1514849 (Migration)

[2016] AATA 4227

1514849 (Migration) [2016] AATA 4227 (10 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ling Chi Kung

CASE NUMBER:  1514849

DIBP REFERENCE(S):  BCC2015/2367539

MEMBER:Katie Malyon

DATE:10 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2016 at 3:42pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made 29 October 2015 by a delegate of the Minister for Immigration and Border Protection to cancel Ling Chi Kung’s Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) under s.116 of the Migration Act 1958 (the Act). Relevant extracts from the Act and the Migration Regulations 1994 (the Regulations) are set out in the Annexures to this decision.

2. The delegate cancelled Ms Kung’s Subclass 457 visa under s.116(1)(b) of the Act on the basis that she had breached visa condition 8107(3)(b) because she had ceased employment with her sponsor for a period exceeding 90 consecutive days and no new 457 nomination application had been approved for another employer. The issue in the present case is whether a ground for cancellation is made out and, if so, whether Ms Kung’s Subclass 457 visa should be cancelled.

3. Ms Kung appeared before the Tribunal on 11 July 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from Jason Lin, a Director of LCYW Fortune Pty Ltd trading as Bakers Delight Gordon (Bakers Delight Gordon) and Michael Rose, Ms Kung’s husband.  Ms Kung was represented in relation to the review by her registered migration agent who also attended the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel Ms Kung’s Subclass 457 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. Relevant to this case, these include the ground set out in s.116(1)(b) of the Act. 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) of the Act if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this case, visa condition 8107 attached to Ms Kung’s Subclass 457 visa.

7. Since Ms Kung’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations, visa condition 8107(3) is applicable. This requires Ms Kung to work only in the occupation listed in the most recently approved nomination in relation to her, and only in the business of her sponsor, or an associated entity. In addition, if she ceases employment, the period during which she ceases employment must not exceed 90 consecutive days. There is an exception which includes certain specified occupations not applicable in this case.

8. Ms Kung’s Subclass 457 visa was granted on 21 October 2014 for a period of 4 years on the basis of an approved nomination in the occupation of Pastrycook with her sponsor, Sichuan Cuisine Pty Ltd (Sichuan Cuisine).  Sichuan Cuisine notified the Department on 17 February 2015 that Ms Kung had ceased employment with the company effective 13 February 2015.  At the hearing, Ms Kung said that her employer told her the company “was selling the business because it was not doing well and I should look for another employer to sponsor me”.  There was some evident confusion about the appropriate period for notice of termination as Ms Kung’s contract of employment was silent in this regard.  She did not take employment law advice at the time of termination of her employment.  Ms Kung told the Tribunal she did not take, or ask for, leave without pay to allow her time to pursue other employment opportunities.  She said her last day with Sichuan Cuisine was 28 February 2015.  Ms Kung added she was not paid for her last week of work with Sichuan Cuisine and is now pursuing that underpayment with the Fair Work Ombudsman. 

9. When advised by Sichuan Cuisine of the sale of the business, Ms Kung said she started looking for work elsewhere and “was lucky to find” Bakers Delight Gordon who agreed to sponsor her.  Ms Kung told the Tribunal that she thought she had done all that was necessary following termination of her employment with Sichuan Cuisine because her former registered migration agent told her she “just had to find a new employer within 90 days”.  She started working with Bakers Delight Gordon as soon as she finished up at Sichuan Cuisine at the end of February 2015.  At no time did her former registered migration agent say she could only start working with her new employer when her new sponsor’s nomination of the position to be occupied by her was approved: that nomination was not approved until 7 December 2015.  The Tribunal discussed with Ms Kung visa condition 8107(3)(a) that requires a Subclass 457 visa holder to work only in the occupation listed in the most recently approved nomination, and only in the business of the sponsor (or an associated entity).  Now aware of the meaning of condition 8107(3)(a) Ms Kung informed the Tribunal she is considering reporting her former agent’s conduct to the Office of Migration Agents Registration Authority (MARA) for failing to advise her appropriately. 

