Nikaj (Migration)

Nikaj (Migration) [2023] AATA 3590 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Andi Nikaj
REPRESENTATIVE:  Ms Jessica Edis
CASE NUMBER:  2311340
HOME AFFAIRS REFERENCE(S):          BCC2021/516752
MEMBER:Shahyar Roushan
DATE:9 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 09 August 2023 at 10:38am
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in connection with employer nomination visa application – criminal convictions, suspended sentence and fine, and one charge pending – discretion to cancel visa – nomination approved and visa application in progress – Australia citizen partner and step-children – partner’s previous circumstances and mental health – relationship with step-children and their best interests – possibility of relatively prolonged immigration detention until criminal charge resolved and working visa application processed – nature of offences – guilty plea to previous charges and intention to plead not guilty to pending charge – work record – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 July 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa (BVA) under s 116 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a 33-year-old dual national of Italy and Albania. He first arrived in Australia on 27 October 2013 as a holder of a Working Holiday visa (Subclass 417) and was subsequently granted a Temporary Work (Skilled) visa (Subclass 457). He has departed and re-entered Australia on multiple occasions.
On 12 April 2021, the applicant applied for an Employer Nomination Scheme (ENS) visa (Subclass 186) and was granted a BVA in connection with that application, which is yet to be determined.
On 31 July 2023, the applicant’s Bridging visa was cancelled under s 116(1)(g) of the Act after he was convicted of multiple criminal offences.
Notice of Intention to Consider Cancellation
On 31 July 2023, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging visa under s 116(1)(g) and r. 2.43(1)(oa) on the basis of his convictions of offences against laws of the State of Western Australia. The NOICC stated that information provided by the Australian Border Force confirmed that the applicant has been convicted of the following criminal offences in Western Australia:
·[Date]/08/2021 [Deleted]
·[Date]/12/2020 [Deleted]
Attached to the NOICC was a List of Criminal Court Outcomes detailing the offences referred to.
The applicant was interviewed on the same day as the NOICC was issued and his responses were referred to in the delegate’s decision record. A copy of the delegate’s decision was provided to the Tribunal in connection with his review application.
The applicant’s response
According to the delegate’s decision record, the applicant stated that he wishes to remain in Australia to continue to work for his employer and sponsor. The business, which specialises in soak wells, is struggling and his employer would not be able to complete work if the applicant is not here to help. He also stated that he has been in a relationship with [Ms A] for three years. [Ms A] is a single mother of three children, and he provides some financial assistance to the household. [Ms A] and her children would struggle without him.
The delegate’s decision
On 31 July 2023, a delegate of the Minister cancelled the applicant’s visa under section 116(1)(g) relying on prescribed grounds in Regulation 2.43(1)(oa) on the basis that the applicant has been convicted of an offence against a law of the state of Western Australia.
Review application
The applicant applied for a review of the delegate’s decision on the same date the delegate cancelled his visa. He was represented in relation to the review by Ms Jessica Edis.
Pre-hearing submissions
In her Outline of Submissions, dated 6 August 2023, Ms Edis stated that applicant works for SWB Plumbing and Drainage Pty Ltd (SWB) as a Drainer and SWB nominated the applicant for the ENS visa. The nomination was lodged on 31 March 2021 and the corresponding visa application was lodged on 9 April 2021. The nomination was approved on 29 April 2022.
Ms Edis confirmed that, in addition to the conviction listed above, the applicant has been convicted of ‘[offence]’ under [named Act] (WA). The applicant also has a pending charge, arising from a police search of his motor vehicle on [date] June 2023 and [item] being found in his car. The applicant disputes the allegation that the [item] is unlawful and contends that [explanation of item]. The applicant has been on bail and intends to enter a plea of not guilty to the charges.
Ms Edis accepted that the applicant has been convicted of offences against laws of the State of Western Australia while holding a temporary visa and submitted that ‘there is no dispute that a ground of cancellation of the applicant’s Bridging Visa existed’.
With regard to the factors relevant to the exercise of the Tribunal’s discretion, Ms Edis made the following submissions.
The applicant has lived and worked in Australia for a continuous period of almost 10 years. He has a pending application for a permanent ENS visa. The nomination lodged by SWB has been approved and SWB continues to support the applicant and his ongoing employment within its business. In addition, the applicant has an Australian citizen partner and stepchildren who comprise his immediate family unit and ‘form a very significant factor in support of the applicant’s “purpose […] to […] stay in Australia”’.
