SINGH (Migration)

[2017] AATA 78

SINGH (Migration) [2017] AATA 78 (6 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pushpender Singh
Mrs Nisha Kumari

CASE NUMBER:  1613858

DIBP REFERENCE(S):  BCC2016/772881

MEMBER:Katie Malyon

DATE:6 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 second named applicant.

Statement made on 06 January 2017 at 3:55 pm

CATCHWORDS

Migration – Cancellation – (Temporary Work (Skilled)) visa – Subclass 457 – Ceased employment exceeding 90 consecutive days – Consideration of discretion – Former representative’s conduct – Third nomination pending with approved sponsor – Impact on new sponsor

LEGISLATION

Migration Act 1958, s 116, s.140(1)

Migration Regulations 1994, Schedule 2, Schedule 8, cl 457.223(4), Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 August 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of first named applicant, Mr Pushpender Singh, 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 Mr Singh’s Subclass 457 visa under s.116(1)(b) of the Act on the basis that Mr Singh had ceased employment with his sponsor, Indian Food Enterprises Pty Ltd (Indian Food Enterprises).  The 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 Mr Singh’s Subclass 457 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 Mr Singh, the first named applicant. The second named applicant is Mr Singh’s wife. Her visa was automatically cancelled as a consequence of the cancellation of Mr Singh’s visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’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 cancellation under s.140(1) of the Act, the Tribunal has no jurisdiction with respect to the second named applicant.

4. Mr Singh appeared before the Tribunal on 23 November 2016 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent, who also attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Singh’s Subclass 457 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.

   Does the ground for cancellation exist?

7. 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 instance condition 8107 attached to Mr Singh’s Subclass 457 visa. The full text of condition 8107 is set out in Annexure B to this decision.

8. Mr Singh’s Subclass 457 visa was granted on 29 May 2015 for a period of 4 years on the basis of an approved nomination made by his sponsor Indian Food Enterprises.  He told the Tribunal that, having completed studies in Australia in Commercial Cookery, he was offered the job of Cook with Indian Food Enterprises but left just 4 months later in mid-November 2015 when he was asked to work 7 days a week.  Mr Singh told the Tribunal that, at the time, he thought his nephew was running the business. 

9. 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.

10. As more than 90 consecutive days have passed since Mr Singh ceased employment with Indian Food Enterprises in mid-November 2015 (that is, more than 12 months ago) the Tribunal finds that Mr Singh has breached visa condition 8107 attached to his Subclass 457 visa.

11. 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

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel Mr Singh’s Subclass 457 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 its consideration of whether the power to cancel the visa should be exercised 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.[1]

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

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

13. Mr Singh told the Tribunal he came to Australia in July 2009 to study.  Having completed studies in India in Information Technology he said he decided to study Commercial Cookery in Australia.  However, after completing his studies in Commercial Cookery, Mr Singh then applied onshore for a further Student visa and completed an Advanced Diploma in Information Technology before he began working as a Cook on a Subclass 457 visa sponsored by his nephew’s business, Indian Food Enterprises.  At that time, he could not find work in Information Technology.    

14. 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.  Since Mr Singh terminated his employment with his sponsor in mid-November 2015 the purpose of his Subclass 457 visa came to an end more than one year ago.  As noted in the delegate’s letter, a copy of which was provided to the Tribunal, Mr Singh was nominated by a new sponsor Rasam Pty Ltd (Rasam) on 12 February 2016 (the First Nomination). The First Nomination was withdrawn on 11 May 2016.  Mr Singh told the Tribunal that it came to Rasam’s attention that the registered migration agent who assisted the company with the First Nomination had made a mistake when completing the online form and inserted the occupation of Manager instead of Web Administrator.  Mr Singh told the Tribunal he had no managerial experience and, accordingly, the First Nomination was withdrawn but not before a new nomination was lodged on 2 May 2016 with the assistance of a new representative (the Second Nomination).  However, the Second Nomination was refused by the Department on 23 August 2016.  Mr Singh told the Tribunal he understands it was refused because the Department was not satisfied Rasam had a need for a Web Administrator. 

