Bacaj (Migration)

This matter concerned an appeal by Mr Bacaj against the decision of the Tribunal to affirm the cancellation of his Subclass 020 (Bridging B) visa. The cancellation was based on Mr Bacaj's conviction for cultivating a commercial quantity of a controlled plant.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should affirm the cancellation of Mr Bacaj's visa, given that the ground for cancellation did not mandate mandatory cancellation under section 116(3) of the Migration Act 1958 (Cth). The Tribunal was required to consider all relevant circumstances, including those raised by Mr Bacaj and departmental policy.

The Tribunal acknowledged that Mr Bacaj had been convicted of an offence that constituted a ground for visa cancellation under regulation 2.43(oa) of the Migration Regulations 1994. While Mr Bacaj presented evidence of his family ties in Italy and Denmark, his lack of a criminal record in Pistoia, Italy, and his employment history, the Tribunal found that these factors did not outweigh the seriousness of his offending. The Tribunal noted that Mr Bacaj's initial purpose for travel to Australia was temporary, and he had been in Australia for over four and a half years, with a prior student visa application having been refused on the basis of not being a genuine temporary entrant.

Ultimately, the Tribunal affirmed the decision to cancel Mr Bacaj's Subclass 020 (Bridging B) visa, concluding that the factors favouring Mr Bacaj did not outweigh his offending conduct.