ZHANG (Migration)

ZHANG (Migration) [2018] AATA 699 (9 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yuhua Zhang
CASE NUMBER:  1708693
DIBP REFERENCE(S):  BCC2015/3412210
MEMBER:Katie Malyon
DATE:9 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 09 March 2018 at 12:42 pm
CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement to not cease employment for more than 90 days – Applicant spent more than 90 days not employed – Sponsor voluntarily deregistered – Grounds for cancellation exist – Consideration of discretion – Significant time spent not employed – No nominations pending -
LEGISLATION
Corporations Act 2001, s 601AA
Migration Act 1958, ss 48, 116(1)(b), 140M(1)(d), 359A
Migration Regulations 1994, Schedule 2, cl 457.223(3), Schedule 8, Conditions 8101, 8107
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 April 2017 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa of review applicant, Mr Yuhua Zhang, under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled Mr Zhang’s visa under s.116(1)(b) of the Act on the basis that he ceased employment with his sponsor Anshan City Huanyu Construction & Engineering Co Ltd, subsequently known as Anshan City Huanyu Construction & Engineering Pty Ltd ACN 167 286 268 (Anshan) on 16 September 2015 when his sponsor, whose sponsorship had already ceased on 26 August 2014, was barred from making future applications for approval as a standard business sponsor. At the time of the delegate’s decision, Mr Zhang had not been nominated to work with another approved sponsor since he ceased working with Anshan. Neither Anshan nor Mr Zhang informed the Department that he had returned to work for Anshan, or an associated entity, within 90 days of ceasing employment with Anshan on 16 September 2015. Accordingly, the delegate found Mr Zhang had breached condition 8107(3)(b) attached to his Subclass 457 visa as the period during which he ceased employment with Anshan exceeded 90 consecutive days.
The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
Mr Zhang appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Mr Zhang was represented in relation to the review by his registered migration agent but his representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel Mr Zhang’s 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)(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?
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.
Subclass 457 visa holders sponsored by a standard business sponsor have condition 8107(3) attached to their visa: cl.457.223(3) of Schedule 2 of the Migration Regulations 1994 (the Regulations). Condition 8107(3) requires the visa holder to work only in the occupation listed in the most recently approved nomination in relation to them, only in the business of their sponsor or an associated entity and, if they cease employment with their sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days.
Prior to the hearing, consistent with the provisions of s.359A of the Act, the Tribunal wrote to Mr Zhang on 26 October 2017 inviting comments in writing on information that, if accepted, would be the reason or part of the reason for affirming the decision under review. The Tribunal’s letter referred to the sanction of a 3 year bar issued to Anshan on 16 September 2015 outlined above. It also states that, on 28 August 2015, the Australian Securities and Investment Commission (ASIC) published on its website, a notice of Anshan’s proposed voluntary deregistration under s.601AA of the Corporation Act 2001 and that, further, ASIC records confirm Anshan was voluntarily deregistered on 28 October 2015. As a result, Anshan ceased to exist as a legal entity effective 28 October 2015.[1]
[1]>
The Tribunal’s letter issued pursuant to s.359A of the Act also notes that, as Anshan was a standard business sponsor, Mr Zhang’s Subclass 457 visa was granted under cl.457.223(3) of Schedule 2 to the Regulations and, accordingly, condition 8107(3) is applicable to his visa. This requires him to work only in the occupation of Bricklayer listed in the most recently approved nomination, only in the business of his sponsor Anshan or an associated entity and, if he ceases employment with Anshan, then the period during which he ceases employment must not exceed 90 consecutive days. The Tribunal’s letter advised this information is relevant because the Tribunal may find that he has not complied with condition 8107 and that there are grounds for affirming cancellation of his Subclass 457 visa under s.116(1)(b) of the Act which, relevantly, permits a Subclass 457 visa to be cancelled for breach of a visa condition.
