cancellation arose

The Tribunal discussed with the applicant the circumstances in which the cancellation arose. He told the Tribunal he was driving a [vehicle] when he picked up a woman and dropped her near her house. He said that the woman was weeping and complaining that her husband had left her, so he gave her a hug. When he dropped her at her house she was still crying and said ‘give me a hug’ so he did and then he drove away. This was in 2020 though he could not recall when.
The Tribunal noted that the court found that the applicant had indecently assaulted the victim and asked if the applicant accepted that he had and he said ‘no’. The Tribunal put to him that this may indicate a lack of insight into his offending and might cause a concern about a risk of him reoffending and he said that he would never do this again as his life had been ruined. He suffered trauma and depression as a result. He said he had paid the fine to the victim and he wanted to be given another chance.
The Tribunal notes the transcript of the sentencing refer to findings of fact including that the applicant was driving a [vehicle] at the time of the offence. He picked up the victim who had been drinking and was upset. On arrival at the victims home he exited the vehicle and touched the victim including kissing her, pinching her inner thigh leaving bruising and rubbing his erect penis against her when she bent over to collect keys. The contact was unsolicited and unwanted and a victim impact statement referred to by the court referred to the negative impact on the victim.
The applicant conceded in submissions that there were no extenuating circumstances beyond the control of the applicant that lead to the grounds for cancellation existing. In his written statement he said that he accepted he had been found guilty and that he had ‘learned his lesson’. He stated that women deserve his respect and that it had made him very cautious in his relations with women. He said he would now only greet women in ‘the Muslim way’ and avoided communicating with women.
In the Tribunal’s view the applicant minimised his offending and demonstrated a lack of insight into the assault, seeking to blame it on a misunderstanding. The Tribunal does not consider this is consistent with the findings of the court with respect to the offence, including that it was serious because the applicant was in a position of trust or authority with respect to the women as the driver of the [vehicle] when the offence occurred.
However, the Tribunal notes the court considered a fine, rather than sentence of imprisonment, was appropriate taking into account all the circumstances and mitigating factors. The Tribunal also notes the applicant’s submission that he could have been tried on indictment but was instead tried summarily. The Tribunal accepts this reflected the lesser seriousness of the offence as compared with those tried on indictment. However, the Tribunal does not consider this means the offence was not serious.
The applicant contended the behaviour was aberrant and out of character and that he has no prior history. The Tribunal accepts these were mitigating factors. However, the Tribunal remains concerned by the applicant lack of insight into the offence. The Tribunal acknowledges there is no information to suggest the applicant has reoffended since the incident in 2020.
On the information before it, the Tribunal considers the circumstances in which the grounds for cancellation arose were serious and the applicant has demonstrated limited insight into the offence.
The Tribunal considers this weighs in favour of cancelling the visa.

The past and present behaviour of the visa holder towards the Department

There was no information before the Tribunal regarding any adverse behaviour by the applicant towards the Department or Departmental staff.
The Tribunal considers this consideration weighs slightly against exercising the discretion to cancel the applicant’s visa.

Whether there would be consequential cancellations under s 140

There are no consequential cancellations that would occur, and this consideration does not apply in this case.

