Singh (Migration)

Singh (Migration) [2017] AATA 1344 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pardeep Singh
CASE NUMBER:  1700881
DIBP REFERENCE(S):  BCC2016/3841105
MEMBER:Katie Malyon
DATE:25 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 July 2017 at 10:22 am

CATCHWORDS
Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Visa holder must work only in the occupation listed in the most recently approved nomination – Period during which the holder ceases employment must not exceed 90 consecutive days

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA

Migration Regulations 1994, Schedule 2, cl 457.223, Schedule 8, 8107

CASES
Re Drake v MIEA (No 2) (1979) 2 ALD 634;
Qiao v MIAC [2008] FMCA 380
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 January 2017 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the review applicant, Mr Pradeep Singh, under s.116 of the Migration Act 1958 (the Act). Extracts from the Act and the Migration Regulations 1994 (the Regulations) relevant to Mr Singh’s case are set out in the Annexures to this decision.

2. The delegate cancelled Mr Singh’s visa under s.116(1)(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 visa because he had ceased employment with his sponsor, Tamarin Indian Tandoori Restaurant Pty Ltd (Tamarin) following the appointment of a Liquidator pursuant to an Order of the Supreme Court of NSW made 13 August 2015. The issue in the present case is whether that ground for cancellation was made out t the time of the delegate’s decision and, if so, whether Mr Singh’s visa should be cancelled.

3. Mr Singh appeared before the Tribunal on 18 July 2017 to give evidence and present arguments.

4. Although an interpreter in the Hindi and English languages had been arranged for the hearing, Mr Singh told the Tribunal that he did not need the services of an interpreter having attended high school in Australia for 6 months as well as completing a Diploma of Management, an Advanced Diploma of Accounting and a Diploma of Human Resource Management since arriving in April 2009. He said he also commenced a Bachelor of Commerce but did not complete that course. Furthermore, prior to arriving in Australia, Mr Singh said he had lived in the Philippines with his mother where he attended an English-speaking school for 5 – 6 years. In light of Mr Singh’s competence in English he dispensed with the services of the interpreter.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

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. Mr Singh is a 26 year old national of India. He was granted a Subclass 457 visa on 1 December 2014 on the basis of an approved nomination in the occupation of Cafe or Restaurant Manager with his sponsor, Tamarin, which operated the Tamarin Restaurant in Main Street, Blacktown.

8. As indicated in the delegate’s decision, a copy of which was provided to the Tribunal, a Liquidator was appointed to Tamarin on the 13 August 2015. On 19 December 2016, the Department issued Mr Singh a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa under s.116 of the Act on the basis that he may have breached visa condition 8107 as it appears he had ceased employment with Tamarin for more than 90 days owing to the fact that the company had been placed in liquidation following a Court Order due to its insolvency.

9. Mr Singh responded to the NOICC on 5 January 2017. The delegate’s decision states Mr Singh indicated in his response that the first time he became aware of Tamarin’s insolvency was when he received the NOICC from the Department. He said that, prior to receiving the NOICC, he reported for work on time and was never made aware of any changes in Tamarin, its ownership or its financial situation. Mr Singh added that the signage and restaurant markings always indicated that it was the same restaurant that had nominated him for a Subclass 457 visa.