Additionally, the Tribunal advised that, in the event it finds the ground for cancellation exists, Mr Zhang’s Subclass 457 visa was granted on 5 December 2013 for 4 years and expires on 5 December 2017.
Mr Zhang’s representative responded to the Tribunal’s letter on his behalf attaching a Personal Statement in English dated 20 November 2017 signed by Mr Zhang and attaching 19 photographs of domestic construction sites showing brickwork undertaken by Mr Zhang. In his Personal Statement, Mr Zhang states that he does not believe the ground for cancellation exists and that his visa should not be cancelled. He also states that:
·Since he was granted a 457 visa he has been working with his sponsor Max Construction (Australia) Pty Ltd (Max Construction) until early 2017;
·Max Construction or its Directors provided misleading information to the Department and in October 2015, a year after he was granted his 457 visa, he and his co-workers in Perth were told by their employer that they had to transfer to another company, whose owner is one of the friends of the owner of Max Construction.
·The reason for the transfer was quite ambiguous. He was given paperwork to sign but not given a copy of the documents. He was told he would be sent from Perth to Sydney to work.
·While working in Sydney, one of the Directors of Max Construction (Helen) let her son be in charge of jobs. Helen’s son informed the workers of work sites and duties by phone call or WeChat, a Chinese mobile social networking application.
·He and his co-workers continued to be paid their wage by Max Construction although he cannot see on his bank statement the source of wage payments. He assumed wages were paid by Max Construction or the company that he and his co-workers were told they would be transferred to.
·He and his co-workers continued to do the same work at various construction sites in Sydney.
·He was never made aware that there was anything wrong with his employer’s sponsorship issue. He is an experienced bricklayer and his only intention is to apply his skills and work in Australia for his sponsor. At the beginning, it was Max Construction but, later on, his boss Helen said the sponsoring company would be changed but that everything would be fine and he genuinely believed her and continued to work for her.
·He has never intended to breach any visa conditions. It was not until early 2017 that he realised there could be something dodgy with his employer: for example, tax was deducted but he was never given any group certificate.
·He heard rumours that the company deliberately cancelled employees’ visas so that the company could continue to sponsor more people from overseas. Therefore, he decided to find a new employer and 2 months later he found HLHB Pty Limited (HLHB). With the assistance of an agent, he applied to change his employer in April 2017 and properly notify the Department.
At the commencement of the hearing, the Tribunal sought to establish the name of Mr Zhang’s sponsor in light of the comment in his Personal Statement that he worked for Max Construction. Mr Zhang told the Tribunal he did not know his employer’s name in English. With the assistance of the interpreter - who had the benefit of the Tribunal providing an ASIC extract in relation to Anshan - Mr Zhang clarified that Anshan was the employer which sponsored him to come to Australia to work as a Bricklayer in Perth. He told the Tribunal that, after working with Anshan in Perth, he was then asked to change his employer to another company and move to Sydney.
The Tribunal clarified with Mr Zhang that he signed the Personal Statement and provided the photographs that had been on-forwarded by his representative to the tribunal. He told the Tribunal that he had written the statement in Chinese and then had it translated before he signed it. He confirmed the Personal Statement has his signature.
The Tribunal also sought to clarify with Mr Zhang that he had provided the Personal Statement in response to the letter issued by the Tribunal pursuant to s.359A of the Act. Initially, he denied receiving the letter at all but then, when shown documentation and his representative’s covering email responding to the Tribunal’s invitation, Mr Zhang confirmed that he had, in fact, received the Tribunal’s letter. He also confirmed that he was aware that his sponsor Anshan was deregistered by ASIC on 28 October 2015 and that he had worked with Anshan in Perth until October 2015. Asked what occurred after that time, Mr Zhang told the Tribunal that he was then asked to transfer to Sydney and that’s when he started to work with Max Construction.
