barker Posted September 20, 2017 Share Posted September 20, 2017 Here is the official guidance document from the DIBP as of the date of this post. Consult a migration agent before you make any decisions. Don't just quit your job and throw away all that hard earned PR. A097 PAM3: Act - Visa cancellation instructions - Regional sponsored employment visas About this instruction Contents This departmental instruction, which deals with cancellation of regional sponsored employment visas under s137Q of the Migration Act, comprises 3 parts: General information The cancellation process Letters and forms. Related instructions Nil. Latest changes Legislative Nil. Policy This instruction, which is part of the centralised departmental instructions system (CDIS), was reissued on 10 October 2015 and has been completely revised. Owner General Cancellation Support Section National Office. Document ID VM-992 Contents Introduction About this instruction RSEV cancellation delegations RSMS background RSMS visas to which subdivision GC applies Grounds for cancellation Employment not commenced Employment terminated Genuine effort Employer initiated dismissals Substantiation of information Assessment of the information Cancellation grounds substantiated Proposing cancellation Notice of proposed cancellation Common law natural justice considerations Notice must be in writing Prescribed periods for representations or responses Response by the visa holder Making a decision When can a decision be made Deciding if there is a ground for cancellation Assessing any reasons not to cancel Deciding whether to cancel Notification of decision Notification must be in writing Visa holder to be notified Review of decision When cancellation takes effect Recording the decision Consequences of cancellation Person becomes an unlawful non-citizen Person liable to detention and removal Person subject to a s48 bar Consequential cancellation Exclusion periods Letters and forms Introduction About this instruction This instruction applies to the cancellation of regional sponsored employment visas in circumstances specified in s137Q of the Act. It describes subdivision GC cancellation policy and procedures for the Regional Sponsored Migration Scheme (RSMS) visa subclasses. Currently these subclasses are: AN-119 (Regional Sponsored Migration Scheme) visa RN-187 (Regional Sponsored Migration Scheme) visa BW-857 (Regional Sponsored Migration Scheme) visa Only these visa subclasses meet the definition of regional sponsored employment visas in s137Q(3), for the purposes of subdivision GC. Although all Employer Nomination Scheme (ENS) and RSMS visa subclasses meet s137Q(3)(a) requirements (because these visa subclasses belong to visa classes with “Employer Nomination” in their title) only the RSMS visa subclasses are currently prescribed by regulation2.50AA of the Migration Regulations 1994 (the Regulations) for s137Q(3)(b) purposes. RSEV cancellation delegations Only the Minister, or a departmental delegate of the Minister may exercise the powers in s137Q, s137R, and s137S, of the Act. Do not assume that because an officer is delegated under one power that they are delegated under other related powers. Officers must ensure that they hold the necessary applicable delegation before exercising the powers listed immediately above. Current ministerial delegations are available via Bordernet - refer to Governance Instruments of Delegations and Authorisations Ministerial and Secretarial series. Although these powers can be exercised by the Minister personally, this instruction is written in the context of these powers being exercised by departmental ministerial delegates. RSMS background The RSMS is a state-specific migration mechanism that places skilled migrants into regional and rural Australia where, traditionally, the skilled migrant intake has been disproportionately low. This scheme was established in recognition of the fact that regional Australia has difficulty in attracting and retaining skilled workers. The purpose of the cancellation power at s137Q is to safeguard against any potential misuse of the regional sponsored migration scheme and discourage persons who do not have any genuine intention of settling in regional or rural Australia. Subclasses 119 and 857 were repealed from the Regulations on 1 July 2013, and after that time no new applications could be made (other than applications made under regulation 2.08, 2.08A or 2.08B). However, applications that were made prior to the repeal can still be considered and granted. To qualify for the RSMS visa, the applicant must: be nominated for an appointment that has been approved by a regional certifying body and that appointment must provide at least two years full-time employment hold a relevant Australian equivalent trade, diploma or higher qualification depending on the visa applied for, be less than 45 or 50, and meet the applicable requirement to have functional English, vocational English or competent English. The requirements for age, qualifications or English language may be waived in certain circumstances. RSMS visas to which subdivision GC applies The provisions of subdivision GC apply only to: RSMS visas for which application was made after 1 July 2001 and RSMS visas for which application was, between 1 July 2001 and 30 June 2012, deemed under regulations 2.08C or 2.08CA. Grounds