How to avoid Regional Sponsored Migration Scheme (Subclass 187) visa cancellation?
Let us talk about visa cancellation provision for a subclass 187 visa, a permanent visa today. If you have been granted a subclass 187 visa, you’ll have several conditions attached to this visa. It is important that you comply with these conditions, otherwise it may result in cancellation of your visa. We know how hard you have worked to get it, so don’t lose it!
So, what are these conditions?
1) Non commencement of employment
If you do not commence employment in your nominated position with your sponsor company within a stipulated time, youmay liable to have your visa cancelled. These time frames are:
- Number 1, If you are outside Australia at the time of grant of this visa: Six months from the date you first entered Australia
- Number 2, If you are in Australia at the time of grant of this visa: Six months from the date of the visa grant
The employer is to provide the information to the Department of Home Affairs. It is also possible that information on the visa holder’s employment status is gleaned from Centrelink, other government agencies or other sources. In the latter scenario, the Department will investigate first by contacting the employer.
2) The second important condition is Non completion of two years – What it is?
Should your employment be terminated from your role with your sponsoring employer, for whatever reasons, you may have your visa cancelled. It is your obligation to stay in the nominated position with the nominating employer for at least two years.
In calculating the period of employment, annual leave is considered to count towards the two years. In the case where you go on Leave Without Paythat has been agreed upon with the employer, you are not taken to have broken your service with the employer.
Note that previous periods of employment prior to the grant of the RSMS 187 visa such as the time spent with the employer on a Temporary Work (Skilled) visa (such as student visa, subclass 457 or TSS 482 visas) cannot count towards this two years requirement. The timer starts from when you, begin work whilst holding your RSMS 187 visa.
What if you have been dismissed by the employer?
Even if you did not intentionally fail to complete your obligations and have been terminated from your role, your visa may still be liable for cancellation. It doesn’t seem fair, does it? No. But why is it thatthen your visa maystill be cancelled? This is to prevent the possibility of you, as a187 visa holder, performing badly or worse, sabotaging the business, so as to create a situation where you are able to leave your obligation of completing two years of employment.
Of course if you have been unfairly dismissed or there are other circumstances, that’s a whole other story. Evidence will needed to be provided on the visa holder’s part in such situations – the employer will be left out of further dealings with the Department. If the dismissal has been brought forth to the Fair Work Commission, the Department will take into account the results of any proceedings.
So, what are the exceptions to this:
Where there has been genuine effort made on the visa holder’s part to commence employment within the required timeframe or to complete the obligated two years of service, but have not managed to do so due to compelling and/or compassionate reasons, it is possible for the visa holder to avoid their visa being cancelled.
The Department will consider things, such as:
- The visa holder’s reasons for and/or circumstances that results in their inability to commence employment or complete two years of services
- The period of the visa holder’s employment with their employer prior to the termination of their employment. If you have been in the nominated employment for a reasonable length of period, it may be considered positively, as opposed to a shorter period.
- Whether the employment was really genuine or if the employer and you as a visa holder created an arrangement for the sake of obtaining the visa
- OR, Any other such relevant details
Compassionate and/or compelling circumstances could include but are not limited to:
- The visa holder or a family member of the visa holder falling significantly ill
- The position no longer being viable due to the business seeing a drop in activity
- The business facing financial difficulties such as bankruptcy or closure
Circumstances that were within the visa holder’s control such as moving to another job for a more attractive offer or choosing to postpone commencement of employment for a holiday will not be taken as valid reasons in support of claims of making genuine efforts to fulfil the terms of the visa grant.
In brief, Section 137Q gives the Department the power to cancel the permanent residency obtained through RSMS if The main applicant does not commence or does not make genuine efforts to commence employment in the nominated role within the specified time frame,
OR
If commenced the employment but terminated it within the first two years AND does not satisfy the Department of making genuine efforts to remain in the nominated employment role for the required two years.
Are you in a sticky situation and have received a visa cancellation notification OR you are considering applying for Regional Sponsored visas,we, at migration Centre of Australia, are well-trained to handle highly complex matters. Call us on 02 4626 1002 for professional advice or email us to book a limited time offer of free consultation at info@migrationcentreofaustralia.com.au