Whether there are mandatory legal consequences of the cancellation

It was contended that if the applicant’s visa remained cancelled he would be immediately become an unlawful not citizen and be detained. In the Tribunal’s view it is not clear that he would be as he has been granted a bridging visa in the context of the review of his SHEV cancellation, however the Tribunal accepts he would not hold a substantive visa and would remain liable for detention if his bridging visa ceases or is cancelled.
It was submitted that he would be a person who falls within s 46A(1) of the Act and would be prevented from applying for a visa. It was also initially contended that as a protection finding had been made with respect to him he would be liable for indefinite detention however the applicant conceded that following the High Court decision in NZYQ v Commonwealth (2023) HCA 37 indefinite detention would not be a legal consequence of cancellation of the visa though other restrictions on the applicant’s ability to obtain a substantive visa would apply.
The Tribunal accepts the applicant may be liable for detention once the review is determined. However, noting he has been granted a bridging visa E in the context of that review and has not reoffended, the Tribunal considers it likely he would remain on a bridging visa until his outstanding SHEV (RoS) application is determined.
As the applicant’s outstanding SHEV application was made prior to the cancellation of his current SHEV, the SHEV application would not be invalid by operation of the cancellation. That application would remain a valid application until it is determined. The applicant would be subject to any character criteria applying to that visa. While the Tribunal accepts he may be refused the visa as a result of his convictions, that does not arise as a consequence of the cancellation of the SHEV but due to the convictions themselves. Further, the Tribunal considers the outcome of any consideration of character criteria to be speculative. In this regard the Tribunal was not directed to any provision of the Act under which refusal of the outstanding SHEV application would be mandatory.[4]
[4] For example, under the provisions of s 501(3A).
As the applicant has a valid application for a visa on foot, the Tribunal does not consider a legal consequence of cancellation would be that he will be detained indefinitely (even if this were lawful following the High Court decision in NZYQ). The Tribunal accepts he remains liable for detention pending resolution of the SHEV application and once his current bridging visa ceases to have effect. The Tribunal accepts resolution of that application may take a significant period of time (noting the visa application was made in 2021). It was submitted that prolonged uncertainty would have a negative impact on the applicant.
The impact of the cancellation on the applicant’s SHEV application and the ability of that application to be transitioned to an application for a Resolution of Status visa was discussed at the hearing. The applicant submitted that while the SHEV would remain on foot, the applicant would be significantly impacted by cancellation of the current SHEV as this would appear to prevent transition of that visa application to be an application for a status resolution visa. That would mean both that the applicant would be liable to have his protection claims reassessed, unlike in the status resolution visa process. It would also delay his prospects for permanent residency in Australia and impact his capacity to sponsor his family members to resettle here.
The Tribunal notes the cancellation of the visa does not impact the validity of the applicant’s SHEV application. On 14 February 2023, the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 (the Transition Regulations) amended the Regulations to facilitate the transition to permanent residence of persons who arrived in Australia before the TPV/SHEV conversation date (14 February 2023) and who applied for or obtained temporary protection in Australia through a Subclass 785 TPV or a Subclass 790 SHEV. Persons who did not hold a TPV/SHEV on 14 February 2023, but who had held a TPV/SHEV before that day, were unable to have their TPV/SHEV application converted to a Resolution of Status visa application under those provisions. As the applicant’s TPV was cancelled on 3 February 2022, his SHEV application would not have been eligible for conversion under the Transition Regulations.
The amendments made by the Migration Amendment (Resolution of Status Visa) Regulations 2023 (the Amendment Regulations) commenced on 19 October 2023. The Amendment Regulations allow for certain cohorts of TPV and SHEV applicants, who were not included in the previous provisions, to be able to either apply for a Resolution of Status visa or have an existing application converted. Pursuant to these amendments, Regulation 2.08G was amended to repeal paragraph (a) in column 1 of item 1 and 2 of the Regulations, which limited conversion of applications to applicants who held a TPV or SHEV on the ‘TPV/SHEV transition day’ (14 February 2023), and substitute with a new paragraph (a) which applies to applicants who held a TPV or SHEV on or before the TPV/SHEV transition day (14 February 2023). As the applicant held a TPV prior to 14 February 2023, irrespective of the cancellation, he would appear to now fall within the scope of table item 1 of reg 2.08G(1).
Where the amendments allow additional applications for TPV or SHEV to be converted to Resolution of Status visa applications, those conversions occur at the time indicated in column 2 of the table set out in reg 2.08G(1), in effect for valid applications where a TPV or SHEV was held prior to 14 February 2023.[5]
[5] The date of conversion for those now caught within the amending regulations appears to come from there being no application or transitional provisions, see page 22 of the Explanatory Statement which states:
No application or transitional provisions were required for the amendments made by Schedule 1 to this Regulation…To the extent that the amendments allow additional applications for TPV or SHEV to be converted to RoS visa applications, those conversions occur at the time indicated in column 2 of the table set out at sub regulation 2.08G(1).
The effect of this amendment would be that the applicant’s valid SHEV application would be converted to a Resolution of Status visa application regardless of whether the later cancellation of his first SHEV is affirmed. As a result, he would not be the subject of further assessment against protection criteria as part of that Resolution of Status visa application process and his pathway to permanent residency would not be delayed, provided he met the other criteria for that visa. As noted earlier, the Tribunal accepts that character criteria would apply to that application and that the visa may be refused as a result of the applicant’s offences, however those consequences arise irrespective of the cancellation decision.
Similar considerations apply to the applicant’s contention that the cancellation was impacting his ability to support family members on a Community Support Program (CSP) visa application. He provided evidence from a migration company addressed to his brother indicating that until the applicant obtained a RoS visa or citizenship he the CSP application could not be progressed. While the reasons were not clear from that correspondence the Tribunal infers that this is because he would be unable to satisfy criteria to sponsor a person on a CSP unless he is on a permanent visa. In the Tribunal’s view both because the letter indicates a RoS visa or citizenship is required, rather than a SHEV and because the applicant’s current SHEV application remains on foot (and converts to a SHEV) the cancellation does not appear determinative of his ultimate capacity to sponsor a family member on a CSP visa though the proceedings may have delayed his capacity to do so.
While the amendments reduce the impact of the cancellation on the applicant’s position with respect to the ongoing SHEV application, the Tribunal considers this is tempered by the fact the applicant would remain on a bridging visa while his immigration status is resolved. While he can work on his current bridging visa, the Tribunal accepts the ongoing uncertainty is difficult for the applicant and in particular that it impacts his capacity to progress sponsorship of other family members to come to Australia, including where they may meet humanitarian grounds for doing so.
Given the legal consequences of cancellation and in particular the ongoing uncertainty for the applicant’s status pending the resolution of his ongoing visa application, the Tribunal gives this consideration moderate weight against cancelling the visa.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

