186 visa/unfair dismissal from work

[Maggie03]

Hi all, 

I'm hoping someone could help us. My partner has been employed as a carpenter for the last 4 years in Melbourne. We were on my student visa for a PhD originally. Last year they agreed to nominate my partner for the 186 visa. We paid for it and it's now been lodged since Nov 2016. Last week my partner was dismissed from work with immediate effect, he has ben set up and replaced by a new worker within less than 24 hours. We are seeking legal advice to appeal and the lawyers are confident we have a case. The problem is now the visa. I don't quite know how I should handle the situation. Should we cancel the visa or await the appeal first? The company hasn't cancelled the visa yet. I have been in touch with our immigration lawyer (hired by the company last year), she suggested to leave it with her and she will be in touch. It has now been 7 days and I have not heard back. The visa could be approved soon, or not, I have no idea. We are now left in a vulnerable situation, both financially and also mentally, being dismissed without warning or the usual procedures in place has left my partner feeling very 'deflated' and somewhat hopeless. Any advice would be greatly appreciated. Thank you in advance.   

[VERYSTORMY]

The first thing I would do is speak to another migration agent. 

What visa is he currently working on? Still your student visa? 

[Maggie03]

thank you for your response. We are on a bridging visa at the moment

[VERYSTORMY]

I think you need to speak to your own agent and urgently, as if the bridging visa is bridging from your student visa to the 186 and you are no longer eligible for the 186, you may not be eligible for the bridging visa. The problem with launching a case against the employer is that even if successful, they cant be forced to continue the 186 or offer any other form of sponsorship. So, potentially leaving you without a visa. He would be potentially eligible for skilled migration, but, that may take longer to put together than you can remain in Australia for. Also, making a claim against the company could take longer than you can remain in Australia.

[Maggie03]

Thanks Verystormy. I feared that might be the case. I'm trying to get info from my current immigration lawyer, as well as seeking independent advice elsewhere from another immigration agent. Our previous visa was the student visa, if the bridging visa gets cancelled then how long would we even have before having to leave the country? Would you happen to know? 

I have most paperwork ready and still valid (from the 186), my partner would likely qualify for the skilled visa. I can also apply for the postgraduate visa. We definitely have options in this regard but I need to assess which one is most likely within which time frame. Also, I think part of me still hopes the visa is approved by the time the claim against the company is through. If both parties can agree to a settlement then there will be no court, and it takes less time. I realise there are a lot of 'ifs' and 'buts' here, I still can't believe I am in this situation I guess. 

Once again thank you, every opinion or potential other options are highly appreciated.  

[MaggieMay24]

Definitely speak with an independent migration agent.  The one engaged by your husband's employer would likely be advising his employer that they need to notify DIBP that the employment relationship has ended so that would likely put an end to the current 186 application.

Your husband's main challenge may be going down the skilled visa path while in Australia.  The bridging visa usually only lasts for 28 days following the withdrawal/refusal of a visa application and he still needs to complete the skills assessment, lodge an EOI, receive an invitation and lodge his new application.  And it's quite possible he can't do that while holding a bridging visa, so a migration agent can best guide you on this.

[Maggie03]

Hi MaggieMay24. 

28 days is not exactly long. I guess we have to get a postgraduate visa for myself instead then. My partner could always apply for his own skilled visa later down the track, once we have more time (and money too). It's an option to consider at last. 

Out of interest- he had his skills assessed in January this year. Could you use this to apply to any other visa? Is there an 'expire date' on this assessment?

Thanks heaps,

M 

[Raul Senise]

I think you should heed MaggieMay's advice and obtain an independent assessment of your situation. Consider the following points:

• If your current Agent is also the Agent for the employer, they may be facing a conflict of interest situation. It would be difficult to represent the best interests of both your partner and the employer in this situation;
• The timelines you have stated do not seem to make sense. You advise that you applied for a subclass 186 from a student visa. As such you would have applied under the Direct Entry Pathway. Under the Direct Entry pathway you require a skills assessment at the time of lodgement. You state that the application was lodged in Nov 2016, yet the skills assessment was obtained in January this year;
• Be mindful that to qualify for a Graduate Skilled Visa (Subclass 485) there are time limit requirements as to when you last held a student visa and when you finished the course.

[Maggie03]

Hi Raul, thanks for your message. I think you make a really valid point about the 'conflict of interest'. It would also explain their current behaviour. I have an appointment with another immigration agent tomorrow, hopefully I can get advice on what to do next. 

I mixed up the dates re the skills assessment. My partner had his skills assessed in September, visa was lodged end of Nov, and medicals and police checks were submitted in January/February. 

As for the 485- my student visa expired in March this year. My thesis is currently under examination and due to be completed within the next 2 weeks, graduation in December. This is a normal time frame for PhDs, hence we are often employed from the moment we submit the thesis (rather than after graduation). I will look into this though, thanks for the tip. The University also said they would sponsor me (although I need to look into the type of visa/what changes were made to the conventional 457). I have been employed with them since February this year (as a project coordinator for an international phd program as well as a research officer/scientist). 

Thanks again everyone for your insights, very helpful and much appreciated.