When questioned whether he had any evidence to confirm that he had worked with Anshan in Perth, Mr Zhang told the Tribunal that he had bank statements at his home in Sydney which confirm that, every month, money was sent to his ‘bank card’. He said that he could lodge evidence with the Tribunal within 24 hours of having worked with Anshan and receiving money paid to his bank account. Later during the course of the hearing, Mr Zhang said that although money was paid into his account when he worked with Anshan in Perth the name of the payer does not appear on his bank records. No bank records were lodged with the Tribunal after the hearing.
Mr Zhang told the Tribunal that he does not know if the lady, who he calls Helen, has anything to do with Anshan or Max Construction: all he knows is that, when Anshan was deregistered, it was Helen and then her son who gave them instructions to go to Sydney to work with Max Construction. He does not think Helen or her son is a Director or shareholder of Anshan. The Tribunal showed Mr Zhang a copy of records held by ASIC in relation to Anshan including the names of its Directors and shareholders. He said he recognises the names of the Directors and shareholders and knows them, but Helen is not one of them. He added he does not know who is involved with Max Construction.
On the evidence before it, the Tribunal is satisfied that Mr Zhang was granted his Subclass 457 visa on the basis of being sponsored by Anshan. He acknowledged working with Anshan in Perth until October 2015 when he moved to Sydney to work with Max Construction. No evidence was provided to the Tribunal of any relationship between Anshan and Max Construction.
The delegate found that Mr Zhang had ceased employment with Anshan effective 16 September 2015. This was the day that the Department barred Anshan under s.140M(1)(d) of the Act from making future applications for approval as a standard business sponsor. In the circumstances, the delegate found that Mr Zhang had ceased employment for more than 90 days in breach of condition 8107(1)(b) and, accordingly, cancelled the visa under s.116(1)(b) of the Act.
The Tribunal disagrees with the basis on which the delegate has cancelled Mr Zhang’s Subclass 457 visa. The mere fact that his sponsor Anshan was barred from making a future application for sponsorship does not, ipso facto, impact the validity of sponsored employees’ Subclass 457 visas. In circumstances where Anshan was voluntarily deregistered by ASIC effective 28 October 2015, it would have been open for the delegate to issue a Notice of Intention to Consider Cancellation consistent with s.119 of the Act on the basis that 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 as contemplated by s.116(1)(a) of the Act.
However, as noted above, prior to the hearing and consistent with the provisions of s.359A of the Act, the Tribunal wrote to Mr Zhang on 26 October 2017 inviting his comments in writing on information that, if accepted, would be the reason or part of the reason for affirming the decision under review. While the Tribunal’s letter referred to the 3 year bar issued to Anshan, relevantly, it also noted that ASIC published on its website on 28 August 2015 a notice of Anshan’s proposed voluntary deregistration under s.601AA of the Corporations Act 2001 and that ASIC records now confirm Anshan was voluntarily deregistered on 28 October 2015. The Tribunal finds that Anshan ceased to exist 28 October 2015 and that Mr Zhang’s employment with Anshan ceased at this time. In his evidence to the Tribunal, Mr Zhang acknowledged this. He explained that his employment with Anshan ended in October 2015 and that is why he left Perth to work with Max Construction in Sydney.
Having regard to evidence provided, the Tribunal finds that Mr Zhang breached condition 8107(3)(b) of his Subclass 457 visa when he ceased employment with his sponsor Anshan in October 2015 and he did not resume working with Anshan within 90 days. Additionally, based on the evidence provided, the Tribunal finds that Mr Zhang has worked in Australia for Max Construction, that is, an employer other than his sponsor Anshan or an associated entity and, consequently, he has breached condition 8107(3)(a)(ii).
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
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’.
The purpose of the visa holder’s travel and stay in Australia
Mr Zhang travelled to Australia as the holder of a Subclass 457 visa sponsored by Anshan. His Subclass 457 visa was granted on 5 December 2013 for a period of 4 years expiring on 5 December 2017: that is, but for cancellation by the Department of Mr Zhang’s Subclass 457 visa on 10 April 2017, his visa was due to expire 3 months ago.