As a result of the cancellation of his visa and subsequent detention, the applicant will no longer be able to work for his sponsor, and he will be separated from his family unit ‘for an indeterminate period’. His separation from his partner and stepchildren is causing, and will continue to cause, severe hardship for them by rendering [Ms A] a single parent to her three young children, [Ages]. The children have no relationship with their biological father and the applicant has been ‘their father figure’ for at least two years. He also assists [Ms A] and her children financially.
[Ms A]’s previous relationship with her ex-partner involved [Circumstances] and has caused her to suffer from ‘severe anxiety and post-traumatic stress’. She has become reliant on the applicant for emotional support and moving forward with her life.
Australia’s obligations under the Convention of the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR) are relevant in this case. A serious consideration of the best interests of [Ms A]’s children suggests that the applicant’s visa would not be cancelled. Under article 9(1) of the CROC, children should never be separated from their parents against their will except when 'necessary for the best interests of the child'. In this case, [Ms A]’s children do not wish to be separated from the applicant, ‘who is their stepparent and sole father figure’. Article 17 of the ICCPR also provides that that all people have the right to be free from arbitrary interference with their family and the cancellation of the applicant’s visa and his detention ‘constitutes an act of arbitrary interference with the family unit comprising the applicant, [Ms A], and the three children’.
There is no information to suggest that the applicant has not been compliant with his visa conditions. He has consistently been cooperative in his dealings with the Department.
The cancellation of the visa means that the applicant will remain in immigration detention until his ENS visa application is finally processed. The application, however, cannot be approved while there is a pending criminal charge, and there is no guarantee of a prompt resolution of that matter. In addition, ‘a Bridging Visa E application is not a practicable solution available to the applicant’ due to ‘a very high likelihood of a refusal or cancellation outcome, based on the immigration department’s current operational processes’.
There is no suggestion that the applicant poses a risk or danger to the Australian community. His prior convictions did not involve any acts of violence and were not sufficiently serious to require the applicant to be placed in custody and no action was taken by the Department after they were notified of the convictions by the applicant. In relation to the pending charge, a judicial officer considered it appropriate to grant bail to the applicant, and he was abiding by the conditions imposed until the time he entered immigration detention.
Ms Edis submitted that there is no fair or reasonable explanation for cancelling the applicant’s visa at this time.
In support of her submissions, Ms Edis forwarded to the Tribunal a number of documents, including:
·An ‘Outline of Evidence’ by the applicant, dated 4 August 2023.
·Statutory declaration by [Ms A], deposed to on 4 August 2023.
·Statutory declaration by the applicant’s employer, Mr Symon Brown, deposed to on 3 August 2023.
·Statutory declaration by the applicant’s brother, Mr Sokol Nikaj, deposed to on 3 August 2023.
·Statutory declaration by [Ms A]’s mother, [Ms B], deposed to on 4 August 2023.
·Copy of the applicant’s Subclass 186 Nomination approval.
·Copy of the applicant’s employment contract with SWB.
·Copies of the applicant’s 2023 Payslips.
·Photographs depicting the applicant together with [Ms A] and/or her children.
·Copy of History of Court – Criminal and Traffic, issued by WA police, listing the applicant’s convictions.
·Transcript of sentencing proceedings before the Perth Magistrates Court, dated [date] August 2021.
·Copy of the applicant’s bail conditions linked to his recent pending charges.
The applicant appeared before the Tribunal on 7 August 2023 to give evidence and present arguments. The Tribunal also took oral evidence from [Ms A] and Mr Brown. Where relevant, the oral evidence given at the hearing is referred to in the Tribunal's reasons below.
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(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r 2.43(oa) is relevant.
Reg 2.43 Grounds for cancellation of visa (Act, s116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))
As already noted, the applicant has been convicted of offences against the laws of the State of Western Australia. At the hearing, the applicant confirmed that he has been convicted of the offences referred to above.
