Sulinski (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant's visa was granted on the basis of nomination by Dassault Systemes Australia Pty Ltd, with the nomination approved on 6 October 2016. The applicant's employment with the nominating company ceased on 30 January 2019. A Notice of Intention to Consider Cancellation was issued by the Department on 17 October 2019, and the Department noted that the applicant had not obtained a new nomination.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant had complied with visa condition 8107, which requires that if the holder ceases employment, the period must not exceed 90 consecutive days without a new nomination. If the ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(b) was satisfied, as the applicant had ceased employment and had not obtained a new nomination within the prescribed period. However, the Tribunal determined that cancellation was not mandatory under section 116(3). In exercising its discretion, the Tribunal had regard to the circumstances in which the ground for cancellation arose. The applicant had been charged with a criminal offence on 29 October 2018, which led to the termination of his employment. Crucially, the criminal charge was dismissed on 8 March 2019, with the prosecution offering no evidence. The applicant also filed an unfair dismissal application, which was subsequently settled by a Deed of Release. The Tribunal considered the dismissal of the criminal charges and the settlement of the unfair dismissal claim as factors strongly weighing against cancellation, noting there was no evidence of criminal conduct by the applicant and that the termination of employment was outside his control.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.