Sulinski (Migration)

[2021] AATA 786

Sulinski (Migration) [2021] AATA 786 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krystian Sulinski

CASE NUMBER:  1932407

HOME AFFAIRS REFERENCE(S):          BCC2019/3287495

MEMBER:Bridget Cullen

DATE:16 February 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 16 February 2021 at 12.16pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment more than 90 days – no new nomination – applicant charged with a criminal offence – employment ceased – criminal charge dismissed – unfair dismissal application – financial hardship – Deed of Release – decision under review set aside   

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of his visa, namely being in breach of visa condition 8107. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by telephone on 26 October 2020 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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(1)(b). 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?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. Sub part (3)(b) of this condition requires that if the visa or last substantive held by the applicant was a subclass 457 (Temporary Work (Skilled)) visa granted n the basis that the applicant met the requirements, that if the holder ceases employment – that period must not exceed 90 consecutive days.

7. The applicant was granted the Subclass 457 visa based on being nominated in an approved nomination lodged by Dassault Systemes Australia Pty Ltd. The nomination was approved on 6 October 2016, and the applicant’s visa was granted on the same day for a period of four years.

8. On 31 January 2019, the applicant’s nominating company wrote to the Department that the applicant had ceased employment with them, effective 30 January 2019. A Notice of Intention to Consider Cancellation (NOICC) was issued by the Department on 17 October 2019. The only response the Department received was an extension of time request. The Delegate at the time of their decision noted that the applicant had not obtained a new approved nomination to work in the nominated position for an approved sponsor.

9. There is no evidence before the Tribunal that the applicant has obtained a new nomination to work in the nominated position for an approved sponsor.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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

11. 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’.

12. The Tribunal considers, given the circumstances in which the ground of cancellation arose (to be explained below), that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose

13. On lodgement, the applicant provided some documents which gave the Tribunal a general understanding of the chronology of events in the applicant’s situation.

14. On 29 October 2018, the applicant was charged with a criminal offence. On that day, the police attended the nominating company’s office and executed a search warrant. These two incidents led the nominating company to end the applicant’s employment, as notified to the applicant on 30 January 2019.

15. On 8 March 2019, the applicant had the criminal charge dismissed as the prosecution had no evidence to offer supporting the charge.

16. During this time, the applicant filed an unfair dismissal application with the Fair Work Commission on 20 February 2019. Up until the date of the hearing, the only evidence the Tribunal had on this was that the applicant had a conciliation scheduled by telephone in relation to this matter on 20 March 2019.

17. At the hearing, the applicant told the Tribunal of the incredible stress he had faced, as a consequence of the accusations that had been levied against him, prior to the charges being dropped in totality. He explained that losing his employment in these circumstances had exacerbating the stress, placing him under financial strain, as well.

18. Immediately following the hearing, the Tribunal received a copy of the Deed of Release, and a letter addressed to the applicant from Fair Work Commission dated 20 March 2019, confirming a settlement was reached and provided some detail into the settlement terms.

19. There is no evidence before the Tribunal indicating that the applicant has engaged in any criminal conduct of any sort. The Tribunal considers the fact that the charges against him were dropped, with no evidence to offer supporting the charges, to be a factor that strongly weighs in favour of not cancelling the visa.

20. The Tribunal also considers the Deed of Release, settling the unfair dismissal claim made by him, to be a factor that also weighs strongly in favour of not cancelling the visa. The ending of the applicant’s employment in these circumstances was clearly outside the applicant’s control.

21. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Bridget Cullen
    Member