Saadati (Migration)

This matter concerned an appeal by the applicant, Mr. Saadati, against the cancellation of his Business Skills (Provisional) visa (Subclass 188). The cancellation was based on the grounds that his presence in Australia posed a risk to the safety of individuals, specifically his estranged wife, due to allegations of assault and threats, and a Family Violence Interim Intervention Order. The applicant and his wife presented contradictory accounts of the events in question, and the applicant had failed to appear in court for criminal charges related to the alleged domestic violence, subsequently returning to Iran.

The primary legal issue before the court was whether the applicant's presence in Australia constituted, or could constitute, a risk to the health or safety of any individual, as contemplated by section 116(1)(e) of the Migration Act 1958 (Cth). This required the Tribunal to determine if there was a probative basis for such a finding, even if that basis was merely a possibility arising from past events, acknowledging that this threshold is low. The court also had to consider the irreconcilable nature of the competing narratives presented by the applicant and his wife, and the limited investigative steps taken by the Tribunal.

The court reasoned that while the threshold for finding a risk to safety is low, a probative basis is nonetheless required. It noted the significant discrepancies between the applicant's and his wife's accounts, including details of an alleged assault, the location of the applicant on a particular night, and his alcohol consumption. Despite some inconsistencies in the applicant's own evidence, such as the omission of his wife being on the telephone in a written response and the timing of his departure to Iran following his father's hospitalisation, the court found these did not sufficiently undermine his credibility. Crucially, the court gave weight to the evidence of a witness who had known the applicant for approximately eight months and intended to sell him a business. This witness found the applicant to be a good person, considered the wife's account not credible, and testified that the applicant had complied with the Family Violence Interim Intervention Order by not contacting his family and instead pursuing parenting orders through legal channels. The court concluded that the applicant's presence in Australia did not meet the threshold of being a risk to the health or safety of any individual.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 188 visa.