15. Almost 2 months later, on 13 October 2016, Rasam lodged a new nomination application (the Third Nomination).  A decision by the Department on the Third Nomination remains pending at the time of this decision.  Mr Singh explained the delay in lodgement of the Third Nomination was due to the time it took Rasam to collate requisite documentation for lodgement with the Department including evidence of having outsourced previous web development work to India.  Owing to the festival season in India in September it took Rasam a number of weeks before it was able to lodge what it considered a fully documented decision-ready nomination application with the Department. 

16. Prior to the hearing, Mr Singh’s representative provided the Tribunal with a copy of Rasam’s Third Nomination application together with documentation lodged in support of the application.  Documentation provided to the Tribunal includes:

    ·     a copy of the Third Nomination application;

    ·     a submission addressing why the position of Web Administrator fits within the scope and scale of Rasam’s business and why the position is necessary for the operations of the business;

    ·     an Organisation Chart for the business indicating that, in addition to Mr Singh, Rasam employs 3 other people who work full-time at the business and another person who works on a casual basis.  One of the employees who works in the position of Print Finisher is a Subclass 457 visa holder sponsored by Rasam;

    ·     Business Activity Statements (BAS) for the quarters ended 31 March 2016 and 30 June 2016; and,

    ·     evidence of salaries offered to Web Administrators in Sydney including PayScale data and an advertisement for a Web & Administration Coordinator in Sydney. 

17. After the hearing, the BAS for the quarters ended 31 December 2015 and 30 September 2016 were provided to the Tribunal as well as a letter of support from Rasam.  The letter, signed by a Director of Rasam, confirms Mr Singh has been working with the business for more than a month and that his duties cover all aspects of creating websites as well as writing and editing content for the websites.  It also details the hardship it would cause to the business if Mr Singh’s Subclass 457 visa is cancelled.

18. Mr Singh told the Tribunal that, when he secured work rights on his current Bridging E visa following cancellation of his Subclass 457 visa, he began working with Rasam on 29 September 2016. 

19. In the context of the purpose of Mr Singh’s travel to and stay in Australia, the Tribunal has considered that the Third Nomination application is still pending with the Department as well as the efforts by Rasam to address the shortcomings of its former representatives’ conduct in lodging first an inaccurate and then an incomplete nomination application.  The Tribunal gives weight to this consideration in favour of not cancelling the visa.  

20. The Tribunal has also considered that Mr Singh’s employment with his sponsor ceased more than 12 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

21. The Tribunal discussed visa condition 8107 with Mr Singh.  He acknowledged that he has not worked for Indian Food Enterprises since 12 November 2015, that is, more than 90 days.  Since his Subclass 457 visa was cancelled on 29 August 2016, Mr Singh has secured a Bridging E visa with work rights.  He told the Tribunal that, to ensure compliance with his visa conditions, he only started working with Rasam when the Department removed condition 8101 from his Bridging E visa at the end of September 2016.

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

    Degree of hardship 

23. The Tribunal has also considered the hardship that may be caused if Mr Singh’s Subclass 457 visa is cancelled.  He told the Tribunal that returning to India would be difficult as he has lived in Australia since 2009 and he now has a wife and new baby to care for.  He provided the Tribunal with evidence of a baby son born in Sydney on 1 November 2016. 

24. Mr Singh said he feels manipulated.  He came here to study Commercial Cookery because that is what the agents in India said would be a secure a future in Australia.  However, after completing his cookery studies and finding work in the restaurant industry was not what he had expected, he went back to do further study in Information Technology and is now happy to have secured a job with Rasam.  In the event that the Tribunal affirms the decision of the Department to cancel his Subclass 457 visa, Mr Singh confirmed for the Tribunal that both he and his wife have family back to India who could assist with any readjustment issues, especially as they have a new baby to care for. 

25. While the Tribunal accepts that leaving Australia would involve some adjustment for Mr Singh and his young family it is nonetheless of the view that any difficulties would not be significant given the study he has undertaken in Australia and, to a lesser extent, the employment experience Mr Singh has 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 Mr Singh’s Subclass 457 visa on 29 August 2016 arose from termination by him of his sponsored employment as notified by Indian Food Enterprises to the Department.  Mr Singh gave oral evidence to the Tribunal that he left his employer in mid-November 2015 because he felt harassed when he was asked to work 7 days a week.  He said he was also not paid for the work that he did do.  Mr Singh added that he originally thought the business of Indian Food Enterprises was owned by his nephew who offered him the job of Cook.  However, he later found out that his nephew did not own the business and his nephew was not able to help him with the real owner’s demands that he work 7 days a week. 