As noted on the website of the Australian Securities Investment Commission (ASIC), 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 of the company. The purpose of liquidation of an insolvent company is to have an independent and suitably qualified person (the Liquidator) take control of the company 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. However, a Liquidator may continue to trade the business for a short period to assist in the winding up.
[1] the ground for cancellation exist?
1. A visa may be cancelled under s.116(1)(b) of the Act if the decision maker is satisfied that the visa holder did not comply with a condition of their visa.
2. Since Mr Singh’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 Mr Singh to work only in the occupation listed in the most recently approved nomination in relation to him, and only in the business of his sponsor, or an associated entity. In addition, if he ceases employment, the period during which he ceases employment must not exceed 90 consecutive days. There is an exception which includes certain specified occupations not applicable in this case.
3. Mr Singh’s Subclass 457 visa was granted on 1 December 2014 on the basis of being nominated by Tamarin in the occupation of Cafe or Restaurant Manager.
4. During the hearing the Tribunal put to Mr Singh that, consistent with its search of ASIC records, a Liquidator was appointed to Tamarin on 13 August 2015 following application by the Australian Taxation Office (ATO). Mr Singh reiterated his evidence to the Department that he was not aware of Tamarin’s liquidation until informed of this by the Department and kept going to work. The Tribunal asked Mr Singh how he was paid in the latter part of 2015 (after appointment of the Liquidator) and in 2016. He told the Tribunal that the Tamarin Restaurant’s 4 – 5 staff were only ever paid in cash, from the till, and only when the owner Dave Batra had money to pay them. He said he never received a pay slip and nor did he receive a PAYG Summary after 30 June 2015 or 30 June 2016 for lodgement at the ATO with his tax return. Mr Singh admitted he had no evidence to provide to the Tribunal that he continued to work with Tamarin following the appointment of a Liquidator. Initially, he told the Tribunal that no one had told him about the liquidation and that, if anyone had told him, he would have sought another employer to take over sponsorship of his visa.
5. The Tribunal has independently confirmed with a representative of the Liquidator appointed by the Supreme Court of NSW that the business did not continue to trade after 13 August 2015. In the circumstances, the Tribunal finds that Mr Singh’s employment with Tamarin ceased with effect on 13 August 2015. By the time the Department sent its NOICC to Mr Singh on 19 December 2016 he had ceased to work for Tamarin for more than 16 months.
6. Consistent with the provisions of s.359AA of the Act, the Tribunal put to Mr Singh information from the Liquidator’s office that, the day after the appointment (that is, on 14 August 2015), the Liquidator attended the Tamarin Restaurant premises in Main Street, Blacktown to speak with staff. He told staff of his appointment as Liquidator. Mr Singh denied this occurred. He questioned how he could prove this to the Tribunal because he “was not there” that day. When asked whether colleagues contacted him after the Liquidator’s site visit Mr Singh admitted receiving a call from a co-worker who recommended he apply for another sponsor to take over his Subclass 457 visa.
7. The Tribunal observed it appeared the grounds for cancellation of Mr Singh’s Subclass 457 were made out as his employment with Tamarin had been terminated following appointment of the Liquidator. He had ceased employment with his sponsor Tamarin for more than 90 days when the delegate cancelled his visa. Mr Singh agreed that the grounds for cancellation due to his breach of visa condition 8107(3)(b) were made out.
8. 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
1. 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’.
2. 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]
1. Mr Singh told the Tribunal he came to Australia in April 2009 to study. Having lived in the Philippines for a number of years, it was his plan initially to enrol in high school to undertake Grades 11 and 12. However, after arriving in Australia, a migration agent informed him that he could enrol in a course at TAFE instead and so, after 6 months attending school, he switched to study at a TAFE. Mr Singh said he initially enrolled in a Certificate II in Business and then continued with his studies until he completed a Diploma of Management. This was followed by an Advanced Diploma of Accounting and then a Diploma of Human Resource Management. As noted above, Mr Singh said he also enrolled in a Bachelor of Commerce but did not continue with the course. Subsequently, he was sponsored on a Subclass 457 visa by Tamarin for 4 years expiring 1 December 2018.
2. The Tribunal notes that the purpose of a Subclass 457 visa is for holders of that visa to work for an approved sponsor in an approved nominated occupation. After he received the NOICC, Mr Singh told the Tribunal that he began looking for another sponsor. He was offered the role of Cafe or Restaurant Manager with approved sponsor Maharaja Function Centre Pty Ltd (Maharaja Function Centre) which then proceeded to lodge a new nomination application for him on 4 January 2017. A decision on Maharaja Function Centre’s nomination application remains pending.