The Tribunal, therefore, finds that the applicant has been convicted of offences against laws of the State of Western Australia. The Tribunal is satisfied that the ground for cancellation under s 116(1)(g) and r 2.43(1)(oa) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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
The Tribunal accepts that the applicant first arrived in Australia on a Working Holiday visa in 2013 and, apart from travelling back to Italy for relatively short periods, he has lived and worked in Australia since then. The Tribunal accepts that the applicant worked for and was nominated by SWB for an ENS visa. The applicant applied for the visa on 9 April 2021 and the nomination was approved on 29 April 2022. Whilst the evidence before the Tribunal has raised questions in relation to the extent of the applicant’s commitment to working for his sponsor, the Tribunal accepts that his intention is to continue to work in Australia. The Tribunal also accepts that the applicant has been in a genuine relationship with [Ms A] since 2020 and this relationship has provided him with a compelling reason to remain in Australia. The Tribunal gives this factor moderate weight in favour of not cancelling his visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Persons in Australia (other than in an excised offshore place) who are known to be, or reasonably suspected of being, unlawful non-citizens must be detained under s 189 of the Act. The applicant is currently in immigration detention and cancellation of his BVA would result in his continued detention. In the circumstances of this case, the Tribunal is of the view that his loss of liberty is unlikely to be for a limited time frame. As noted by the delegate, the effect of s 48 of the Act would be to limit the applicant’s options so far as any further visa application is concerned. Whilst the applicant’s ENS visa application will continue to be processed, there is no certainty as to when a decision is likely to be made. Ms Edis submitted that the ENS visa is unlikely to be granted until the ‘pending criminal charges are resolved’ and that a trial in relation to the pending charges will not be set until sometime next year. She also submitted that she had been ‘informally’ advised by the Department’s Status Resolution Service that an application for a Bridging Visa E is likely to be refused under s 501 of the Act. There was no evidence before the Tribunal to contradict these submissions.
The Tribunal further accepts that the applicant may potentially be granted a Criminal Justice visa (CJV). However, the Department will only consider granting a CJV after a criminal justice certificate has been issued by the police or the relevant State or Commonwealth Director of Public Prosecutions. There was no evidence before the Tribunal to suggest if or when a CVJ will be issued to the applicant.
Whilst the applicant is unlikely to be indefinitely detained, his detention is likely to be relatively prolonged upon cancellation of his visa. As discussed below, there are further adverse consequences that may flow from the applicant’s continued confinement. The Tribunal has given this factor moderately significant weight in favour of not cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that, as a consequence of being detained, the applicant has lost his ability to work and has been physically separated from [Ms A] and her children.
In his Outline of Evidence, the applicant stated that if his BVA remained cancelled, he would be unable to return to work and would suffer financially. His inability to work may also adversely impact the assessment of his ENS visa.
The evidence before the Tribunal indicates that the applicant commenced working for SWB in June 2021. According to the Department’s decision record, the applicant had told the delegate that his employer would not be able to complete projects if he (the applicant) is not there to help. However, the applicant’s own evidence, including the payslips he has submitted, and Mr Brown’s written and oral evidence to the Tribunal suggested that the applicant did not work for SWB for a period of two months between March and May 2023 and that he was on ‘leave without pay’. When he eventually returned to work on 18 May 2023, he did so as a casual employee, as stated by Mr Brown at the hearing. The applicant again went on leave without pay approximately four weeks later, returning to work on 20 July 2023. At the hearing, it was conceded that the applicant was not working for Mr Brown ‘consistently’ since March 2023. The applicant stated that when he was not working for Mr Brown, he did ‘some jobs’ working as a casual labourer because the pay was better, stressing that there was no visa condition that required him to continuously work full-time for Mr Brown. When his evidence to the delegate was put to him, he stated he was not sure what to do because of his circumstances and he took on casual jobs instead. Mr Brown also told the Tribunal that the applicant had indicated to him that he intended to move to Adelaide and he was undecided as to whether or not he would remain in Perth.
The Tribunal appreciates the applicant’s evidence at the hearing that the death of his cousin’s son in Adelaide in December 2022 had caused him much distress. He did not know what he was doing, and he had intended to move to Adelaide to be with his extended family. Nevertheless, this stands at odds with the applicant’s claims to the Department that his inability to work for SWB would cause hardship to Mr Brown, when it appears that he did not work at SWB for reasonably extended periods between March and July 2023, he was treated as a casual employee and had caused Mr Brown to form the impression that he intended to move to Adelaide. Whilst the Tribunal accepts that the cancellation of the applicant’s visa would cause him financial loss, it does not accept that the cancellation would cause Mr Brown any meaningful hardship.
The Tribunal accepts that the applicant entered into a relationship with [Ms A] sometime in early 2020 and they started living together in mid-2021. At the hearing, the applicant expressed concern for the welfare of [Ms A] and her children. He stated that they are his family and have experienced hardship previously when [Ms A] ex-partner abandoned the family. He stated that [Ms A]’s children are still young, and they see him as a father figure. The children have been impacted by his detention and [Ms A]’s [youngest child] has called him twice, crying on the phone. He is also unable to continue to support the family financially and emotionally if his BVA remained cancelled. In his Outline of Evidence, the applicant referred to the potential adverse impact of any prolonged detention on [Ms A] and her children.