A Subclass 457 visa is a temporary visa designed to allow employers to fill gaps in the Australian workforce with highly skilled foreign workers. As noted above, Anshan was an approved standard business sponsor and, accordingly, consistent with conditions attached to Mr Zhang’s visa, he should have worked directly for Anshan or an associated entity. Based on the evidence provided, the Tribunal finds the employment relationship with Anshan came to an end sometime in October 2015 when his sponsor was deregistered by ASIC and the company ceased to exist.
Asked whether he had endeavoured to find another sponsor to take over his Subclass 457 visa Mr Zhang said that he had but, because he did not have work rights following cancellation of his Subclass 457 visa, no one wanted to employ him. The Tribunal observed Departmental records confirmed the nomination lodged by HLHB had been withdrawn and no further nomination applications have been lodged.
The Tribunal finds that the purpose of Mr Zhang’s travel to and stay in Australia to work with Anshan (or an associated entity) as a Bricklayer came to an end in October 2015. No nomination application is pending and, in any event, the 4 year period of stay originally granted to Mr Zhang ended on 5 December 2017. In the Tribunal’s opinion, this weighs strongly in favour of cancellation of his visa.
Extent of compliance with visa conditions
In the view of the Tribunal, Mr Zhang has breached multiple conditions attached to his Subclass 457 visa over an extended period. Mr Zhang acknowledged a Subclass 457 visa is a temporary visa and that he should have been fully aware of the conditions attached to his visa. He said he was limited by his knowledge of English and relied on others for help.
Following cancellation of his Subclass 457 visa on 10 April 2017, Mr Zhang secured a Bridging E visa within a fortnight. The Bridging E visa granted on 24 April 2017 carried condition 8101 No Work. During the course of the hearing the Tribunal noted that, based on the Department’s Movement Records, it appears he applied for a further Bridging E visa. Mr Zhang told the Tribunal that, with the help of his representative, he tried to have the condition 8101 No Work removed but he is ‘yet to hear the outcome’. He added he does not know much about it because, not knowing English, he has left it all up to his representative.
Mr Zhang told the Tribunal that he stopped working with Max Construction in mid-April 2017. Since then, he has lived off money sent to him by his wife who remains in China (about $300 per month) and with the help of former colleagues who were also sponsored by Anshan and who now work with Max Construction. He added he also brought some money from China when he came to Australia.
Asked whether, at any time after ceasing employment with his sponsor Anshan, he sought advice from the Department in relation to regularising his visa status or finding a new sponsor, Mr Zhang said he had not sought any such advice.
In the view of the Tribunal, Mr Zhang’s multiple breaches of conditions attached to his Subclass 457 visa demonstrate a disregard for Australian immigration law. This weighs in favour of cancellation of his visa.
Degree of hardship that might be caused (financial, psychological, emotional or other hardship)
Mr Zhang told the Tribunal that he sold his house in China so that he could fund his opportunity to work in Australia. His family in China are now renting a house. He also told the Tribunal that he paid the Directors of Anshan RMB 140,000 to secure sponsorship by the company: half was paid before he left China and the remaining half after he arrived in Australia. The Tribunal observed this was a serious allegation and asked about evidence to confirm this claim. Mr Zhang said money was paid in cash, so there is no evidence. He confirmed he would be able to find work again in China.

After 4 years in Australia, the Tribunal accepts that there may be some adjustments for Mr Zhang upon his return to China. However, the Tribunal is nevertheless of the view that this would not be significant given his family remains there, he has the benefit of more than 3 years of work experience in Australia and has acknowledged he would be able to find work.
Circumstances in which the ground of cancellation arose
As noted above, the delegate cancelled Mr Zhang’s Subclass 457 visa on the basis that his employment with his sponsor Anshan ceased effective 16 September 2015. For the reasons outlined above, the Tribunal accepts he ceased his employment with Anshan in October 2015, that is, more than 90 days ago. The Tribunal has also found that Mr Zhang breached the condition requiring him to work only for his sponsor Anshan, or an associated entity. Mr Zhang told the Tribunal that after he left Perth and started working with Max Construction in Sydney it was Helen or her son who would contact him on his phone and direct him to work at various construction sites.