for cancellation Section 137Q of the Act provides that a regional sponsored employment visa may be cancelled if: the Minister (or delegate) is satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed in the Regulations (see Note immediately below) and the visa holder does not satisfy the Minister (or delegate) that they have made a genuine effort to commence that employment within that period or the visa holder commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the Regulations) and the employment terminated within the period (the required employment period) of two years starting on the day the visa holder commenced that employment and the visa holder does not satisfy the Minister (or delegate) that they have made a genuine effort to be engaged in that employment for the required employment period. Note: Under regulation 2.50AA the specified periods are: for an AN-119 visa, or for an RN-187 visa granted to a person outside Australia, six months from the date on which the holder of the visa first entered Australia for a BW-857, or for an RN-187 visa granted to a person in Australia, six months from the date of visa grant. The main basis for considering visa cancellation is information provided by the employer. The onus is on the employer to provide that information. In some circumstances information may be received from Centrelink, other government agencies, or other sources. This information is to be referred to the General Cancellation Network and the matter investigated, in the first instance, by contacting the employer. It is expected that investigations will occur only as a consequence of the department receiving information of note. This does not, however, prevent investigations or officers from initiating their own enquiries in respect of the visa holder, if they choose to do so. Employment not commenced If the employer provides information that the visa holder did not commence employment or failed to commence employment within the specified period, the delegate may issue a notice of proposed cancellation. For more information, refer to Proposingcancellation. Employment terminated If the employer provides information that the visa holder has permanently ceased to work for the employer, the delegate may issue a notice of proposed cancellation. For more information, refer to Proposing cancellation. Circumstances may arise where a visa holder is on leave without pay (LWOP) during the required two year employment period. Where an employer has approved LWOP, it is not generally regarded as a break in the continuity of service. Approved LWOP is also a standard condition in most awards. Therefore, any LWOP that has been approved by the employer is not to be regarded as a termination of employment. Previous periods of employment for the same employer whilst the holder of another class or subclass of visa (such as a UC-457 visa) does not count towards the required period of employment. However, they may be relevant in assessing genuine effort. Genuine effort In order for the grounds for cancellation at s137Q(2) to be made out, not only must the visa holder have not commenced employment or completed the required two year employment period, the visa holder must also have not satisfied the delegate that they have made a genuine effort to commence employment, or to complete the required two year employment period. Note: The onus is on the visa holder, through their representations, to satisfy the delegate that they have made a genuine effort to commence employment or complete the required employment period. It is expected that the visa holder will commence employment or complete the required employment period, unless there are compassionate or compelling circumstances that prevented them from doing so. For example, a person cannot be considered to have made a genuine effort where they have ceased employment because a more attractive employment offer from another employer has been made. In assessing whether the visa holder has made a genuine effort, the delegate should consider: the visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances) the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and any other matter which is relevant to the commencement or termination of the employment. A visa holder may be able to satisfy the delegate that they have made a genuine effort if 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. A situation intentionally created by the visa holder that results in termination of their employment would not be considered a genuine effort. Employer initiated dismissals If a visa holder was dismissed by the employer (that is, the visa holder did not terminate their employment of their own volition) the delegate may still not be satisfied that the visa holder made a genuine effort to complete the required two year employment period. For example, a visa holder may have been dismissed because they were not working according to the expectations of the employer based on the visa holder’s skills and/or experience, or the visa holder may have deliberately damaged or sabotaged the employer’s business to cause the dismissal. If there is a disagreement between the visa holder and the employer concerning the circumstances of the dismissal, and the visa holder is claiming that they have made a genuine effort, delegates should assess whether there is any evidence