DEVI (Migration)

[2017] AATA 147

DEVI (Migration) [2017] AATA 147 (27 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Trishana Devi
Mr Malkiat Singh
Mr Sahibdeep Singh Kaler
Miss Gursimran Kaler

CASE NUMBER:  1614907

DIBP REFERENCE(S):  BCC2016/1612283

MEMBER:Katie Malyon

DATE:27 January 2017

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 27 January 2017 at 10:01 am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – s 116 – Condition 8107 – Ceased employment with sponsor – Sponsor went into liquidation –Work rights and further employment – New sponsor’s nomination pending

LEGISLATION

Migration Act 1958, s 116, 140, 348, 359
Migration Regulations 1994, Schedule 2 cl 457.223, Schedule 8

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Re Drake v MIEA (No 2) (1979) 2 ALD 634
Qiao v MIAC [2008] FMCA 38
Hneidi v MIAC [2010] FCAFC 20

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 September 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of the first named applicant, Ms Trishana Devi, 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 Devi’s visa under s.116(1)(b) of the Act on the basis that she did not comply with condition 8107 that was imposed on her Subclass 457 visa because she had ceased employment with her sponsor, Varpreet Batra Pty Ltd (Varpreet), for more than 90 days.  A copy of the delegate’s decision was provided to the Tribunal.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether Ms Devi’s visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to Ms Devi. The second, third and fourth named applicants are Ms Devi’s family members. Her family’s visas were automatically cancelled as a consequence of cancellation of Ms Devi’s visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of Ms Devi’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellations under s.140(1) of the Act, the Tribunal has no jurisdiction with respect to them.

4. Ms Devi appeared before the Tribunal on 29 November 2016 to give evidence and present arguments.  She was represented in relation to the review by her registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Background

7. Ms Devi is a 31 year old national of India.  She was granted a Subclass 457 visa on 22 October 2014 for a period of 4 years on the basis of an approved nomination in the occupation of Events Planner with her sponsor, Varpreet.  Initially, she worked at Varpreet’s Palki Indian Restaurant (Palki) in Wellington, regional New South Wales.  Ms Devi’s representative provided the Tribunal with a copy notification to the Department’s Sponsor Monitoring Unit dated 9 December 2015 from a Director of Varpreet that it had changed the address and business name of its restaurant.  It now operated the Harbour Indian Tandoori Restaurant at Millers Point in Sydney’s CBD. 

8. However, just 3 months later, the Department established that Varpreet had gone into liquidation effective 16 March 2016 and had ceased trading.   As indicated in the delegate’s decision (a copy of which was provided to the Tribunal by Ms Devi’s representative), on 12 August 2016 the Department issued Ms Devi with a notice of intention to consider cancellation (NOICC) of her Subclass 457 visa under s.116 of the Act on the basis that she may have breached condition 8107 as more than 90 consecutive days had passed since she was deemed to ceased employment with Varpreet.

9. Ms Devi responded to the NOICC on 18 August 2016. In her response, she indicated that she only came to know about Varpreet’s liquidation (on 16 March 2016) after the 90 day time period permitted by the Regulations to secure another job and, the moment she found out about Varpreet going into liquidation, she started looking to work at other places. She has since secured an offer of employment in the position of Restaurant Manager. Ms Devi provided evidence of a nomination made by Nanotek Technologies Pty Ltd (Nanotek) lodged on 15 August 2016, that is, 3 days after she received the NOICC. 

10. At the hearing, Ms Devi told the Tribunal that Nanotek is the company that actually operates the Harbour Indian Tandoori Restaurant in Millers Point, not Varpreet as she had initially thought.  She also told the Tribunal that she had no idea Varpreet had gone into liquidation and was totally shocked to hear this from the Department because not only did she continue to work at the Harbour Indian Tandoori Restaurant in Millers Point but she also continued to be paid.  A copy of the nomination application lodged by Nanotek with Department on 15 August 2016 in respect of the position of Restaurant Manager offered to Ms Devi was provided to the Tribunal.  After the hearing, Ms Devi provided a copy of her PAYG Summary for the year ended 30 June 2016 confirming receipt of $42,307 from Varpreet.  She told the Tribunal at the hearing that it was the only PAYG Summary that she received.  The Tribunal notes monies received by Ms Devi fall well below the Temporary Skilled Migration Income Threshold of $53,900 per annum for Subclass 457 visa holders.[1]   

    [1] IMMI 13/028 Specification of income threshold and annual earnings (regs 2.72(10)(cc), 2.79(1A)(b) and 2.72(10AB)

11. Consistent with the provisions in s.359AA of the Act, the Tribunal put to Ms Devi during the course of hearing information that it had become aware Nanotek’s sponsorship approval had been cancelled and the company was the subject of a 2 year bar on sponsoring further Subclass 457 visa applicants. Ms Devi told the Tribunal that she had spoken with one of the Directors of Nanotek the week before the hearing and, based on that conversation, she decided to look elsewhere for work and has since been offered a position with a company that operates a restaurant called Vege Nation in Westpoint shopping centre in Blacktown. 

