2017330 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The applicant, a citizen of the United Kingdom, had arrived in Australia in January 2013 on a temporary work visa. His relationship with his former partner broke down in March 2015, and he was subsequently charged with several offences. While many of these charges were later withdrawn or resulted in acquittals, the applicant was convicted of two offences in December 2020. His original temporary visa had been cancelled in November 2016, a decision that was affirmed on merits review and subsequently by the Federal Circuit Court. The applicant's appeal against that affirmation to the Federal Court was adjourned pending the final determination of the criminal proceedings. The applicant was held in immigration detention following his convictions.

The primary legal issue before the Tribunal was whether the applicant's Bridging E visa should be cancelled, given his criminal convictions. This involved considering the grounds for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(1)(p)(i) of the *Migration Regulations 1994* (Cth), which prescribe conviction of an offence as a ground for cancellation. The applicant contended that his convictions were not final as he was appealing them and believed he had good prospects of success, arguing that he should not be regarded as convicted until his appeal was determined.

The Tribunal considered the evidence, including the Verdict and Judgment Record and the Reasons for Judgment from the District Court of [State 1], which clearly indicated the applicant had been convicted of unlawful stalking and attempting to pervert the course of justice. The Tribunal found that the applicant's submission that he had not been convicted was not accepted, as there was no documentation to suggest the convictions had been set aside. Despite the existence of a ground for cancellation, the Tribunal, after considering all the circumstances, concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.