to support the visa holder’s claims. If the termination of employment is the subject of proceedings before the Fair Work Commission, delegates are under no obligation to await the outcome of those proceedings. However, if delegates are of the view that the matter being heard is critical to a determination on whether the visa holder made a genuine effort (such as unfair dismissal or unlawful termination disputes), and the delegate considers on the available evidence that there is a strong chance of a ruling being made in favour of the visa holder, delegates may postpone making a decision until the conclusion of the hearings. The decision to cancel the visa is between the department and the visa holder, and is based on the facts relating to the period of their employment and the reason why they did not complete their work contract with the employer. While an employer may provide information that an employee has not made a genuine effort, the employer has no further involvement in the process. Substantiation of information When the department becomes aware that grounds may exist under subdivision GC for the cancellation of a visa holder’s regional sponsored employment visa, officers are to attempt to substantiate the information. All persons should be checked against departmental systems such as the Client Search Portal (CSP) and departmental files. If the information has not come from the employer, the officer should contact the employer to confirm the situation. However, there is no power to compel an external agency, which is in a relationship of trust with the visa holder, to provide any information and officers should respect that relationship. If a third party provides information to the Department in-confidence, officers must consider whether the information and/or its source can be disclosed to the visa holder as part of the natural justice process, or whether only the gist of the information can be disclosed. For more information, refer to Common law natural justice considerations. Assessment of the information Delegates should make a preliminary assessment of whether there is non-compliance with subdivision GC. If the visa holder has not commence work, it is important to ensure the six month period has elapsed: for an AN-119 visa, or for an RN-187 visa granted to a person outside Australia – this is six months from the date on which the holder of the visa first entered Australia for a BW-857, or for an RN-187 visa granted to a person in Australia, this is six months from the date of visa grant. The delegate must carefully review the visa holder’s circumstances and employment information when considering cancellation to ensure the most accurate information is available. The delegate must make file notes of all information received and action taken, including correspondence with the visa holder and the outcome of further investigations. File notes are to be dated and placed on the visa holder's personal file. The delegate may choose not to proceed with cancellation because preliminary investigations reveal that the suspected non-compliance is unsubstantiated. Cancellation grounds substantiated If information received from the employer or other sources is substantiated such that the delegate proposes to cancel the visa, the visa holder must be given written notice under ss137R, Proposing cancellation Under s137R, the visa holder must be given a written notice stating that the Minister proposes to cancel the visa and inviting the person to make representations concerning the proposed cancellation. The notice of proposed cancellation provides the visa holder with an opportunity to show either that they did commence employment or complete the required employment period, or to satisfy the Minister that they have made a genuine effort to commence or complete that employment. Notice of proposed cancellation Section 137R provides that prior to cancelling a visa, the Minister must: give the visa holder written notice stating that the Minister proposes to cancel their visa invite the person to make representations to the Minister consider any representations received within the prescribed period and give the person written notice if the Minister decides not to proceed with the cancellation. For related policy and procedure, refer to PAM3: Act - Code of procedure - Notification requirements - Notification at post-grant stage - Regional sponsored employment visa cancellation. For the relevant templates officers are to use ECS or the SI12 approved templates in TRIM (ADD2015/912939). Common law natural justice considerations Common law natural justice applies to any decision to cancel a visa under s137Q. Common law natural justice requires a decision-maker to put to the affected person adverse information that is credible, relevant and significant, and give the person an opportunity to comment on that information before a decision is made. In addition to the requirements in s137R, the notice of proposed cancellation must include any information relevant to the consideration of cancellation, particularly information provided by third parties. For example, any claims made by the employer in reporting the visa holder’s failure to fulfil their contractual obligations must be put to the visa holder under natural justice principles. If the proposed cancellation is based on information provided to the