Nikaj (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 010 (Bridging A) visa under s 116 of the *Migration Act 1958* (Cth). The applicant, a dual national of Italy and Albania, had applied for an Employer Nomination Scheme (ENS) visa and was granted a Bridging A visa in connection with that application. The cancellation was based on the applicant's convictions for multiple criminal offences in Western Australia.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's Bridging A visa was the correct and preferable one, considering all relevant circumstances. This required the Tribunal to determine if the ground for cancellation existed and, if so, to exercise its discretion regarding whether the visa should be cancelled, taking into account factors that weighed for and against cancellation.

The Tribunal found that the ground for cancellation under s 116(1)(g) and r 2.43(1)(oa) of the *Migration Regulations 1994* was established, as the applicant had been convicted of offences against the laws of Western Australia. However, the cancellation was not mandatory. In exercising its discretion, the Tribunal considered the applicant's long-term presence and work history in Australia, his genuine relationship with his partner and her children, and the potential for prolonged immigration detention and hardship to himself and his partner's family if the visa were cancelled. The Tribunal also noted that the ENS visa application would continue to be processed, but its grant was uncertain pending the resolution of pending criminal charges. The Tribunal concluded that the cumulative effect of the considerations weighing against cancellation, including the best interests of the partner's children, outweighed the considerations favouring cancellation.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 010 (Bridging A) visa.