12. After the hearing, Ms Devi’s representative forwarded to the Tribunal evidence of lodgement of a sponsorship application by GH Associates Pty Ltd (GHA) and a nomination application by GHA in respect of Ms Devi.  Decisions on both the sponsorship and nomination applications by GHA remain pending. 

    Does the ground for cancellation exist?

13. 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 Devi’s Subclass 457 visa.

14. Since Ms Devi’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 Devi 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.

15. Ms Devi’s Subclass 457 visa was granted on 22 October 2014 on the basis of being nominated by Varpreet in the occupation of Event Planner.  She told Tribunal that she now understands she stopped working with her sponsor on 16 March 2016 when Varpreet went into liquidation and that the business of the Harbour Indian Tandoori Restaurant in Millers Point was then carried on by Nanotek.  The former Director of Varpreet is also a Director of Nanotek.  Ms Devi acknowledged at the hearing she is now aware that Varpreet ceased operating in mid-March 2016 and that, accordingly, in breach of condition 8107(3)(b) more than 90 consecutive days have passed since her employment with her sponsor Varpreet ceased.  She also acknowledged at the hearing that she is now aware she worked with Nanotek since mid-March 2016 in breach of condition 8107(3)(a)(ii)(B) and that she also breached condition 8107(3)(a)(i) by working in the occupation of Restaurant Manager when the nomination listed in the most recently approved nomination is that of Event Planner.  In the circumstances, the Tribunal finds that Ms Devi has not complied with condition 8107 attached to her Subclass 457 visa. 

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As 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.

    Consideration of discretion

17. 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 the applicant’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’.

18. In exercising its power to cancel a 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]

19. Ms Devi told the Tribunal she came to Australia in April 2009 to study an Advanced Diploma of Hospitality and a Diploma of Management.  Following her studies she was happy to secure a position working with Varpreet in Wellington at Palki.  When Varpreet moved its business to Sydney she was pleased to take on the role there as Restaurant Manager.  She said she was working with Varpreet’s registered migration agent to progress a new nomination for her new role.  Ms Devi added that, it appears with the benefit of hindsight, that agent did not progress the nomination application because money was not paid by Varpreet to the agent.  However, since Ms Devi continued to be paid she said she did not think there were any concerns and it was not until she received the NOICC that she became aware of Varpreet’s financial position, its liquidation and why a new nomination application had been lodged by Nanotek although she paid little attention to this at the time.   Following her recent discussion with a Director of Nanotek, Ms Devi said she immediately began to look for work elsewhere and has been successful in securing an offer of employment with GHA in the role of Restaurant Manager at Vege Nation in Blacktown. 

20. In the context of the purpose of Ms Devi’s travel to and stay in Australia, the Tribunal has considered that GHA’s sponsorship and nomination applications are still pending.  The Tribunal gives weight to this consideration in favour of not cancelling her Subclass 457 visa.

21. The Tribunal has also considered that Ms Devi’s employment with her approved sponsor Varpreet ceased more than 12 months ago, she worked in an occupation (Restaurant Manager) other than the most recently approved nominated occupation of Event Planner and she worked for a new company, Nanotek, albeit she was not aware of the change of business structure.  The Tribunal gives weight to this consideration in favour of cancelling the visa.

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

22. Ms Devi told the Tribunal that she has been compliant with all conditions attached to her former Student visas.  The Tribunal discussed visa condition 8107 with Ms Devi.  She acknowledged that she now understands that she has not worked for Varpreet since 16 March 2016, that is, more than 90 days.  She also acknowledges she should not have changed occupations until a new nomination was approved.  Since her Subclass 457 visa was cancelled on 9 September 2016, Ms Devi has secured a Bridging E visa with work rights.  She told the Tribunal that, to ensure compliance with her visa conditions, she is now aware she could only start working with GHA (or any other potential sponsor) after the Department had removed condition 8101 from her Bridging E visa.

23. The Tribunal is satisfied that its consideration of the extent of Ms Devi’s compliance with visa conditions, now and on previous occasions, is not a reason to make a decision not to cancel her Subclass 457 visa.

    Degree of hardship 

24. The Tribunal has also considered the hardship that may be caused if Ms Devi’s Subclass 457 visa is cancelled.  She told the Tribunal that she and her husband came to Australia to make a new life themselves here.  Her children have been born here and have studied here.  As a family, Ms Devi’s family see their future in Australia.  She told the Tribunal her husband has a good job at Woolworths.  The couple have family back in India. 

25. While the Tribunal accepts that leaving Australia would involve some adjustment for Ms Devi and her family it is nonetheless of the view that any difficulties would not be significant given the study she has undertaken in Australia and the employment experience Ms Devi and her husband have gained here. 

26. The Tribunal gives little weight to these considerations in favour of not cancelling the visa.

    The circumstances in which the ground for cancellation arose  

27. The circumstances giving rise to the Department’s cancellation of Ms Devi’s Subclass 457 visa on 9 September 2016 arose from Varpreet’s liquidation effective 16 March 2016.  As noted above, Ms Devi explained she was totally unaware of the financial circumstances of her sponsor.  It was only when she received the NOICC that she became aware of the true situation. 

28. Ms Devi told Tribunal that she had been working with Varpreet’s representative to transfer her sponsorship to a new company set up by a Director of Varpreet because of the changed role offered to her and the change of location from Wellington in rural New South Wales to Sydney’s CBD.  She now understands it was necessary because Varpreet went into liquidation.  However, the Director of Varpreet did not explain the situation to staff and the company’s representative failed to progress lodgement of documentation with the Department because, it seems, Varpreet did not pay the representative.  Ms Devi said she did not consider contacting the Department or engaging another representative because she relied on the Director’s representations that everything was under control and that she need not worry about anything.  It was not until the Department cancelled her Subclass 457 visa on 9 September 2016 that Ms Devi independently engaged the services of a representative to assist her.  Although a new nomination requires initiation by the foreign national’s employer it is, in the opinion of the Tribunal, incumbent on a sponsored employee be aware of their rights and obligations under both employment law and immigration law. 

29. The Tribunal gives weight to these considerations in favour of cancelling the visa.

    Visa holder’s past and present behaviour towards Department

30. Information held in the Department’s file indicates that Ms Devi has been co-operative with the Department.  She responded to the NOICC issued by the Department on 12 August 2016 and confirmed that Nanotek had already lodged a nomination application in respect of the position of Restaurant Manager for her.  Within 3 days of becoming aware of Varpreet’s liquidation she was able to inform the Department that a new nomination had already been lodged by Nanotek.

31. The Tribunal gives little weight to consideration of Ms Devi’s past and present behaviour towards the Department in not cancelling her visa.

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

32. As noted above, Ms Devi told the Tribunal that her husband (the second named applicant) arrived in Australia in 2009 and their 2 children have been born here. 

33. It is the Tribunal’s opinion that if Ms Devi’s Subclass 457 visa is cancelled her family unit would remain together.  Ms Devi confirmed for the Tribunal that she and her husband have family in India.  It is also the Tribunal’s opinion that, if necessary, such family members would be able to assist with her immediate family’s readjustment to life back in India. 

34. The Tribunal gives little weight to consideration of the consequential cancellation of Ms Devi’s family’s Subclass 457 visas under s.140 of the Act in not cancelling her visa.

    Whether there are mandatory legal consequences to a cancellation decision

35. The Tribunal finds that affirming cancellation of Ms Devi’s Subclass 457 visa could result in her and her family being unlawful if they do not leave Australia in the permitted time and they may thereby be subject to being detained at a Detention Centre.  The Tribunal gives little weight to this consideration in not cancelling the visa.

36. Ms Devi currently holds a Bridging E visa with work rights allowing her to remain lawfully in Australia and, should she wish to apply for another visa from overseas, she will not be subject to a penalty under Public Interest Criterion (PIC) 4013.  Furthermore, as she obtained her Bridging E visa on 19 September 2016 (that is, within 10 days of cancellation of her Subclass 457 visa on 9 September 2016) she will not be subject to a risk factor under PIC 4014.

37. The Tribunal gives no weight to this consideration in not cancelling the visa.

    Whether obligations under international agreements would be breached

38. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Ms Devi’s Subclass 457 visa.  Neither Ms Devi nor her representative made any submissions in this regard. 

39. The Tribunal gives no weight to this consideration in not cancelling the visa.

    Other considerations

40. The Tribunal has considered Ms Devi’s evidence that she arrived in Australia in 2009 and, since then, she has obtained qualifications in both Hospitality and Management.  She told the Tribunal that she plans to open her own restaurant one day.  It has also considered that she has been nominated by GHA and that the Department’s decision on GHA’s sponsorship and nomination application are still pending.  It is uncertain not only if and when the sponsorship application lodged by GHA will be approved but also if and when Ms Devi will become the subject of an approved business nomination.    

1. Whilst it would be open to Ms Devi and her family to return to India and await the outcome of GHA’s sponsorship and nomination applications and, further, Ms Devi would not be the subject of a PIC 4014 bar on applying offshore for a new Subclass 457 visa for 3 years (because she was granted her Bridging E visa within 28 days of cancellation of her Subclass 457 visa), the Tribunal accepts the cost of returning to India with her family would be a considerable expense. 

2. The Tribunal gives weight to these considerations in not cancelling the visa.

   Conclusion

3. 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 Devi’s Subclass 457 visa outweighs that in favour of cancelling her visa.  For these reasons, the Tribunal has formed the view that this is an appropriate case to exercise its discretion and not cancel Ms Devi’s Subclass 457 visa. 

   DECISION

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

5. The Tribunal has no jurisdiction with respect to the other applicants.

   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