Immigration policy states that, relevantly, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder. The Tribunal accepts the fact Anshan ceased operations effective 28 October 2015 was beyond Mr Zhang’s control. It is the Tribunal’s view that Mr Zhang’s failure to explore and pursue advice from migration advisers or the Department when his sponsor Anshan ceased to operate weighs in favour of cancelling his visa.
Past and present conduct of the visa holder towards the Department
As noted above, Mr Zhang did not advise the Department that he had ceased employment with Anshan. Nor did he contact the Department when he was told to move to Sydney to work with a new company, Max Construction.
Mr Zhang acknowledged that he received notification of the conditions attached to his temporary visa when his Subclass 457 visa was granted. Despite admitting he was aware his visa was issued with conditions, Mr Zhang said he did not approach the Department to explore his visa options to remain in Australia when his employment with Anshan ceased. His oral evidence to the Tribunal that he paid RMB 140,000 to the Directors of Anshan to come to Australia suggests to the Tribunal that he may have been complicit in, or perhaps have even wilfully co-operated with, Anshan in breaching immigration law to facilitate his temporary residence in Australia for 4 years. Mr Zhang’s failure to seek appropriate professional advice when Anshan ceased operating indicates to the Tribunal that Mr Zhang is disrespectful of Australian immigration law.
The Tribunal gives weight to these considerations in considering whether Mr Zhang’s Subclass 457 visas should be cancelled.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act
Mr Zhang does not have any family members in Australia. Accordingly, this consideration is irrelevant.
Whether cancellation would result in mandatory legal consequences, for example, cancellation would result in the visa holder being unlawful and subjected to detention and whether indefinite detention is a possible consequence
Cancellation of Mr Zhang’s Subclass 457 visa by the delegate resulted in him becoming an unlawful non-citizen in Australia. When the delegate informed Mr Zhang of the cancellation of his Subclass 457 visa on 10 April 2017, the delegate also advised him of the effect of the cancellation and the need to regularise his visa status in Australia by obtaining a Bridging visa.
At the hearing, the Tribunal observed that, based on the Department’s Movement Records, it appeared he had secured a Bridging E visa on 24 April 2017. Mr Zhang agreed and said another application had been lodged to seek removal of the condition 8101 No Work. The Tribunal informed him it appeared, from its review of his Movement Records, that a second Bridging E visa had been granted on 1 May 2017 but that it contained identical conditions to his first Bridging E visa. The Tribunal encouraged Mr Zhang to discuss the matter further with his representative (who did not attend the hearing) in light of his advice he had yet to hear the outcome of his application to remove condition 8101.
The Tribunal accepts that, if it affirms the delegate’s cancellation of Mr Zhang’s Subclass 457 visa, he will be affected by s.48 of the Act and will be prevented, with limited exceptions, from lodging a further substantive visa application onshore. The Tribunal also notes that affirming cancellation of Mr Zhang’s Subclass 457 visa will not see him adversely affected by Public Interest Criterion (PIC) 4014 because Mr Zhang applied for his first Bridging E visas within 28 days of cancellation of his Subclass 457 visas on 10 April 2017.
Whether any international obligations would be breached
There is nothing to suggest that any international obligations would be breached as a result of cancellation of Mr Zhang’s Subclass 457 Visa. Neither Mr Zhang nor his representative made any submissions in this regard.
Considering the circumstances as a whole, in particular the fact that Mr Zhang’s Subclass 457 visa would have ceased on 5 December 2017 and there are no nomination applications pending by an approved sponsor, the Tribunal concludes that his visa should be cancelled.
DECISION
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.
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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.
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[2018] AATA 699

9 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Jurisdiction

Natural Justice