Got your permanent Regional Sponsored Migration Scheme (RSMS) visa (subclass 187)? We know how hard you worked to get it, don’t lose it. Unlike most other permanent visas, the RSMS 187 visa had more conditions attached that could result in the cancellation of your visa:
Not commencing employment in your nominated position with your sponsoring employer within the stipulated time frame
Not completing a two year term in your nominated position with your sponsoring employer
Non commencement of employment
If the visa holder does not commence employment in their nominated position with their sponsor company within a stipulated time, they are liable to have their visa cancelled. The time frames are as follows:
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
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.
Non completion of two years
Should the visa holder be terminated from their role with their sponsoring employer, they may have their visa cancelled. It is an obligation for the visa holder to stay in their nominated position for at least two years.
In calculating the period of employment, annual leave is considered to count towards the two years. In the case were the visa holder goes on Leave Without Pay (LWOP) that has been agreed upon with the employer, they are not taken to have broken their 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 (subclass 457) cannot count towards the two years. The timer starts from when the visa holder begins work whilst holding their RSMS 187 visa.
Dismissal by the employer
Even if the visa holder did not intentionally fail to complete their obligations and have been terminated from their role, their visa may still be liable for cancellation. It doesn’t seem fair, so why so? This is to prevent the possibility of a visa holder performing badly or worse, sabotaging the business, so as to create a situation where they are able to leave their obligation of completing two years of service. Further to this, the visa holder is granted their visa on the basis of their being able to perform in their nominated role.
Of course if the visa holder was unfairly dismissed or there were 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.
Exceptions
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:
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 the employment was genuine or if the employer and visa holder created an arrangement for the sake of obtaining a visa
Any other relevant details
Compassion and/or compelling circumstances could include and are not limited to:
The visa holder or a family member 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 to be not having made a genuine effort to fulfil the terms of the visa grant.
Are you in a sticky situation and have received a visa cancellation notification? Speak to a qualified agent to see how they can help you.