10. Jason Lin, a Director of Bakers Delight Gordon, told the Tribunal that his company engaged Ms Kung’s representative to assist with preparation of a new sponsorship application and nomination when Ms Kung approached him in February 2015.  It was the first time his business had been involved in such activities.  He said Bakers Delight Gordon was desperate for a Baker as his only other Baker is very old, having been with the business more than 20 years, and suffers from poor health, in particular, he has problems with his back and his knees.  Mr Lin explained that to meet target expectations for the business, he needed to engage a Baker who was prepared to work the early morning shift, starting around 1:30 am, as well is on weekends.  He noted that the other Baker is not available over the weekends and is increasingly unavailable for longer shifts due to his age and physical limitations.  Initially, a nomination application for a Pastrycook was prepared together with a new sponsorship application.  Although the sponsorship was approved, there was a problem with the nominated position and it was refused.  Subsequently, a new nomination for the position of Baker was approved, but not until 7 December 2015 by which time Ms Kung had been working with Bakers Delight Gordon for just over 9 months.  She continues to work there as the holder of a Bridging E visa with unrestricted work rights.  Mr Lin told the Tribunal he had no idea his business should not have employed Ms Kung until just before the nomination for her position as a Baker was approved. 

11. Technically, Ms Kung did not cease employment as the holder of a Subclass 457 visa: rather, as the holder of a Subclass 457 visa she continued her employment in Australia, albeit with a new employer.  Accordingly, she has not breached condition 8107(3)(b).  In this regard, the Tribunal has considered the purpose of condition 8107(3)(b) is to ensure that the visa holder continues to be employed and thereby fulfils the purpose for which the visa was granted.[1] The purpose of the Subclass 457 visa program is to assist employers fill skill shortages in their business by sponsoring highly skilled foreign nationals in a nominated occupation. The purpose of the Subclass 457 visa is for holders of that visa to work for an approved sponsor in an approved nominated occupation. By immediately starting work as a Baker with Bakers Delight Gordon following termination of her employment as a Pastrycook with Sichuan Cuisine, the Tribunal finds Ms Kung has breached condition 8107(3)(a) because she worked for just over 9 months with Bakers Delight Gordon before the nomination for her position with her new sponsor was finally approved on 7 December 2015. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. Since that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    [1] Da Sylveria v Minister for Immigration and Border Protection (2016) FCCA 1703, Jarrett J at [24]

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel Ms King’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. In exercising its power to cancel the visa, the Tribunal should have regard to policy as a relevant consideration.  However, policy is not binding on the Tribunal.[2]  The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this case) the preferable decision.[3]

    The purpose of the visa holder’s travel to and stay in Australia

    [2] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380  

    [3] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34]

14. Ms Kung told the Tribunal had she originally came to Australia from Hong Kong as the holder of a Working Holiday visa.  She said it was really hard to find work as a Baker because no one wanted to employ someone who they thought would leave (after 6 months).  At first, she found work as a waitress and then in a medical warehouse before managing to find work as a Pastrycook at Sichuan Cuisine, the company that eventually sponsored her Subclass 457 visa.

15. The Tribunal noted that a Subclass 457 visa is a temporary visa permitting holders of the visa to work for an approved sponsor in an approved occupation.  Ms Kung’s representative provided to the Tribunal evidence of an approved nomination dated 7 December 2015 for the position of Baker with Bakers Delight Gordon identifying Ms Kung as the nominee.  The Tribunal is satisfied that Ms Kung would be able to fulfil the purpose of the Subclass 457 visa and this weighs in favour of not cancelling her visa. 

    Extent of compliance with visa conditions, now and on previous occasions

16. The Tribunal discussed condition 8107 with Ms Kung.  She told the Tribunal that she “really did not understand” the implications of the condition that she not cease working for her sponsor for more than 90 days.  Ms Kung said her migration agent told her that all she had to do was “find another sponsor within 90 days”.  She was pleased when she managed to do this because Bakers Delight Gordon were “desperate” to have her skills and the principal of the business, Mr Lin, told her the company would be “happy to sponsor” her.  She said “I don’t know what’s involved in the process, but I know I found a sponsor who wanted to sponsor me” after Sichuan Cuisine told her the business was sold and she should find someone else to take over her sponsorship.  The Tribunal accepts that Sichuan Cuisine orally terminated Ms Kung’s employment with the company and that Ms Kung successfully managed to seek alternative employment.

