Beshlikj (Migration)

This matter concerned an appeal by Mr Beshlikj against the cancellation of his Partner (Provisional) (Class UF) visa, Subclass 309. The cancellation was based on the ground that Mr Beshlikj had been convicted of offences, falling within section 116(1)(g) of the Migration Act 1958 (Cth). The Tribunal was required to determine whether to exercise its discretion to cancel the visa, as the ground for cancellation did not mandate its automatic cancellation.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, the visa should be cancelled. In considering this, the Tribunal had regard to the circumstances of the case, including matters raised by the applicant and guidance from the Department’s Procedures Advice Manual. Key considerations included the purpose of the visa holder's stay in Australia and whether there was a compelling need for him to remain.

The Tribunal noted that the applicant's original purpose of remaining in Australia with his partner had broken down. However, the applicant demonstrated a compelling need to remain due to his relationship with his child. Despite the irretrievable breakdown of his relationship with his former partner, he shared parental responsibility, maintained regular contact with his daughter, and was actively involved in seeking parenting orders. The Tribunal found that the applicant's continued presence in Australia was important for his child's attachment and emotional development, and that he intended to relocate to be closer to his child.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Mr Beshlikj's Subclass 309 visa.