In a statutory declaration deposed on 4 August 2023, [Ms A] outlined the background history of her relationship with the applicant. She stated that she had experienced [Circumstances] during her relationship with the father of her children. She has severe anxiety and finds it very difficult to talk about her past experiences. It took her a long time to learn to trust the applicant because of her past experiences and he has been very patient, understanding and protective of her and her children. He has been ‘a constant presence’ in her children’s lives for at least two years. Her children do not have any relationship with their biological father who left when her daughter was only [age]. The applicant ‘is the father to [her] children that they never had’.
[Ms A] stated that the applicant is ‘extremely involved and supportive of the children’s routine and activities’. He helps with school runs, making lunches, taking them to their activities. His connection with her children is ‘genuine and reciprocal’ and ‘he treats them each with love and kindness, and they have flourished because of it’. The applicant is a male role model for her [son], who is now able to be more of a child again rather than carrying household responsibilities to assist her. Her [other] son enjoys the applicant’s company, who has been involved in teaching him about and improving the young child ‘s physical and emotional skills in sports and competitive activities. Her [daughter] sees the applicant as the father she never met as he left the family when she was [age]. [Ms A]’s daughter’s behaviour, joy, and feels very close to the applicant. Since the applicant’s detention, her daughter ‘is sometimes inconsolable at nighttime’ as they spent ‘a lot of time together’ and he attended many of her [activities].
[Ms A] stated that not having the applicant in her children’s lives would represent losing the strong male role model, mentor, and caring father figure they now treasure. The applicant is now a member of the household who cares about the wellbeing and academic progress of her three kids, creating a healthy family environment for all. Not having him living at home has affected the mood, mental state, and financial stability of herself and her children. [Ms A] stated that the applicant contributes financially towards the household expenditure by paying a portion of the rent, the utilities bills, and grocery shopping bills. He also contributes to household chores, enabling her to continue to focus on raising her children. She and her children ‘have suffered a lot of hardship’ over the past six years and they have become heavily reliant on the applicant in their day to day lives. The applicant’s detention has been traumatic on the family and her children are extremely worried and confused about what is going on.
In her oral evidence to the Tribunal, [Ms A] essentially reiterated what was reflected in her statutory declaration. When asked about the applicant’s intention to move to Adelaide, she stated that the death of the applicant’s cousin was traumatic for him and she wanted to be supportive, which included enabling him to spend time with his extended family members.
The Tribunal has also considered the contents of [Ms B]’s statutory declaration. [Ms B], a registered [Occupation], stated that she and her husband enjoy a strong relationship with the applicant, and it is apparent to her that the applicant has become ‘integrated within our family system in a healthy, supportive and functioning role, and is a very welcome part of our family dynamic’. His relationship with her daughter ‘has been very positive’ and he has brought ‘fresh hope’ into her life ‘for a happy long-term family future together’. He has been ‘incredibly helpful’ for [Ms A] ‘to recover from a previous toxic and traumatic relationship’ and he is actively involved in her children’s lives. [Ms B] stated that not having the applicant at her daughter’s family home living like a family unit affects the mental health, financial wellbeing and stability of her daughter and her grandchildren. His absence would put them at risk of financial instability and interfering with their academic and other activities. His continued detention means that her grandchildren would miss a father figure and her daughter would lose a supportive partner and would struggle on her own.
The Tribunal accepts the evidence provided with regard to the nature of the applicant’s relationship with [Ms A] and her children. The Tribunal considers this evidence to be persuasive and reliable. The Tribunal accepts that the applicant resided with [Ms A] since mid-2021 and that the relationship has been stable and strong. The applicant financially and emotionally supports [Ms A], who was previously in an abusive relationship. The Tribunal also accepts that [Ms A]’s three young children reside in the same household and that they have developed a very close relationship with the applicant. He is regarded as a father figure and is loved by all three children. The Tribunal accepts that the cancellation of the applicant’s visa and his continued detention would likely to cause [Ms A] and her children substantial hardship. The Tribunal has placed significant weight on this factor.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
On the basis of the evidence outlined above, the Tribunal has formed the view that it is in the best interests of [Ms A]’s children that they are not separated from the applicant and that they are able to continue to live with both [Ms A] and the applicant in the same household. The Tribunal finds that the cancellation of the visa is not in the children’s best interests as a primary consideration and that the damage to their interests that would flow from the cancellation and the applicant’s continued detention is serious. The Tribunal has placed significant weight on this factor.