17. In assessing the severity of Ms Kung’s breach of visa condition 8107 and determining whether the Tribunal should exercise its discretion to cancel her visa, it is relevant to establish whether she was made aware of the conditions attached to her visa.  Asked if she knew about the conditions that attached to her Subclass 457 visa Ms Kung acknowledged that she “recalls getting an email”.  Extracts from the Department’s approval notification sent to Ms Kung relevantly state as follows:

    
    
    

Client Name

Ling Chi KUNG

Visa Conditions

8107 – WORK LIMITATION

8501 – MAINTAIN HEALTH INSURANCE

Visa conditions and entitlements

Your visa has been granted subject to the conditions specified in the table.  If you do not comply with these conditions, there may be serious consequences including:

·visa cancellation

·detention

·removal from Australia

More information on visa conditions and entitlements is available at visa/vevo

Requirements if you stop working for your sponsor

If you stop working for your sponsor you must do one of the following within 90 days of ceasing employment

·find another employer who is willing to nominate you

·apply for another type of substantive visa

·make appropriate arrangements to depart Australia. 

If more than 90 consecutive days have passed since the date you ceased employment,
you may be in breach of condition 8107 and may have your visa cancelled.

1. In relation to the ‘8107 - WORK LIMITATION’ condition attached to her Subclass 457 visa Ms Kung told the Tribunal that she was aware that she needed to find another sponsor within 90 days of leaving the employment of Sichuan Cuisine.  Because a nomination application is an employer initiated process she had no role in sorting out transfer of her Subclass 457 visa from Sichuan Cuisine to Bakers Delight Gordon, apart from signing the employment contract when she was offered the position of Baker with Bakers Delight Gordon.  Ms Kung told the Tribunal she relied entirely on representations from her former migration agent, who was also assisting Bakers Delight Gordon, that everything was in order.  With the benefit of hindsight, she now regrets this and laments she was so poorly advised. 

2. Ms Kung told the Tribunal that she did not review the Department’s website details included in her Subclass 457 visa approval notification extracted above.  The Tribunal has independently attempted to view the information visa holders may obtain should they wish to read further information about the conditions attached to their Subclass 457 visa.  The link quoted in the approval notification extracted above does not work.  This may be a technical issue arising from the fact that the Department changed its website details on 1 July 2015 following the change of name from the Department of Immigration and Citizenship to the Department of Immigration and Border Protection.  It is unfortunate that current Subclass 457 visa holders seeking information in relation to their visa conditions using the link provided in the Department’s approval notification are not automatically redirected to the appropriate page on the Department’s new website.  Had Ms Kung been proactive (she admits she was not, rather, she relied on her representative) and sought further information in relation to the conditions attached to her visa from the Department’s current website she would have been able to find some information on the new website in relation to her visa conditions: however, she would not have been able to find such information had she used the link referred to in her Subclass 457 visa approval notification. 

3. In the Tribunal’s opinion, it is unfortunate that full details in relation to the conditions attaching to a Subclass 457 visa were not set out in approval notifications issued in October 2014  (when Ms Kung’s Subclass 457 Visa was granted) consistent with details in the Department’s Booklet 9, Temporary Work (Skilled) Subclass 457 visa extracted below:

   “Condition 8107 requires that as a primary holder of a subclass 457 visa you must:

   ·             work in the occupation for which you were nominated

   ·             commence that work within 90 days of arrival in Australia

   ·obtain any registration or licensing necessary to perform your occupation in Australia

   ·work for the sponsor, or an associated entity of the sponsor, who nominated the position you are working in, and

   ·             not cease employment for a period of more than 90 consecutive days.

   You are considered to have ceased employment when either you or your employer gives notice of intention to cease employment and the date of the notice of intention to cease employment has passed.  If more than 90 consecutive days have passed since the date in the notice of intention to cease employment, you may be in breach of Condition 8107 and may have your visa cancelled.  In the event that you abandon your employment, or are absent without leave, you may be considered to have ceased employment.

   If your visa is about to cease, and you want to apply for another subclass 457 visa, you must lodge a new visa application.

   If you want to change employers while you still hold a valid 457 visa you do not need to apply for a new subclass 457 visa, however a nomination must be lodged and approved by your new sponsor before you commence working for the new sponsor.”