The Tribunal notes that this is not a decision on removal. The applicant has made an application for a SHEV which has not yet been determined. A protection finding[6] was made with respect to the applicant when his first SHEV was granted and he will not be liable for removal from Australia. As the Tribunal considers his current SHEV application will be converted by the operation of the Regulations to be a Resolution of Status visa application, the protection finding will not be remade or changed in that process. Removal would require a decision to be made that a ‘protection finding’ would no longer be made in respect of that person under s 197D(2). Such a decision would itself be reviewable.
[6] As defined in s 197C of the Act. Section 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen.
As a protection finding has been made with respect to the applicant and removal will not be a consequence of cancellation of his first SHEV, the Tribunal considers that the applicant’s claims for protection are less significant as a factor in the exercise of the discretion in the applicant’s circumstances as the applicant is not liable for return to Afghanistan in those circumstances.
Although the applicant’s earlier submissions provided evidence of non-refoulement claims and country information supporting those, the applicant’s representative accepted at the hearing that non-refoulement did not arise for consideration in the applicant’s circumstances.
The Tribunal notes the applicant’s claims but, for the reasons stated earlier, finds he is not liable for removal and, as such, no risk of non-refoulment arises with respect to the cancellation of his visa. As such, the Tribunal does not place weight on the prospect of removal arising from the cancellation of this visa in the applicant’s circumstances either for or against cancellation of the visa. However, Tribunal accepts the ongoing separation from his family and their situation in Pakistan are relevant considerations. This is addressed further below.
The applicant has no children. He indicated he has a niece and a nephew in Australia, but he has limited day-to-day involvement with them due to work commitments. The evidence was that those children were in the care of their parents.
The children have the care and protection of their parents. The applicant’s relationship to the children is non-parental. The Tribunal accepts the applicant and his brother have limited family connections here and, as such, considers the applicant’s presence in Australia is likely to be of some importance to the children. Accordingly, the Tribunal finds it is in the best interests of the applicant’s children that the visa is not cancelled. Given the nature of the relationship and the limited evidence regarding the children the Tribunal places significant weight on this factor against exercising the discretion to cancel the visa.