3. Following the Department’s cancellation of his Subclass 457 visa, Mr Singh promptly secured a Bridging E visa the next day and, within a fortnight, had successfully applied to have the work condition 8101 removed from his Bridging E visa. Accordingly, he has had unrestricted work rights since 1 February 2017. Asked if he has been working at the Maharaja Function Centre since early February, Mr Singh told the Tribunal that he has been driving a delivery van for Australia Post and added that he thought he was restricted to working 20 hours a week. The Tribunal recommended he contact the Department for clarification of his work rights in Australia.
4. In relation to the pending nomination lodged by Maharaja Function Centre, Mr Singh provided the Tribunal at the hearing with a requisition issued by the Department dated 23 February 2017 addressed to the Maharaja Function Centre. The letter requests lodgement of additional documentation including the signed employment contract (between Tamarin and Mr Singh), evidence that the position is genuine as well as evidence that the terms and conditions of employment are no less favourable than those offered to Australian citizen or permanent resident employees. Given that 6 months have passed since lodgement of the Maharaja Function Centre‘s nomination application and in the absence of a representative of the business at the hearing, the Tribunal requested a letter of support signed by a Director of the Maharaja Function Centre to confirm the ongoing offer of employment subject to immigration approval on or before 20 July 2017. Mr Singh was also requested to provide the documentation lodged in response to the Department’s requisition referred to above. The Tribunal has not received any documentation from Mr Singh.
5. Having regard to the purpose of Mr Singh’s travel to and stay in Australia, the Tribunal has considered that the Maharaja Function Centre’s nomination application is still pending with the Department. The Tribunal gives some weight to this consideration in favour of not cancelling his Subclass 457 visa. However, it notes considerably more weight would have been given to this consideration had Mr Singh provided the requested letter of support from the Maharaja Function Centre as well as the documentation provided in response to the Department’s requisition referred to above. Conspicuous by their absence are a copy of the signed contract of employment and letter of support.
6. The Tribunal has also considered that Mr Singh’s employment with his approved sponsor Tamarin ceased more than 22 months ago. The Tribunal gives weight to this consideration in favour of cancelling the visa.
Extent of compliance with visa conditions, now and on previous occasions
1. Mr Singh told the Tribunal that he has been compliant with all conditions attached to his earlier Student visas as well as his Subclass 457 visa. He added he has no way of proving that he did comply with visa conditions.
2. In relation to Mr Singh’s earlier Student visas, there is no evidence before the Tribunal indicating that he did not comply with conditions attached to those visas. The Tribunal gives weight to this consideration in not cancelling the visa.
3. In relation to compliance with the conditions attached to his Subclass 457 visa, the Tribunal accepts that the situation Mr Singh finds himself in arose because the business of his sponsor Tamarin was the subject of a Court ordered liquidation. In his evidence to the Tribunal, Mr Singh initially said that he did not know about the liquidation. However, after the Tribunal put evidence to him regarding the Liquidator making a site visit to the business premises in Main Street Blacktown to speak with staff on 14 August 2015, Mr Singh said that a work colleague had called to tell him he would need to find a new sponsor. After appointment of the Liquidator, it was another 16 months before the Department sent its NOICC to Mr Singh. Condition 8107(3)(b) as it applies to Mr Singh provides that he must not cease to be employed by his sponsor for 90 consecutive days. The Tribunal considers Mr Singh’s non-compliance with condition 8107(3)(b) for a period in excess of 13 months after expiry of the initial 90 day period following termination of his employment with Tamarin to be significant. The Tribunal gives weight to this consideration in favour of cancelling the visa.
The circumstances in which the ground for cancellation arose
1. The circumstances giving rise to the Department’s cancellation of Mr Singh’s Subclass 457 visa on 9 January 2017 arose from the Department becoming aware that a Liquidator had been appointed to Tamarin and, accordingly, the Tamarin Restaurant had ceased to operate and Mr Singh’s employment had been terminated.
2. The Tribunal accepts that the circumstances in which the ground to cancellation arose were, essentially, beyond Mr Singh’s control. As he was employed as a Restaurant Manager the Tribunal expressed some surprise at Mr Singh’s initial claim that he was unaware of the financial circumstances of the business. This is in light of the fact that one of the tasks of a Restaurant Manager is arranging the purchasing and pricing of meals sold to the public. Asked how much money the Tamarin Restaurant took, on average, per night Mr Singh initially said about $300 -$400. When the Tribunal noted that this would hardly cover purchase of ingredients as well as salaries for the 4 - 5 people he said worked there, Mr Singh then changed his evidence and said that on Fridays and Saturdays it took between $700 - $800.
3. The Tribunal notes that, as discussed with Mr Singh during the hearing, 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 his case, has ceased. 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.
4. Mr Singh told the Tribunal that he did not seek professional advice (from an employment lawyer or the Fair Work Ombudsman) about being paid in cash when the business owner had funds to pay him or the absence of payslips. He also did not seek professional advice will contact the Department when his work colleague told him he needed to find a new sponsor after the Liquidator came to the premises on 14 August 2015. Mr Singh acknowledged that he did not action this until such time as he received the Department’s NOICC.