department in-confidence, such as a tip-off letter, officers should consider whether the information and/or its source can be disclosed. This may mean only the “gist” of the information can be put to the visa holder. Notice must be in writing For policy and procedure on notification, refer to PAM3: Act - Code of procedure - Notification requirements - Notification at post-grant stage - Regional sponsored employment visa cancellation. Prescribed periods for representations or responses If the notice is given in Australia, the prescribed period for making representations is 28 calendar days after the notice is given. If the notice is given outside Australia, the prescribed period for making representations is 70 calendar days after the notice is given. For policy and procedure on the prescribed periods for representations or responses, refer to PAM3: Act - Code of procedure -Notification requirements - Notification at post-grant stage - Regional sponsored employment visa cancellation. Response by the visa holder It is policy that officers request the visa holder to make any representations in writing, however, all representations must be considered, irrespective of whether they are given orally or in writing. The delegate may make a decision at any time after the prescribed time period has passed, regardless of whether or not a response has been received - refer to Prescribed periods for representations or responses. The delegate must consider any response received within the period set out in the notice. Further, it is policy that any representations received after the period for responding has elapsed, but prior to a decision being made are also to be considered. A response from the visa holder that was received after the decision has been made, and provided the decision was made after the prescribed time period, cannot be taken into consideration. Making a decision When can a decision be made A decision on whether to cancel a visa cannot be made until after one of the following two events occurs: the prescribed time for responding to the notice of intention to consider cancellation has passed - refer to section Prescribed periods for representations or responses the visa holder provides written advice that they do not wish to respond. Officers will need to include this in the visa holder’s case file. In making the cancellation decision, the delegate is required to consider all available evidence as well as any representations from the visa holder in order to determine: whether there are grounds for cancellation and whether there are any reasons not to cancel the visa and whether the reasons for not cancelling outweigh the reasons for cancelling. Cancellation of visas under s137Q is discretionary, not mandatory. This means that even if there are grounds for cancelling the visa, the delegate can choose to exercise their discretion not to cancel. Deciding if there is a ground for cancellation After considering all of the available evidence (including any representations from the visa holder), delegates must determine if grounds exist for cancelling a visa under s137Q. Under s137Q(1), the delegate may cancel a regional sponsored employment visa held by a person if: the delegate is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the prescribed period and the person does not satisfy the delegate that they have made a genuine effort to commence that employment within that period. Under s137Q(2), the delegate may cancel a regional sponsored employment visa held by a person if: the delegate is satisfied that the person commenced the employment referred to in the relevant employer nomination (whether or not within the prescribed period) and the employment terminated within the period (the required employment period) of two years starting on the day the person commenced that employment and the person does not satisfy the delegate that they have made a genuine effort to be engaged in that employment for the required employment period. Assessing any reasons not to cancel Even if the delegate determines that grounds for cancellation do exist, there may be circumstances particular to the visa holder that need to be considered when assessing whether to exercise the discretion to cancel the visa under s137Q. These circumstances may be addressed under the following factors: the purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia the extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions the degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or 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: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the control of the visa holder the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department) whether there are persons in Australia whose visas would, or may, be cancelled under s137T 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 there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198 whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation - as two examples: 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 - for more information, refer to: o Australia’s international obligations (which is in the context of cancellation powers other than s137Q) and o PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of 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 - for more information (which is in the context