28. Mr Singh told the Tribunal that, although he signed a contract of employment to work with Indian Food Enterprises, he had never read the document and, furthermore, when he was asked to work 7 days a week he did not seek legal advice regarding his rights as an employee.  In addition, he did not make a complaint to the Fair Work Ombudsman (FWO).  Rather, he said he solved his problem by resigning his employment.  Mr Singh also said that, initially, he was suffering from depression because of what had happened to him and it was when he felt better that he started to look for work more aligned to his area of professional interest - that is, information technology - and was happy when he was introduced to Rasam by a friend.

29. Mr Singh told the Tribunal that the Indian hospitality business in Australia is rife with scams.  He added that many sponsored Subclass 457 visa holders are paying their employer in cash to secure their visas.  The Tribunal acknowledged the recent investigations by the FWO into the 7 Eleven abuse of foreign students.  Mr Singh declined to provide the Tribunal with any further details of his allegations.

30. Based on Mr Singh’s evidence, it is clear that his employment relationship with Indian Food Enterprises had broken down in November 2015.  Despite this, he did not immediately seek employment with another sponsor and not did he pursue advice regarding possible remedies from a workplace lawyer or the FWO.

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

    Visa holder’s past and present behaviour towards Department

32. Information held in the Department’s file indicates that Mr Singh has been co-operative with the Department.  He responded to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department on 5 April 2016 confirming that Rasam had already lodged the First Nomination.  This was the application that was subsequently withdrawn by Rasam due to its first representative’s errors in completing the online nomination application. 

33. The Tribunal gives little weight to consideration of Mr Singh’s past and present behaviour towards the Department in not cancelling his visa.

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

34. As noted above, Mr Singh told the Tribunal that his wife (the second named applicant) has recently given birth to their first child, a son.  A Birth Certificate has not yet been issued by the NSW Birth Deaths and Marriages Registry. 

35. It is the Tribunal’s opinion that if Mr Singh’s Subclass 457 visa is cancelled his family unit would remain together.  Mr Singh confirmed for the Tribunal that he and his wife have family in India.  It is also the Tribunal’s opinion that such family members would be able to assist with his immediate family’s readjustment to life back in India. 

36. The Tribunal gives little weight to consideration of the consequential cancellation of Mr Singh’s family’s Subclass 457 visas under s.140 of the Act in not cancelling his visa.

    Whether there are mandatory legal consequences to a cancellation decision

37. The Tribunal finds that cancellation of Mr Singh’s Subclass 457 visa could 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.

38. 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 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 2 September 2016 (that is, within 3 days of cancellation of his Subclass 457 visa on 29 August 2016) he will not be subject to PIC 4014.  The Tribunal gives no weight to this consideration in not cancelling the visa.

    Whether obligations under international agreements would be breached

39. There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Singh’s Subclass 457 visa.  Neither Mr Singh nor his representative made any submissions in this regard.  The Tribunal gives no weight to this consideration in not cancelling the visa.

    Other considerations

40. The Tribunal is not required to delay making a decision when it is justified in making a decision.[2]  The Tribunal has considered Mr Singh’s evidence that he has lived in Australia since 2009 and that, since then, he has obtained qualifications in Commercial Cookery and further qualification in Information Technology.  It has also considered that he has been nominated, for a third time, by approved sponsor Rasam and that at the time of this decision the Department’s decision on the Third Nomination is still pending.  Rasam is approved as a standard business sponsor until 3 November 2020. The Tribunal also notes the letter from a Director of Rasam received after the hearing which attests to the high quality of Mr Singh’s work as well as his professionalism, remarkable problem-solving abilities and business understanding.  The letter also outlines the adverse impact on Rasam if the company was to lose Mr Singh’s services.

    [2] Chen v Minister for Immigration & Anor [2016] FCCA 2351, Smith J at [31]

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

    Conclusion

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

    DECISION

1. 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.

2. The Tribunal has no jurisdiction with respect to the second named applicant.

   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.

   oOOo