Are you a Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) holder? The employer sponsored visas have been increasingly tricky and difficult to obtain. Outside the typical grounds for cancellation such as being charged of a serious criminal offence, what are your obligations to make sure you keep your visa safe? You may know that an RSMS 187 visa holder must stay employed in the position for which their visa was granted with their sponsor for at least two years, but as always, migration law is always complex when getting down to the nitty gritty.
Grounds for cancellation:
- The RSMS 187 visa holder has not commenced employment with their sponsor in their nominated role for which their visa was granted within a specified timeframe and no genuine effort was made to commence employment
- The RSMS 187 visa holder commenced employment which their sponsor in their nominated role for which their visa was granted and the employment terminated within two years from the day the RSMS 187 visa holder commenced employment and no genuine effort was made by the RSMS 187 visa holder to be engaged in employment for the full two years
Will the Department of Home Affairs find out? Don’t take your chances. There are a variety of sources available to the DOHA such as information from Centrelink, the Australia Tax Office (ATO), other government agencies and sources.
Non commencement of employment
If the visa holder does not commence employment in their nominated position with their sponsor company within a the following timeframes, they are liable to have their visa cancelled.
Visa holder outside Australia: Six months from the date the visa holder first entered Australia
Visa holder in Australia: Six months from the date of the visa grant
Non completion of two years
The two years that an RSMS 187 visa holder must fulfil with their sponsoring employer in the nominated position for which their visa was granted does not start from the date of their visa grant, rather the date from which they commenced employment. Should the visa holder be terminated from their role with their sponsoring employer they may have their visa cancelled depend upon the reason for the termination. Most of the time the department becomes aware of this non completion of the two years from a disgruntled former sponsor or even a co-worker out for revenge. In one case the department investigated the employment duration after a citizenship application exposed an issue regarding employment history.
Annual leave is considered to count towards the two years. In cases where the visa holder goes on Leave Without Pay (LWOP) that has been agreed upon with the employer, they are not taken to have ceased employment.
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 (subclass 457) cannot count towards the two years. The timer starts from when the visa holder begins work whilst holding their RSMS 187 visa.
In both grounds for cancellation, the lack of genuine effort is the deciding factor. Should the RSMS 187 visa holder have failed to commence employment or fulfil the requisite two years of service, they would likely not be penalised if they have made a genuine effort and for reasons outside their control, have failed to do so.
Such reasons must be compassionate or compelling and not something that the visa holder could have preempted. The factors that the DOHA will take into account are:
- If the RSMS 187 visa holder’s reasons for, and/or circumstances leading to the failure to commence work or to complete the two year employment period, such as if unexpected family or personal circumstances came into play
- The possibility that the RSMS 187 visa holder has in collusion with the employer, arranged the visa sponsorship as a means to the visa holder to enter or remain in Australia
- The period of the RSMS 187 visa holder’s employment with the employer prior to the termination of employment where the grounds for cancellation in concern are that of the non completion of the two year employment period
- Any other matter that is relevant to the commencement of termination of the RSMS 187 visa holder’s employment
An example of an RSMS 187 visa holder meeting one of the grounds for cancellation having not made a genuine effort include the circumstance where they have not commenced employment or left employment prior to the completion of the requisite two year period because they have been taken up a better employment offer by another employer.
Examples of an RSMS 187 visa holder failing to commence employment or not completing their two year employment period and have made a genuine effort to do so but were unable to due to compassionate or compelling circumstances include where the position with their sponsoring employer was not otherwise filled as it because redundant due to a serious downturn in business activity or due to the financial loss, bankruptcy or closure of the sponsoring business.
Employer terminating the RSMS 187 visa holder
What happens if a RSMS 187 visa holder has not managed to commence employer or complete their two year employment period because their sponsoring employer decided to terminate their employment? The RSMS 187 visa holder in this situation may still be liable to have their visa cancelled. This type of scenario falls back on the issue of making a genuine effort and is a very grey area. If an employee has had multiple warning for not turning up to work on time the department may conclude that the visa holder did not make a genuine effort to stay there for the required two year period.
For those out there who may feel they are being taken advantage of by their employer the best thing to do is to make a complaint to the Fair Work Commission. In that way if you then decide you have to leave or you have been unjustly terminated, there will be a record of the circumstances declared to another government department.
Reasons not to cancel
Cancelling a RSMS 187 visa holder’s visa when there are grounds for cancellation is discretionary rather than mandatory. This means that even if the RSMS 187 visa holder has not commenced employment or not completed the two year employment period and also have not made a genuine effort, the DOHA may still choose not to cancel their visa. Factors that the DOHA would take into account when making this judgement include:
- The purpose of the RSMS 187 visa holder’s travel to and stay in Australia, such as if the visa holder has a compelling need to travel to or remain in Australia
- The extent of the RSMS 187 visa holder’s compliance with visa conditions, such as if visa holder has otherwise complied with visa conditions now and on previous visas
- The degree of hardship that may be caused to the RSMS 187 visa holder and any family members, such as if any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision
- The circumstances in which the ground for cancellation arose, such as extenuating circumstances beyond the visa holder’s control that led to the grounds existing (as covered by the Genuine Effort section above)
- The visa holder’s past and present behaviour towards the DOHA, such as whether they have been truthful and cooperative in their dealings with the DOHA
- Whether there are persons in Australia whose visas would, or may, be cancelled if the RSMS 187 visa holder’s visa was cancelled
- Whether there are mandatory legal consequences to a cancellation decision, such as:
- Whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia in accordance with Australia’s non-refoulement obligations
- Whether the cancellation of the RSMS 187 visa holder’s visa will result in the person being unable to make another valid application for a visa
- Whether, upon cancellation, the person would become an unlawful non-citizen and is liable to be detained or removed from Australia
- Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, such as if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children
- Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where the person faces persecution, arbitrary deprivation of life, the death penalty, torture, cruel, inhuman or degrading treatment or punishment
- Any other relevant matters
These are not get-out-of-jail-free cards. Don’t attempt to avoid your RSMS 187 visa obligations by banking on reasons such as a family member facing difficulty to avoid a visa cancellation. That is neither right nor foolproof.
Don’t worry, the DOHA will not cancel one’s visa out of the blue. Should they become aware of grounds for cancellation, they will issue you with a Notice of Intention to Take Action. This will alert you and explain how that you present your case to the DOHA to explain your situation.
If the RSMS 187 visa holder is in Australia, the DOHA will provide the visa holder with 28 calendar days from the date the notice is given to comment. If the RSMS 187 visa holder is outside Australia, the DOHA will allow up to 70 calendar days from the date the notice is given. There is no leeway to argue on when you may have read the notice.
When investigating a RSMS 187 visa holder who has not commenced employment or did not complete the two year employment period, the DOHA will allow the visa holder to present their case and will take into account all information provided by the employer, the visa holder and any other sources.
It is always good practice to store any information you have in relation to your visa or that which might affect your visa, especially if you begin to run into difficult situations, such as correspondence between yourself and your employer, documents or other information pertaining to your difficulties, take care as well to store the dates along with any such material.
After considering all the facts, the DOHA will then send you a notice of their decision.
Have you landed yourself in hot water or are currently facing circumstances outside your control that would mean that you meet one of the grounds for cancellation? Or would you like to learn more about employer sponsored visas? Australian Immigration Law Services have a vast experience in both helping applicants gain their employer sponsored visas, as well as helping visa holders who have faced visa cancellation. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.