5. The Tribunal gives weight to these considerations in favour of cancelling the visa.
Visa holder’s past and present behaviour towards Department
1. Information held in the Department’s file indicates that Mr Singh has been co-operative with the Department. He responded to the NOICC issued by the Department on 19 December 2016 and confirmed that the Maharaja Function Centre had already lodged a nomination application in respect of the position of Restaurant Manager for him.
2. The Tribunal gives little weight to this consideration of Mr Singh’s past and present behaviour towards the Department in not cancelling his visa.
Degree of hardship
1. The Tribunal has also considered the hardship that may be caused if Mr Singh’s Subclass 457 visa is cancelled.
2. Mr Singh told the Tribunal that it has been hard getting to this point without achieving permanent residence or without having the money to pursue that goal. He opined that he has been “wasting time and money”. Mr Singh added that he owes a lot of money to friends in Australia who have helped support in. His mother still lives in the Philippines but his father has died. Mr Singh said his siblings are in India.
3. While the Tribunal accepts that leaving Australia would involve some adjustment for Mr Singh having lived here for 8 years it is nonetheless of the view that any difficulties would not be significant having regard to the qualifications and work experience he has gained in Australia.
1. The Tribunal gives little weight to these considerations in favour of not cancelling the visa.
Whether there would be consequential cancellations under s.140 of the Act
1. Mr Singh confirmed that there are no persons in Australia whose visas would, or may be, cancelled under s.140 of the Act. Accordingly, the Tribunal gives no weight to this consideration in not cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
1. The Tribunal finds that affirming the cancellation of Mr Singh’s Subclass 457 visa would result in him being unlawful if he does not leave Australia in the permitted time and he may thereby be subject to being detained at a Detention Centre. The Tribunal gives little weight to this consideration in not cancelling the visa.
2. Mr Singh currently holds a Bridging E visa with work rights allowing him to remain lawfully in Australia and, should he wish to apply for another Subclass 457 visa from overseas, he will not be subject to a penalty under Public Interest Criterion (PIC) 4013. Furthermore, as he obtained his Bridging E visa on 10 January 2017 (that is, within 24 hours of cancellation of his Subclass 457 visa on 9 January 2017) he will not be subject to a risk factor under PIC 4014.
3. The Tribunal gives no weight to this consideration in not cancelling the visa.
Whether obligations under international agreements would be breached
1. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Singh’s Subclass 457 visa. He made no submissions in this regard.
2. The Tribunal gives no weight to this consideration in not cancelling the visa.
Other considerations
1. The Tribunal has given consideration to the fact that Mr Singh has been nominated by approved sponsor Maharaja Function Centre and that the Department’s decision on the nomination application is still pending. It is uncertain not only if but also when Mr Singh will become the subject of an approved business nomination.
2. It is open to Mr Singh to return to India to await the outcome of the Maharaja Function Centre’s nomination. Further, the Tribunal observes he would not be barred for 3 years from applying offshore for a new Subclass 457 visa because, as noted above, he was granted his Bridging E visa within 28 days of cancellation of his Subclass 457 visa and therefore is not subject to PIC 4014.
3. However, Mr Singh has failed to lodge with the Tribunal evidence in relation to ongoing support from the Maharaja Function Centre and, furthermore, a copy of all documentation he believes was provided to the Department in response to its requisition of 23 February 2017 referred to above. Had Mr Singh provided requested documentation to the Tribunal it would have would have considered the documentation carefully as evidence of the Maharaja Function Centre’s ongoing commitment to employ him once the Department approves its nomination. The Tribunal would also have considered the cost to Mr Singh in returning to India to apply for a Subclass 457 visa and await the outcome of the Maharaja Function Centre’s nomination application lodged 4 January 2017. The Tribunal accepts the cost of returning to India would be a considerable expense.
4. The Tribunal notes that not only has Mr Singh not provided it with requested documentation but he has also not endeavoured to confirm with the Department, or a professional advisor, his work rights status in Australia. Had he done so, he would have established that he could have started working with the Maharaja Function Centre from 2 February 2017 when condition 8101 (No Work) attached to his first Bridging E visa was removed.
5. The Tribunal gives weight to these considerations in favour of cancelling the visa.
Conclusion
1. Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of cancelling Mr Singh’s Subclass 457 visa outweighs that in favour of not cancelling his visa. For these reasons, the Tribunal has formed the view that this is not an appropriate case to exercise its discretion and set aside cancellation of Mr Singh’s Subclass 457 visa.
2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
1. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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
1. (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 1344

25 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness