Sacked on rsms after only a week

[dregambino]

Hi Guys,

 

I have question regarding 187 Visa.

 

Here's my situation:

 

Last July 7, 2014, my 187 visa application has been approved. Then after a week later, my employer sacked me. The company gave me two weeks notice because I've been working for almost 3 years and my last day of work was July 29, 2014. Until now, im still looking for work here in gladstone and other regional places around queensland but still no luck.

 

My question: Is it possible or am i allowed to apply or get a work in Cities because its very hard to find same job in regional areas?

 

I hope it make sense. Thanks guys!

[blossom]

Hi Guys,

 

I have question regarding 187 Visa.

 

Here's my situation:

 

Last July 7, 2014, my 187 visa application has been approved. Then after a week later, my employer sacked me. The company gave me two weeks notice because I've been working for almost 3 years and my last day of work was July 29, 2014. Until now, im still looking for work here in gladstone and other regional places around queensland but still no luck.

 

My question: Is it possible or am i allowed to apply or get a work in Cities because its very hard to find same job in regional areas?

 

I hope it make sense. Thanks guys!

 

They sacked you or made you redundant? If they sacked you I would be VERY worried. It is part of your visa conditions that you stay in the job for two years. You and your employer agreed to it. Immigration are linked to the tax office, so they can see if you are not working there any more. Leaving a WEEK after your visa grant looks very dodgy indeed. It is going to look to immigration like you got sacked on purpose.

 

I would be consulting a good MARA agent ASAP to work out what you can do in this situation to try to keep your visa.

[dregambino]

Hi blossom,

 

Yeah mate sorry, my employer laid me off due to redundancy. I know im still lucky because i got my residency before that. But now, im having problem getting new work. That's why i wonder if am i allowed to get a job in major cities because its hard to find work same as mine here and in regional areas.

 

thanks!

[Pumpkin]

Hi blossom,

 

Yeah mate sorry, my employer laid me off due to redundancy. I know im still lucky because i got my residency before that. But now, im having problem getting new work. That's why i wonder if am i allowed to get a job in major cities because its hard to find work same as mine here and in regional areas.

 

thanks!

 

To be honest I think being made redundant a week after visa grant looks very dodgy too. Like the company are just helping people get visa. I certainly would not be rocking the boat by looking for work outside a regional area.

[Visa Law]

The relevant part of the legal test is outlined in s 137Q(2)(b) of the Migration Act, which allows the Department (DIBP) to cancel the visa if:

... the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

 

The required period is two years. Given the short space of time between visa grant and termination of employment, a case officer might infer that you contrived your own dismissal and therefore failed to make a "genuine effort". As far as I am aware, RSMS cancellations are not all that common. I have dealt with one matter in which the visa holder was sacked two weeks after visa grant, and we managed to avoid cancellation by showing that he had made a genuine effort. (In spite of his efforts he was, unfortunately, poorly equipped by his Australian study to perform his job adequately - and DIBP accepted this.)

 

It is worth bearing in mind the following extract from policy:

 

A visa holder is unlikely to be assessed as failing to have made a genuine effort where the failure to commence or complete the two year employment period was because of a situation beyond the visa holder's control. Examples include:

*the position was not filled or did not remain viable due to a serious downturn in business activity or

*financial loss, bankruptcy or closure of the business.

 

If you have evidence that your termination was a direct result of a downturn in business - e.g. a glowing reference admitting that you were let go for that reason - then this will be helpful. The fact that you worked for them for almost three years is also inconsistent with an "RSMS scam" - the circumstances would be far more suspicious if you had no real history with the employer. If your employer suffered a genuine downturn in business, this should not be difficult to prove by reference to profit and loss statements covering, say, the 11-12, 12-13 and 13-14 financial years. However, they would need to be willing to give you (or your lawyer - they can provide it on condition that you don't see it) copies of these or other relevant financial documents.

 

While moving out of a regional area does not appear to be legally relevant per se, if you headed for the nearest major city the day after employment was terminated, this would arguably be more consistent with you having contrived your own dismissal. On the other hand, your claim to have made a genuine effort is probably more likely to be seen as credible if you try and remain in the same regional area and industry.

 

One other thing to bear in mind is whether or not it will actually come to DIBP's attention. The above client's visa was only cancelled when his employer nominated another employee for the same position, alerting DIBP to the termination of his employment. I am not sure that data matching between the ATO and DIBP is likely to trigger an "alarm" upon termination.

 

There does not appear to be a positive legal obligation to inform the Department of the end of the employment relationship, and it is not a foregone conclusion that cancellation will be considered. You should ensure that DIBP has your current address so that if they receive information from another source and consider cancellation, you will receive the notice of intention to consider cancellation in time to do something about it.

 

If you decide NOT to disclose the termination, you may want to consider "protecting" your right to stay in Australia permanently by a) applying for citizenship as soon as possible (basically the first date after 7 July 2015 when you can satisfy the four-year residence test); and b) not leaving Australia until your citizenship is granted (if you are onshore if/when the visa is cancelled, you can apply to the MRT to have the decision reviewed).

 

However, you may decide that you prefer to deal with the issue pre-emptively and tell DIBP of your own volition. If you move to a major city, it may also be difficult to keep DIBP aware of your address without effectively admitting that you no longer work in a regional area.