Circumstances in which ground of cancellation arose
The ground for cancellation arises because the applicant has been convicted of [offences]. He pleaded guilty to the offences and received a suspended prison sentence. The applicant did not express any remorse or insight into these offences and the Tribunal found his evidence, particularly in relation to the first offence, to be self-serving and obtuse.
In his Outline of Evidence, the applicant referred to the sentencing transcript for his 2021 conviction, noting that the Magistrate had twice stated that she found the ‘whole incident [to be] confounding’. The incident was indeed confounding. According to the transcript of the submissions made by the applicant’s legal representative in those proceedings, the applicant was asked to deliver a bag containing [item] to another person at Perth airport. This person had subsequently travelled to Adelaide, where he was apprehended. The applicant was told and knew that the bag contained [item] and he knew the person the bag was given to. In his evidence to the Tribunal, the applicant did not directly address the offence. Asked if he knew what was in the bag when he delivered it to the recipient at the airport, he replied he did not. When it was put to him that this response contradicts the contents of the transcript, he stated that his court appearance was two years ago, and he could not remember what he had said at that time. The Tribunal finds this response highly unsatisfactory. The Tribunal is not satisfied that the grounds for cancellation arose as a result of any extenuating circumstances beyond the applicant’s control. The Tribunal gives this factor moderately significant weight in favour of cancelling the visa.
As a relevant matter, the Tribunal has considered the pending charges against the applicant. On [date] June 2023, the applicant was again [charged with an offence], arising from a police search of his motor vehicle, which uncovered [item]. In July 2023, the applicant was charged with the offence of ‘[Offence]’ under [Legislation] for declining to answer questions to determine the legitimacy of the [item] found in his vehicle.
According to his own evidence, the applicant was driving to Adelaide when he was stopped by the police. The applicant disputed the allegation that the [item] was obtained illegally, contending that [explanation of the item]. He has been granted bail and intends to enter a plea of not guilty to the allegations of criminal conduct. As it was put to the applicant at the hearing, there are similarities between the offence he was convicted to in 2021 and the pending charges, in that on both occasions he was in possession of [an item in circumstances]. He responded that he has not been convicted of the more recent charges and the [item] he was carrying included [sub-item]. He stressed that he was working with his criminal lawyer to account for the origins of the [item]. Ms Edis attempted to draw distinctions by stressing that the pending charges arose in different circumstances and related to [item], which was actually in the applicant’s possession. He has asserted belongs to him and knows where it came from. This is different to a situation where one is asked by a friend to hand a package over to some one else. The Tribunal did not find these submissions persuasive and is of the view that there are sufficient similarities between the two incidents, together with the applicant’s lack of cooperation with the authorities on both occasions, to raise legitimate questions and concerns regarding the applicant’s activities. Ms Edis also submitted that the Tribunal does not need to be ‘vexed’ with the seriousness of the criminality of the pending charges, particularly in circumstances where the applicant was granted bail and consideration was given to whether he would be a danger to the community. The Tribunal, respectfully, takes a different view and considers the offences the applicant has been charged with to be serious and places moderate weigh on this relevant factor in favour of cancelling the visa.
The extent of compliance with visa conditions
There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions of his BVA or any other visa he was granted in the past. The Tribunal gives this factor neutral weight.
Past and present behaviour of the visa holder towards the Department
The Tribunal accepts that there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal gives this factor neutral weight.
Whether there would be consequential cancellations under s 140
There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s 140.
Conclusions
The Tribunal has considered the applicant’s circumstances. The applicant has been convicted of offences against the laws of the State of Western Australia and the Tribunal has found there are grounds for cancelling his visa. The Tribunal has considered the factors which weigh in favour of cancelling the visa, most significantly the circumstances in which ground of cancellation arose and the recent offences the applicant has been charged with. However, the Tribunal finds that the individual and cumulative effect of the considerations weighing against cancelling the visa, including the potential legal consequence of relatively prolonged detention, the financial, psychological and emotional hardship that may be experienced by the applicant, [Ms A] and her children, and the best interests of [Ms A]’s children as a primary consideration, outweigh the considerations in favour of cancellation. Considering the circumstances as a whole, 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 010 (Bridging A) visa.
Shahyar Roushan
Senior Member

[2023] AATA 3590

9 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice