LIN (Migration)

LIN (Migration) [2017] AATA 2512 (6 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kerui Lin
Mrs Yuzhen He
Mr Hao Lin
CASE NUMBER:  1706051
DIBP REFERENCE(S):  BCC2017/340849
MEMBER:Katie Malyon
DATE:6 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision 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 06 October 2017 at 1:59 pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work ((Skilled)) – Sponsor had ceased trading – Sponsor in liquidation – Not an approved sponsor – Did not commence work with sponsor – No new nomination lodged
LEGISLATION
Migration Act 1958, ss 116(1)(aa), 140(1), 348, 359(2), 359(A)
Migration Regulations 1994, r 2.72, Schedule 2, cl 457.223(4), Schedule 8, Condition 8107
CASES
Hneidi v MIAC [2010] FCAFC20
Qiao v MIAC [2008] FMCA 380
Rani & Ors MIMA (1997) 80 FCR 379
Re Drake v MIEA (No 2) (1979) 2 AC 634
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 March 2017 to cancel the Subclass 457 Temporary Business Entry (Class UC) visa of the first named applicant, Mr Kerui Lin, under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled Mr Lin’s visa under s.116(1)(aa) of the Act on the basis that the decision to grant him a Subclass 457 visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist. As indicated in the delegate’s decision, a copy of which was provided to the Tribunal, this was because:
·the standard business sponsor which nominated Mr Lin in the most recently approved nomination, Lis-Con Concrete Constructions Pty Ltd (LisCon), had its nomination for the position of Bricklayer in respect of Mr Lin approved on 23 March 2016;
·Mr Lin’s Subclass 457 visa was also approved on 23 March 2016;
·on 12 January 2017, the Department received written notice from Jones Partners, Chartered Accountants specialising in Insolvency and Business Recovery (Jones Partners), that it had been appointed Liquidator of LisCon on 22 February 2016 pursuant to an Order of the Supreme Court of New South Wales. The written notice from Jones Partners also confirmed that LisCon had ceased trading prior to the appointment of Jones Partners as Liquidator; and,
·as LisCon had ceased trading at the time the nomination was approved, LisCon could not be considered to be an approved business sponsor for the purposes of r.2.72 of the Migration Regulations 1994 (the Regulations). One of the requirements for being an approved business sponsor is that the business must be lawfully operating. Because LisCon was not lawfully operating, the nomination was not made by an approved business sponsor and, as a result, the circumstances that enabled Mr Lin to meet criteria for grant of the visa did not exist at the time of the decision to grant his Subclass 457 visa.
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 Mr Lin, the first named applicant. The visas of the second named applicant, Mr Lin’s wife Yuzhen He, and the third named applicant, his son Hao Lin, were automatically cancelled as a consequence of cancellation of Mr Lin’s Subclass 457 visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the Subclass 457 visas of both Ms He and Mr Lin’s son self-executing on the cancellation of Mr Lin’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 Ms He and Mr Lin’s son, Hao Lin.
Mr Lin appeared before the Tribunal on 4 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s Subclass 457 visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)(aa) 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. The provisions of s.116 of the Act and an extract from Schedule 8 of the Regulations in relation to visa condition 8107 which attached to Mr Lin’s Subclass 457 visa are set out in the Annexures to this decision.
Background
Mr Lin is a 45 year old from Fuqing City in China. His Subclass 457 visa was granted on 23 March 2016 for a period of 4 years on the basis of a nomination in the occupation of Bricklayer with standard business sponsor LisCon.
As indicated in the delegate’s decision, on 9 March 2017 the Department issued Mr Lin a notice of intention to consider cancellation (NOICC) of his Subclass 457 visa. It did so on the basis that it had received written notice from Jones Partners that the firm had been appointed Liquidator of LisCon on 22 February 2016 pursuant to an Order of the Supreme Court of New South Wales and that LisCon had ceased trading prior to the firm’s appointment as Liquidator. The delegate stated in the NOICC that, in the circumstances, LisCon appears to have ceased trading on or before 22 February 2016. However, a month later on 23 March 2016, LisCon’s nomination was approved in respect of Mr Lin and he was granted a Subclass 457 visa. One of the requirements of being an approved sponsor is that the sponsor’s business must be lawfully operating and, given the sponsor had ceased trading at the time the nomination was approved, LisCon could not be considered to be an approved sponsor. Consequently, the nomination was not made by an approved business sponsor and, as a result, the circumstances which enabled Mr Lin to meet criteria for grant of his visa did not exist at the time of the decision to grant his Subclass 457 visa.
Mr Lin did not respond to the NOICC. The delegate cancelled his Subclass 457 visa on the basis that 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.
On 31 July 2017, the Tribunal wrote to Mr Lin pursuant to s.359A and s.359(2) of the Act inviting his comments or response to information which the Tribunal considers would, subject to his comments or response, be the reason or part of the reason for affirming the delegate’s decision as well as provide information. The letter set out details of the date of LisCon’s liquidation. It also referred to a possible breach of visa condition 8107(3) attached to Mr Lin’s Subclass 457 visa which required him to work only for his sponsor (or an associated entity), only in the occupation listed in most recently approved nomination and, as the visa was granted when he was outside Australia, he must have commenced work with his sponsor within 90 days of arrival. The Tribunal received a reply to its letter on 14 August 2017 from a solicitor who claims he was instructed by Mr Lin to advise the Tribunal that, when the Subclass 457 visas of Mr Lin and his family “were granted in China, they have no idea what is going on about the sponsor company. No one advised that the sponsor were (sic) to liquidate”. No evidence of the appointment by Mr Lin of the representative was provided to the Tribunal.
Does the ground for cancellation exist?
The Tribunal has independently established from the website of the Australian Securities and Investment Commission (ASIC) that LisCon was the subject of a Liquidation Order issued by the Supreme Court of New South Wales on 22 February 2016. As noted in the delegate’s decision, the Court appointed Liquidator Jones Partners informed the Department on 12 January 2017 that LisCon had ceased trading prior to the firm’s appointment as Liquidator.
ASIC’s website states that liquidation is the orderly winding up of a company’s affairs.[1] A court liquidation starts as a result of a Court Order, made after an application to the court, typically by a creditor. The purpose of liquidation of an insolvent company is to have an independent and suitably qualified person, the liquidator – in this case, Jones Partners - take control of LisCon so that its affairs can be wound up in an orderly and fair way for the benefit of creditors. In most cases, the liquidation of a company terminates the employment of all employees.
[1] >
Based on available evidence, the Tribunal finds that LisCon had ceased trading at the time the nomination in respect of Mr Lin was approved on 23 March 2016.
One of the requirements for being an approved sponsor is that the business must be lawfully operating. Given the LisCon had ceased trading at the time its nomination in respect of Mr Lin was approved, LisCon could no longer be considered to be an approved sponsor. The Tribunal finds that the nomination made by LisCon in respect of Mr Lin was not made by an approved sponsor and, accordingly, the circumstances that enabled Mr Lin to meet criteria for grant of a Subclass 457 visa did not exist at the time of the Department’s decision to grant him the visa on 23 March 2016. Mr Lin acknowledged that the ground for cancellation was made out.
Having regard to evidence before the Tribunal and the findings referred to above, the Tribunal is satisfied that a fact or circumstance leading to grant of Mr Lin’s Subclass 457 visa on 23 March 2016 no longer existed: his sponsor had gone into liquidation on 22 February 2016 and was no longer actively operating. For these reasons, the Tribunal is satisfied that the ground of cancellation of Mr Lin’s visa under s.116(1)(aa) of the Act is made out. 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
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 Mr Lin’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’.
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 matter) 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] Hneidi v MIAC [2010] FCAFC 20, Spender, Emmett and Jaocobson JJ at [34]
Mr Lin was granted his Subclass 457 visa for a period of 4 years for the purpose of being able to fill a skills shortage in the occupation of Bricklayer and work in Australia for an approved sponsor. As Jones Partners was appointed Liquidator of LisCon on 22 February 2016 pursuant to an Order of the Supreme Court of New South Wales and it advised the Department that LisCon had ceased trading before that date, it is clear that the purpose for Mr Lin’s travel to and stay in Australia did not exist from at least 22 February 2016. The Tribunal has independently confirmed LisCon was placed in liquidation on that date.
At the hearing, Mr Lin told the Tribunal that he was sponsored on a Subclass 457 visa by LisCon and ‘did not know’ LisCon had gone into liquidation ‘when his Subclass 457 visa was granted’. Further, he thinks ‘the Department should share some of the responsibility for allowing his family’ and him to arrive in Australia in these circumstances as ‘he has no employer’. The Tribunal clarified that the Department was not aware of the liquidation of LisCon until mid-January 2017 and he would have been aware of it not long after his arrival. Asked whether, upon arriving in Australia, he approached the Department for advice regarding his visa situation in light of the fact that his sponsor was not operating, Mr Lin responded ‘no’.
Mr Lin told the Tribunal that, since arriving in Australia on 1 April 2016, he has worked on a casual basis 4 – 5 days per week as a Gyprocker for a man by the name of Mr Chen. When questioned further, he said did not know the name of Mr Chen’s business. Asked for evidence of payment of wages or salary, Mr Lin told the Tribunal that he was always paid in cash. Visa condition 8107(3)(b) allows 60 days for a primary Subclass 457 visa holder to find an alternate employer to sponsor them if they cease to work with the sponsor who nominated them. Asked whether he had tried to find another business (such as that of Mr Chen) to take over sponsorship of his Subclass 457 visa Mr Lin told the Tribunal he ‘did try and made a number of phone calls but the problem’ was his salary. In this regard, the Tribunal notes that Departmental records indicate Mr Lin was to be paid $96,000 per annum by LisCon for his work as a Bricklayer.
Having regard to the fact that LisCon was placed in liquidation prior to Mr Lin’s arrival in Australia, the Tribunal is satisfied that he has not worked with LisCon. The Tribunal’s review of Departmental records confirms that no new nomination has been lodged by another sponsor in relation to Mr Lin. Accordingly, the Tribunal finds that the purpose of Mr Lin’s travel to and stay in Australia came to an end 90 days after his arrival in Australia. Mr Lin concurred with the Tribunal’s observation that it appeared the purpose of his travel to and stay in Australia no longer existed.
The Tribunal gives weight to these considerations in favour of cancelling the visa.
Extent of compliance with visa conditions, now and on previous occasions
Mr Lin’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations: accordingly, visa condition 8107(3) is applicable to his visa. This requires Mr Lin to work only in the occupation listed in the most recently approved nomination in relation to him (Bricklayer) and only in the business of his sponsor, or an associated entity. After arriving in Australia he was required to commence work with his sponsor within 90 days. In addition, if he ceases employment, the period during which he ceases employment must not exceed 60 consecutive days. There is an exception which includes certain specified occupations not applicable in this case.
As noted above, Mr Lin told the Tribunal that he has been working on a casual basis as a Gyprocker since arriving in Australia on 1 April 2016. Since his sponsor ceased trading on or before 22 February 2016 it is evident that Mr Lin has not been employed by his sponsor. No evidence has been provided to contradict this. Mr Lin initially told the Tribunal that he did not know his sponsor had ‘become bankrupt’ until his Subclass 457 visa was cancelled in mid-March 2017 when his ‘representative checked’. He confirmed that he did not attempt to contact anyone from LisCon upon his arrival to start work with the company. When asked why he did not contact anyone from LisCon, Mr Lin told the Tribunal that he ‘doesn’t know English’ so he ‘did not know who to contact’. Questioned whether he contacted his agent in China in relation to starting work with LisCon, he said that he ‘heard later about the company going bankrupt’ and then said he heard about it ‘2 - 3 months after arriving’. The Tribunal put to Mr Lin his inconsistent evidence about previously hearing that the company had gone bankrupt 2 - 3 months after arriving and his earlier oral evidence that he did not know about this until his lawyer checked in mid-March 2017. He replied ‘that’s how it was’: he heard the company had gone bankrupt 2 - 3 months after arriving and then his lawyer checked in mid-March 2017.
Based on evidence Mr Lin has not worked only in the occupation listed in the most recently approved nomination and not with his sponsor, LisCon. Further, after arriving in Australia, he did not commence work with LisCon within 90 days as the company was not operating. In the circumstances, the Tribunal finds that Mr Lin has not complied with condition 8107(3) attached to his Subclass 457 visa.
The Tribunal gives weight to this consideration in favour of cancelling the visa.
In the context of discussing Mr Lin’s work in Australia the Tribunal noted that Departmental records confirm he currently holds a Bridging E visa with work rights. Mr Lin told the Tribunal he has not worked in Australia since his Subclass 457 visa was cancelled on 23 March 2017 and, further, he was unaware that he had work rights. He added he had not received a letter to that effect from the Department. Mr Lin confirmed for the Tribunal that his representative accompanied him to the Department’s offices to assist him make application for a Bridging E visa which included a request to remove visa condition 8101 (no work). The Tribunal observed that Departmental records confirm he has had unrestricted work rights since 7 July 2017. It provided Mr Lin with details of the Office of Migration Agents Registration Authority where he may wish to lodge a complaint regarding his representative’s alleged failure to communicate to him details of his full work rights since 7 July 2017.
The circumstances in which the ground for cancellation arose
The circumstances giving rise to the Department’s cancellation of Mr Lin’s Subclass 457 visa on 23 March 2017 arose from the Department becoming aware that a Liquidator had been appointed to his sponsor LisCon on 22 February 2016, and that it had ceased to operate before then.
Mr Lin told the Tribunal that he borrowed extensively to come to Australia. He said he was introduced by a private agent in China to the opportunity for sponsorship by LisCon. He does not know the agent’s name.
The Tribunal accepts that the circumstances in which the ground to cancellation arose were, essentially, beyond Mr Lin’s control. A Subclass 457 visa is a temporary visa allowing skilled foreign nationals to fill vacancies to work in Australia consistent with conditions attached to their visa: it is a temporary visa for a specific purpose which, in Mr Lin’s case, ceased before his arrival. In the opinion of the Tribunal, it is incumbent upon all visa holders to be familiar with the conditions attached to their visa and their work rights in Australia. Accordingly, it would have been open for Mr Lin, upon his arrival in Australia and finding that LisCon was not operating, to seek a new employer to take over sponsorship of his Subclass 457 visa, or simply return to China.
The Tribunal gives weight to these considerations in favour of cancelling the visa.
Visa holder’s past and present behaviour towards Department (and the Tribunal)
As noted in the delegate’s decision, Mr Lin did not respond to the NOICC issued by the Department on 9 March 2017. Mr Lin told the Tribunal that he did not know how to respond to the NOICC because he does ‘not speak English’ and ‘it’s useless’ because he did ‘not have an employer’ and ‘has not been paying tax’.

The Tribunal asked whether, when he arrived in Australia and was not able to start work immediately with his sponsor (because it had a ready ceased operations), he contacted the Department to seek advice regarding the visa situation for himself and his family. Mr Lin said he did not because he does not know how to speak English. The Tribunal put to Mr Lin that it appeared visa arrangements to facilitate his arrival in Australia may have been a scam. He denied this.
The Tribunal gives weight to Mr Lin’s past and present behaviour towards the Department in favour of cancelling the visa.
Whether there would be consequential cancellations under s.140 of the Act
Cancellation of Mr Lin’s Subclass 457 visa has also lead to cancellation of the visas of his wife and 16 year old son, Hao Lin. Mr Lin told the Tribunal that his son is attending Eastwood Public School. In response to the Tribunal’s question regarding the impact of the cancellation on his family Mr Lin responded with the question that if his ‘son cannot attend school what could he do and how could he go into the community?’. Mr Lin made no comments about his wife, apart from noting that she is in Australia with him and that she has not worked in Australia.
The Tribunal gives little weight to consideration of Mr Lin’s family’s consequential visa cancellation under s.140 of the Act in not cancelling Mr Lin’s visa.
Degree of hardship
The Tribunal has also considered the hardship that may be caused to Mr Lin and his family if Mr Lin’s Subclass 457 visa is cancelled. As noted above, Mr Lin observed that his son is attending high school in Sydney and, ‘when he was in China, his study was good’. Mr Lin said he does not know how his son ‘will survive’ (if the family returns to China) and opined that the ‘impact would be big’. Asked to explain further and tell the Tribunal more, Mr Lin said he did not really know how to answer the Tribunal’s question.
While the Tribunal accepts that leaving Australia would involve some adjustment for Mr Lin and his family it is nonetheless of the view that any difficulties would not be significant. This is especially so as Mr Lin told the Tribunal that this 20 year old daughter remains in China.
The Tribunal gives little weight to these considerations in favour of not cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
The Tribunal finds that affirming the cancellation of Mr Lin’s Subclass 457 visa would result in him being unlawful if he does not leave Australia in the permitted time such that he and his family may thereby be subject to being detained at a Detention Centre. The Tribunal gives little weight to this consideration in not cancelling the visa.
Mr Lin currently holds a Bridging E visa with unrestricted work rights. He applied for his Bridging E visa 10 weeks after cancellation of his Subclass 457 visa. Accordingly, if he wishes to apply for another Subclass 457 visa from overseas, he will be subject to a risk factor under Public Interest Criteria 4014. The Tribunal gives no weight to this consideration in not cancelling the visa.
Whether obligations under international agreements would be breached
There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Lin’s Subclass 457 visa. Asked for his comments, Mr Lin said he nothing to say and that he understood the Tribunal is question in this regard.
The Tribunal gives no weight to this consideration in not cancelling the visa.
Conclusion
Having considered all of the circumstances in this case and the evidence before it, the Tribunal is satisfied that the evidence in favour of cancelling Mr Lin’s Subclass 457 visa strongly outweighs that in favour of not cancelling his visa. For the reasons outlined above, the Tribunal has formed the view that this is not an appropriate case to exercise its discretion and set aside cancellation of Mr Lin’s Subclass 457 visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
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.
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

[2017] AATA 2512

6 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Appeal