of cancellation powers other than s137Q), refer to Australia’s international obligations any other relevant matters. Deciding whether to cancel After considering whether there are grounds for cancellation, whether there are any reasons not to cancel the visa and whether the reasons for not cancelling the visa outweigh the reasons for cancelling, delegates must decide whether to proceed with cancellation. Delegates must complete a decision record in either ECS or using the approved template in TRIM (ADD2015/912912). If a decision is made to cancel the visa, the person must be notified of the decision under s137S. If a decision is made not to cancel a visa, the visa holder must be notified in writing by the delegate specified under s137R. Refer also to PAM3: Act - Code of procedure - Notification requirements - Notice of decision not to cancel - s137R. Notification of decision Notification must be in writing For policy and procedure on notification, refer to PAM3: Act - Code of procedure - Notification requirements - Notification at post-grant stage - Regional sponsored employment visa cancellation. Visa holder to be notified Delegates must use ECS or the SI12 approved notification templates in TRIM. Notification of cancellation under s137Q (ADD2015/1005557). Notification of decision not to cancel under s137Q (ADD2015/912924). For policy and procedure, refer to PAM3: Act - Notification requirements - Notification at post-grant stage - Regional sponsored employment visa cancellation. Review of decision Under s338(3) of the Act, a decision made under s137Q to cancel a regional sponsored employment visa held by a person who is in the migration zone (and not in immigration clearance) at the time of the cancellation is a Part-5 reviewable decision . Under regulation 4.10(1)(b), if the person wishes to seek merits review of that decision they must apply to the AAT for review within 7 working days after the day on which the notification of the decision is received. Refer also to: PAM3: Act - Merits review - Merits review by the MRT - Guide for primary decision makers] PAM3: GenGuideA - All visas - Visa application procedures - When notification takes place. Processing the decision When cancellation takes effect Under s82 of the Act, a visa that is cancelled ceases to be in effect immediately upon cancellation. Under s137S(2) of the Act, a failure to give notice of the decision does not affect the validity of the decision to cancel. Record the decision The cancellation decision is taken to have been made on the day and at the time the record is made by the delegate (refer to s138). This applies to written decision records and also electronic records in the department’s systems. The cancellation must immediately be recorded in the Cancellation Portal (or ICSE if the Cancellation portal is unavailable). Consequences of cancellation Person becomes an unlawful non-citizen If a visa is cancelled and the person concerned is in Australia, they will become an unlawful non-citizen unless they hold another visa that is in effect - refer to PAM3: Act - Visa cancellation - General cancellation powers (s109, s116, s128, s134B and s140) - Consequences of visa cancellation. Person liable to detention and removal If the person is in the migration zone, and they do not hold another visa that is in effect, then they must be detained and removed from Australia. Person subject to a s48 bar If the person is in the migration zone, does not hold a substantive visa and held a visa that was cancelled under s137Q, then they may only apply for a visa of a class prescribed for the purposes of s48 of the Act, but not for a visa of any other class. Consequential cancellation When a decision has been made to cancel a person's visa, a visa held by another person because they are a member of the family unit is also cancelled by operation of law under s137T of the Act. There is no discretion not to cancel the visa of a member of the family unit even if extreme hardship may result. Consequential cancellations must be recorded in the Cancellation Portal (or ICSE if the Cancellation portal is unavailable). Section 137T also provides that where cancellation of the visa of a person (the primary visa holder) is set aside, cancellation of the visa held by another person being a member of the family unit of the person is also set aside. See also PAM3: Act - Code of procedure - Notification requirements - Notice of consequential cancellation - s140. Exclusion periods No Schedule 4 or Schedule 5 exclusion period applies to a person whose visa has been cancelled under s137Q , or for a person whose visa was consequentially cancelled under s137T. However, under s48, a person who is in the migration zone and has had their visa cancelled under s137Q or s137T cannot apply for a visa unless it is of a class prescribed in regulation 2.12. Letters and forms Delegates must use the approved ECS generated templates or the SI12 approved templates available in TRIM. For the TRIM templates, see: Notice of intention to consider cancellation under s137Q (ADD2015/912939) Decision record s137Q (ADD2015/912912) Notice of decision not to cancel under s137Q (ADD2015/912924) Notification of cancellation under s137Q (ADD2015/1005557). END OF DOCUMENT Link to comment Share on other sites More sharing options...
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