4. The Department’s information provision in relation to Subclass 457 visas was recently the subject of a specific recommendation in a Review on the visa subclass undertaken by an independent review panel in September 2014.[4]  The Tribunal notes that Ms Kung’s Subclass 457 visa approval notification was emailed just a month after publication of the report and that current notifications now include extensive information about Australian working conditions, employee’s rights, payslips, what’s not okay at work and the Fair Work Ombudsman.  Relevantly, such notifications now state that the Subclass 457 visa allows the holder ‘to change employers as long as they are approved as a standard business sponsor under the 457 program, and have an approved nomination with you identified as a nominee’.  It is the Tribunal’s opinion that that this is a significant improvement on the former notification which stated that the Subclass 457 visa holder merely had to ‘find another employer willing to nominate you’ without any reference to the need for the employer to be an approved sponsor and have a nomination approved that identifies the nominee.  In this case, Ms Kung said she found Bakers Delight Gordon and principal Mr Lin had indicated that his business was willing, and able, to sponsor her.  

   [4] Robust New Foundations – A streamlined, transparent and responsive system for the 457 visa programme September 2014, Recommendation 12 - Information provision.

5. Mr Lin from Bakers Delight Gordon told the Tribunal that the business was new to sponsoring Subclass 457 visa holders.  Accordingly, he engaged a registered migration agent to assist and it took some time before the sponsorship was approved and the nomination for Ms Kung’s position as Baker was also approved.  Initially, application was made for approval as a Pastrycook but that was refused on the basis of the role to be undertaken by her.  Mr Lin told the Tribunal that “at no time” did the agent tell him, or Ms Kung, that she should stop working until the nomination for her position as a Baker was approved.  

6. The Tribunal accepts the situation Ms Kung finds herself in arose, initially, because Sichuan Cuisines sold the business and her position was no longer required.  It observes that those circumstances are not the fault of Ms Kung.  However, she failed to familiarise herself fully with the conditions attached to her Subclass 457 visa, notwithstanding it is a temporary visa and permits her to work in Australia on certain conditions.  The Tribunal acknowledges that the issues identified in the September 2014 Review referred to above regarding a Subclass 457 visa holder’s difficulties in obtaining information from the Department’s website link in their approval notification in this regard.  In the circumstances, Ms Kung relied on her then representative, as did Mr Lin or Bakers Delight Gordon.  Both Mr Lin and Ms Kung indicated that they would be initiating a complaint to MARA regarding their representative’s failure to advise them appropriately about Ms Kung’s inability to work with Bakers Delight Gordon and the company’s inability to employ her until approval of the nomination.  The Tribunal finds that Ms Kung’s employment by Bakers Delight Gordon from 1 March 2015 to 7 December 2015 constitutes a breach of condition 8107(3)(a)(ii)(B) for just over 9 months.  That is not an insignificant period.

1. In relation to Ms Kung’s earlier Working Holiday visa, there is no evidence before the Tribunal indicating that she did not comply with conditions attached to that visa.

   Degree of hardship  

2. Ms Kung’s representative noted that if Subclass 457 visa cancellation is affirmed by the Tribunal she would be required to depart Australia to apply for a new Subclass 457 visa due to the fact that she currently holds a Bridging E visa with unrestricted work rights. Alternatively, as she has now married an Australian citizen, she may apply for onshore for a Partner visa. 

3. Asked about the impact on his business if Ms Kung returns to Hong Kong to apply for a new Subclass 457 visa Mr Lin told the Tribunal it is “very hard to find good Bakers in the local market” and he was “very grateful” when he found Ms Kung.  He added he “desperately needs” her in his business and is “willing to support her in every possible way”.  Mr Lin added that “without her support my business would greatly suffer by not having enough Bakers to cover all the shifts and my business won’t be able to meet its quotas. It will be a financial and human resource nightmare for me again”.  He confirmed he already works 50 – 60 hours per week in his business and that, even with his 4 staff complement, he is under stress as his other Baker is unable to take on any extra shifts.  He told the Tribunal that Ms Kung is “an extremely reliable, hard-working employee”. 

