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    Thread: Cancelled RSMS Visa


    1. #1

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      Cancelled RSMS Visa

      Hi there,
      I was wondering if anyone could help me with a dilemma.

      I have been living in Australia for four and a half years, the last 18 months of which has been on an RSMS 857 visa. I was previously sponsored on a temporary resident visa by the same employer for ten months before this visa was granted. In the past months my working relationship with my boss has broken down somewhat and my work environment has been pretty awful. I applied for and was granted citizenship. My approval letter from the Minister for Immigration and Citizenship Chris Evans states "When you become an Australian citizen your permanent resident visa will cease". I understood this to mean that all terms and conditions applied to me as a permanent resident on an 857 visa were null and void once citizenship was finalised. As a result I handed in my notice at work. I am aware that I have not served 2 years employment under the RSMS visa but figured (apparently naively) that this would no longer be an issue.

      I am now on three weeks annual leave and received a phone call from my boss this afternoon informing me that she had called immigration to check if my obtaining citizenship and resultant departure from my job was "kosher". The official she spoke to informed her that they cannot revoke my citizenship but they can and most likely will fine me (an as yet undisclosed amount) for breaking my visa conditions. As yet my boss has not identified herself or me to immigration, although that situation could change. She has three other sponsored members of staff and understandably does not want to jeopardise their situation.

      I researched prior to making my decision to leave and found nothing to indicate this business of fining citizens for breaking prior visa conditions. Did I miss something? Or is my boss just trying to make things difficult for me?

      If her information is true do I just hope she doesn't report me for fear of her other sponsors being affected or do I do the honest thing and inform immigration or do I revoke my resignation and return to work for another six months (a viable option according to my boss).

      Any help would be much appreciated. Thank you


    2. #2

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      As far as DIAC are concerned you do not have a problem. Whether there might be a contractual issue with your employer is a matter about which you might want to take advice.
      Last edited by wrussell; 26-03-2010 at 08:05 PM. Reason: spelling
      Westly Russell Registered Migration Agent 0316072 www.pinoyau.com

    3. #3

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      Thank you very much, that is really helpful and makes me a little less worried.

    4. #4

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      Hi Maysy

      Welcome to Poms in Oz.

      I am not an expert on the intricacies of Aussie Immi Law and visas but I can suggest some people and some thoughts which I know are reliable.

      As I understand it, the Minister for Immi has the power to cancel an RSMS visa if he believes that the worker has not made a "genuine effort" to stay with the employer for the full two years. However I believe that as a matter of Policy, DIAC do not cancel RSMS visas if the person has worked for the RSMS boss for at least 12 months, which you have.

      Also, nobody in the State Offices of DIAC or on the 131 Helpline number has the power to cancel an RSMS visa. Apparently all questions of possible cancellation have to go to the RSMS Policy people at DIAC's HQ in Canberra and they alone make the decision about whether to cancel the RSMS visa or not. I understand that this is also a matter of DIAC's Policies, to ensure that DIAC's decisions are both consistent and fair.

      I am very dubious about the idea that DIAC would have the power to impose any sort of fine on the worker. I've never heard of that notion before and it sounds like a junior official inventing a complete yarn, based on nothing except what the junior official guesses that the legislation might say. Junior officials in Oz in every Department - not just DIAC - are absolute shockers for trotting out their own assumptions - very often completely mistaken assumptions - about what the legal position might be. Investigation reveals that the official did not have a clue what s/he was talking about but they speak with such an air of authority that the lay-person believes what they say.

      I am pretty sceptical about your boss's story, too. If I were an Aussie employer of an RSMS worker, I would not dream of making anonymous phone calls to anyone, for a start. I would either contact DIAC by e-mail, setting out all of the relevant details from my point of view - including identifying the company, the people involved and any DIAC reference numbers that might be relevant - and request formal advice from DIAC that way, or I would shut up like a clam as far as DIAC are concerned and tell them nothing at all. If they turned up on the premises after I had made the decision to shut up, I would simply plead ignorance and leave it at that. I can make it sound like my IQ is Minus 130 and so can most people!