If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

As the visa under consideration is a temporary visa, this consideration does not apply.

Other relevant factors

As noted above, the applicant submitted his family were at risk of return to Afghanistan by Pakistani authorities and that cancellation would delay the prospect of relocation to Australia. The Tribunal notes Afghan Hazaras have been the subject of reported return actions by the Pakistani government in recent years and accepts a delay in the applicant’s capacity to sponsor their relocation increases their risk they will suffer hardship, including return to Afghanistan, noting the applicant has been found to be owed protection in that country based on his ethnicity, religion and family background as a Hazara. While non-refoulment obligations are not owed to family members living overseas, the Tribunal considers their circumstances are a consideration which weighs in favour of not exercising the discretion.
The applicant also submitted that he was left in the community following the cancellation of his visa for several weeks as an unlawful non-citizen and then was granted a bridging visa indicating the Department does not consider he represents a risk to the community, in particular to women. It was contended the applicant was not required to sign a code of behaviour or provide a security bond. While the Tribunal does not place significant weight on the grant of the bridging visa as a factoring weighing against exercise of the discretion, noting that the grant of the bridging visa the Tribunal does accept the fact the applicant has not reoffended while remaining in the community weighs in favour of not exercising the discretion. The Tribunal accepts the fact in has remained in the community without reoffending weighs in his favour with respect to his claim to represent a low risk of reoffending.
The applicant also submitted he had made a contribution to the community through work and through making blood donations. The Tribunal affords some limited weight to those factors in favour of not exercising the discetion.

CONCLUSION

The Tribunal has considered all the relevant factors weighing for or against cancellation of the applicant’s visa.
The applicant came to Australia with the purpose of seeking protection and settling permanently in Australia. He planned to relocate his wife and family here when he was eligible to do so.
He has committed a serious criminal offence in Australia. Any offending on a temporary visa is a serious matter and offences against women in circumstances of aggravation are, in the Tribunal’s view, particularly serious. However, the applicant received a non-custodial sentence, has not reoffended and has obtained employment in a different sector. He has committed to not reoffending and while he demonstrated limited insight into his offending the Tribunal accepts he is now acutely aware of the potential impact on his status and on his capacity to support his family members were he to reoffend. The Tribunal also accepts that the applicant is remorseful in light of the significant consequences of his offending for him and his family members.
A protection finding has been made with respect to the applicant and he is not liable to be removed. However, if the applicant’s visa is cancelled, he will not hold a substantive visa until his current SHEV (RoS) application is determined. This uncertainty causes hardship to the applicant and his family members in Pakistan.
The Tribunal has found that there are considerations which weigh in favour of cancelling the applicant’s visa. These considerations include the fact that the applicant committed offences against Australian law.
While the Tribunal considers there are factors weighing in favour of cancellation, the Tribunal finds that those considerations are outweighed by other considerations weighing against the cancellation of the applicant’s visa, in particular the significant hardship caused to the applicant and his family members by the delay in the resolution of his status, the fact he has not reoffended and the consideration that he has been found to be owed protection and cannot be returned to Afghanistan. In this regard the Tribunal notes current country circumstances in Afghanistan do not suggest a material change in the applicant’s circumstances noting he feared harm from the Taliban who took control of Afghanistan since 2021.
Accordingly, having regard to all the relevant circumstances in this case, the Tribunal concludes that the visa should not be cancelled.

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.

Representative for the Applicant: Mr Colin Soo (MARN: 1386729)