4. The Tribunal accepts Bakers Delight Gordon, with whom Ms Kung is already working, will suffer hardship if the Tribunal affirms the Department’s decision to cancel her Subclass 457 visa.  This is especially so having regard to the shifts that she works and the fact that the other Baker employed by the business is both old and suffers physical ailments such that he is unable to work additional hours during the week or over weekends.  As the Subclass 457 visa program exists to assist Australian employers fill skills gaps in their workforce, the Tribunal is satisfied that this hardship would be significant for Ms Kung’s new sponsor.

5. In addition, Ms Kung told the Tribunal about the limited financial circumstances of herself and her Australian citizen husband Mr Rose as well as the relationship she has with his daughter, 4 year old Sierra.  The Tribunal had the benefit of oral evidence from Mr Rose and Ms Kung regarding their genuine and ongoing relationship as well as the benefit of documentary evidence provided to the Tribunal.  The couple’s genuine spousal relationship was evident to the Tribunal during the course of the hearing.  They married on 20 February 2016.  Mr Rose told the Tribunal he is a panel beater and has been doing this work since leaving high school.

6. Ms Kung’s representative provided the Tribunal with a copy of the Federal Circuit Court of Australia’s Parenting Order dated 12 November 2015 with attached Family Report from Family Consultant, Mr Norman Goodsell.  Amongst other observations, the report relevantly notes that Mr Rose “does not enjoy a strong familial support network to assist him with parenting” Sierra and that he “relies strongly on active assistance from Ms Kung in support of his parenting strategies”.  This recognises a “tendency” on his part to be “too soft” with his daughter whereas Ms Kung is “stricter and sets more boundaries”.  Ms Kung “impressed” the Family Consultant with her “parenting knowledge and common sense” and he could “understand” why Mr Rose’s former partner, Sierra’s mother, “has confidence in her”.

7. The Tribunal accepts that Ms Kung plays a pivotal role in supporting her husband in parenting his daughter and that it would cause hardship, both to him and to his daughter, if Ms Kung is required to leave Australia to apply offshore for a Subclass 457 visa.  The Tribunal also accepts oral evidence by Ms Kung and Mr Rose regarding the significant costs in lodging a Partner visa application given the couple’s limited financial resources.  Ms Kung’s provided the Tribunal with a statement from Ms Kung after the hearing which, amongst other things, elaborates further on evidence regarding the couple’s financial circumstances.  The Tribunal has are considered Ms Kung’s evidence that she has lived in Australia since 2012 and, apart from her many friends here, her paramount emotional concerns are for her husband and her stepdaughter.

   The circumstances in which the ground for cancellation arose   

8. The circumstances giving rise to the Department’s cancellation of Ms Kung’s Subclass 457 visa on 29 October 2015 arose in the context of notice from Sichuan Cuisine that her employment ceased in mid-February 2015 as well as delayed sponsorship and nomination applications being made by Bakers Delight Gordon.  Although Ms Kung’s new employer’s sponsorship application was approved on the 17 July 2015, the Department had not yet approved the nomination of her position as Baker with Bakers Delight Gordon which was lodged on 17 September 2015.  That occurred on 7 December 2015.  .

9. As noted above, the delegate cancelled Ms Kung’s Subclass 457 visa on the basis that she had ceased employment with Sichuan Cuisine for a period of more than 90 days in breach of condition 8107(3)(b).  However, technically, she did not cease employment: rather, she continued her employment, albeit with a new employer.  In light of the fact that Ms Kung’s Subclass 457 visa was granted on the basis of being nominated to work in the position of Pastrycook with Sichuan Cuisine it is the view of the Tribunal that the more appropriate ground for cancellation is condition 8107(3)(b) because, following termination of her employment as a Pastrycook with Sichuan Cuisine, she immediately commenced work with Bakers Delight Gordon as a Baker despite there being no approved nomination for that position until 7 December 2015.  The delay in nomination approval was due to delays in lodgement of her new employer’s sponsorship and nomination applications.  These are employer initiated applications. 

10. Immigration policy indicates that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.  In this regard, the Tribunal observes that Ms Kung’s termination of employment by Sichuan Cuisine was beyond her control.  She immediately found a new employ willing to sponsor her.  The ground for cancellation considered more appropriate by the Tribunal arises from her working as a Baker with Bakers Delight Gordon for over 9 months without consent from the Department to do so.  Ms Kung told the Tribunal that her representative told her she had done everything she needed to do consistent with her visa conditions, in particular, find a new sponsor.  As noted above, she has informed the Tribunal that she is in the process of reporting her former agent’s misinformation to the MARA.  .