      DIAC might well have the power to fine an RSMS employer who breaches the visa conditions but I am 90% sure that DIAC's remedy with the RSMS worker is simply to cancel the RSMS worker and to throw the visa holder out of Australia.

      I came across this last year, with a Teacher who was employed by the WA Dept of Education and Trainiing. He hated the place that they had sent him to. WA DET said that if he left his post in the place, they would contact DIAC and DIAC would probably cancel the RSMS visa since the chap had only recently arrived in Oz, WA DET did not say anything about anybody imposing any sort of financial fine on the visa holder.

      If the idea of a fine existed, I reckon that WA DET would have used it. An organisation like WA DET would have discovered exactly what the Law says - upside and downside - both for themselves and their workers before they ever settled on a DET Policy of using the RSMS visa at all. They would make certain that they understood every possible angle with the visa. They would NOT guess and make stupid threats. They said nothing about anybody imposing fines on anyone else, so I'm pretty sure that DIAC would not have the power to fine the RSMS visa holder. They might have the power to fine the employer, but I am not sure.

      The WA/Teacher problem was resolved amicably and quietly in the end, with DIAC's full approval. The place was somewhere that the Australian Defence Forces wouldn't send any of their own personnel to without a careful orienteering/induction course first. They would tell the staff member all about the place and what to expect from it, particularly in relation to certain people getting drunk out of their brains and either passing out or picking fights in the only shopping centre in the place - since the only grog shop is in the only shopping centre. WA DET had done absolutely nothing about telling the family - from the leafy UK - about the mining town stuck deep in the arid desert in WA.

      The family hated the place when they got there and it was obvious that they could not survive two years there. Both the Teacher and his wife were becoming mentally ill, breaking down in tears every 5 minutes and so forth. For their own sanity they could not stay where they were, and the RSMS visa contains a "medical get-out" provision. Parliament accepted that some parts of Oz are simply too much for some new migrants to Oz and that the place and its culture will make the migrant mentally ill. In those circumstances, mental illness is nobody's fault and the cure is to solve the underlying problem - which is to move the migrant away from the place.

      It was bloody for about 3 weeks because WA DET did not bother to tell the Teacher that WA DET were actually doing a lot to put matters right. In the end, WA DET came up with a package. A much larger town that is much closer to Perth, where the wife's brother lives. A brand new 4 bedroom house that was big enough for the couple and their 3 children, was air conditioned throughout, had never been lived in before and it ought to be up to scratch, unlike the house in the first town. WA DET have a way of ensuring that the WA State Government pays most of the rent when the place is hundreds of kms from Perth, so the State people would pay most of the rent. WA DET had earmarked the particular school in the new town and put the Teacher in touch with other Teachers from the new school etc. He and his wife decided to make the move and as far as I know, they are very happy in the new town. Their RSMS visa is intact because the new town fulfils all the requirements of whatever the deal between DIAC and WA DET says about the places where the DET can use an RSMS visa, so everybody is happy. Everybody is happy, Regional Australia is still being served and DIAC have taken the pragmatic line that the parties have sorted the potential mess out on their own so DIAC have gone back to sleep about the whole thing.

      DIAC made it clear at the outset that they would listen to every word that BOTH parties wanted to tell them. They would not take anybody's word for anything and they would not take anybody's side about what had gone wrong. DIAC would discover all of the relevant facts - stripping out everyone's subjective opinions - and then DIAC would stick to the facts. Was the Teacher making a "genuine effort" or not? In the new town, he loves it so he is going above and beyond the call of duty. DIAC are happy - it is the best solution for everyone, so DIAC can go back to sleep.

      Therefore I am a bit sceptical about your boss's story. However what has caused the two of you to fall out with each other, please? Is the boss in clear breach of any regulations which are designed to protect workers in Oz? If she is, I would guess that the worker-protection regulations might well include a power to fine the employer, but I am still 90% sure that there is no power to fine the employee.

      Profile | George Lombard Consultancy Pty. Ltd.

      Dobbie and Devine Immigration Lawyers Pty Ltd

      Nigel Dobbie looked after the Teacher last year. George Lombard knows a huge amount about RSMS visas as well. Either of them could tell you exactly what the Law says about your situation.

      Cheers

      Gill
      Last edited by Gollywobbler; 26-03-2010 at 10:28 AM. Reason: typos
      GilraenH and Pert like this.

    5. #5

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      Hi Gill,
      Thanks for your reply. The relationship between my boss and I has broken down really for personal reasons, not for any regulation or rule breach that I can think of. I came to the conclusion a while ago that she was running the business in a manner which I consider to be unethical, although I am 100% sure is not illegal in any way. I felt that from a moral standpoint I could not stay in the position. Up until now she supported my decision to leave although repeatedly tried to persuade me to stay.
      I am very anxious not to cause ructions in the workplace as there are other overseas workers who are relying on their sponsorships. I'm just very confused as to why any conditions applied to my permanent residency visa still apply as I am now an Australian citizen.

    6. #6

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      Hi there,
      I was wondering if anyone could help me .

      I have been living in Australia for 3 and a half years, i had 457 visa first. 30/6/2009 i applied for 857 visa ( the same company as my 457 visa) and about 3 weeks ago i granted 857 visa.i was wounder, while i was in bridge visa (from 30/6/2009 to 9/3/2010) is part of my 2 years work contract (857 visa condition)? because i have a 2 years employment contract with this company and starting date is 15/5/2009. what if at the end of my contract they don't want extend it so i wont have 2 years employment ?
      thank you
      alex

    7. #7

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      I'm just very confused as to why any conditions applied to my permanent residency visa still apply as I am now an Australian citizen.
      They don't. You do not hold a visa.
      Westly Russell Registered Migration Agent 0316072 www.pinoyau.com

    8. #8

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      Need to leave 857 early!!!!!

      Hi all!
      Please can someone give me more information than I have managed to get from diac!
      I am currently on a 857 in a regional area, I have been on it for almost a year! I did previously work for this employer for a year previously over 2 years( 6 months on a working hol visa and 6 months on second hol visa!)
      I always loved my job and was intending to stay in it for many years. I also love the regional area that I work in and i wish to remain in it for several years!

      Unfortunatly my sponsor is a small family business and a new family member has joined the company in the last year and this has created lots of conflicts which I have tried to resolve but had no luck! I know dread going to work and am making myself sick with the stress so I decided to look at my options!

      I was told in the immigration office directly that I could just leave, and again on the phone(hotline) but I am a worry wart and the person on the phone said if i wanted it I could get it in writing from an email address she gave me. But I have just had a respose saying that they could not tell me if they would take away my PR, and that I basically had to quit and my employer would have to notify them and then a case officer would decide.

      I really dont want my employer to know what I am thinking before I know if I will loose my PR as this is the most important thing to me and as it all personal family issues and the town is small it could get ugly, especially as i want to stay in this area! Basically the new member of management is a bully and makes me very uncomfetable and unhappy!

      I really want to remain in Oz, I love it here especially in my regional area where I volunteer a great deal in the community. I have also been offered serveral other jobs in this area but they are not the same position i was intially sponsered for!

      Please can anyone offer my advice, has anyone else gone through this and actually left their sponsor early??

    9. #9

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      Hi Maysy,

      Could you please let me know about your current situation of your citizenship ?
      I am going to be in similar kind of situation in next couple of months and I always thought it to be ok to NOT comply with 857 visa conditions, once you have been granted citizenship.

      Any pointers will be appreciate.

      Thanks in Advance!!

    10. #10
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      Lightbulb called immi on 31/10/11

      hi,
      i called immigration on 31/10/11 and explained my story about my employer as im on 857 RSMS and have issues at work....the person on phone adviced me to keep all records and let them know if employer is breaking the law. or even contact fair work Australia...but still no idea that if i get citizenship then can i leave employer or not or they will fine me or they can cancel my citizenship???

     

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