    Visa holder’s past and present behaviour towards Department

11. When the Department contacted Ms Kung on 18 September 2015 advising her of its intention to cancel her Subclass 457 visa she responded promptly on 25 September and provided statements from both her prospective approved sponsor Bakers Delight Gordon and her husband.  There is no other evidence before the Tribunal regarding Ms Kung’s past and present behaviour towards the Department. 

    Whether there would be consequential cancellations under s.140 of the Act

12. Ms Kung confirmed that there are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. Accordingly, this carries no weight in terms of factors considered by the Tribunal.

    Whether there are mandatory legal consequences to cancellation decision

13. The Tribunal finds that cancellation of Ms Kung’s Subclass 457 visa could result in her being unlawful if she does not leave Australia in the permitted time and thereby may be subject to being detained at the Villawood Detention Centre.  In the alternative, she may wish to pursue a Partner visa application on the basis of her marriage to Mr Rose.  This would involve the couple in some expense.    

    Whether obligations under international agreements would be breached

14. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Ms Kung’s Subclass 457 visa.

15. The Tribunal has taken into account all of the available evidence.  Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of not cancelling Ms Kung’s Subclass 457 visa outweighs that in favour of cancelling her visa.  For these reasons, the Tribunal concludes it should exercise its discretion not to cancel Ms Kung’s Subclass 457 visa. 

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Katie Malyon

    
    Member

    Annexure A – Extracts from the Migration Act 1958

    
    
    s.116 Power to cancel
    
    

    (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

    (aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

    (b)  its holder has not complied with a condition of the visa; or

    (c)  another person required to comply with a condition of the visa has not complied with that condition; or

    (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

    (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)  the health or safety of an individual or individuals; or

    (f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

    (fa)  in the case of a student visa:

    (i)  its holder is not, or is likely not to be, a genuine student; or

    (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

    (g)  a prescribed ground for cancelling a visa applies to the holder.
    
    

    (1AA)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
    
    

    (1AB)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

    (a)  incorrect information was given, by or on behalf of the person who holds the current visa, to:

    (i)  an officer; or

    (ii)  an authorised system; or

    (iii)  the Minister; or

    (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or

    (v)  any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

    (b)  the incorrect information was taken into account in, or in connection with, making:

    (i)  a decision that enabled the person to make a valid application for a visa; or

    (ii)  a decision to grant a visa to the person; and

    (c)  the giving of the incorrect information is not covered by Subdivision C.

    This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
    
    

    (1A)  The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
    
    

    (2)  The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.
    
    

    (3)  If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

    s.140 Cancellation of visa results in other cancellation
    
    

    (1)  If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
    
    

    (2)  If:

    (a)  a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

    (b)  another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

    the Minister may, without notice to the other person, cancel the other person's visa.
    
    

    (3)  If:

    (a)  a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and

    (b)  the person is a parent of another person; and

    (c)  the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

    the other visa is also cancelled.
    
    

    (4)  If:

    (a)  a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and

    (b)  the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;

    the cancellation under subsection (1), (2) or (3) is revoked.

    oOOo
    Annexure B – Extracts from the Migration Regulations 1994

    Schedule 8  - Visa Conditions 
    
    

    8107 (1)  If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)  cease to be employed by the employer in relation to which the visa was granted; or

    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted.
    
    

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or

    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)  engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted.
    
    

    (3)  If the visa is , or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)  the holder:

    (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)  unless the circumstances in subclause (3A) apply:

    (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor; and

    (aa)  the holder must commence that work within 90 days after the holder's arrival in Australia; and

    (b)  if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder must:

    (i)  hold the licence, registration or membership; and

    (ii)  comply with each condition or requirement to which the licence, registration or membership is subject.
    
    

    (3A)  For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)  if the nomination is made on or after 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
    
    

    (3B)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and

    (b)  if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days.

    
    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or

    (b)  a Subclass 402 (Training and Research) visa; or

    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.

    8501  The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

    oOOo