Hitchooooo Posted January 16, 2019 Share Posted January 16, 2019 Hi there Last December I’m fired from my sponsor company. Employer has been abusing her sponsor power and been counting something beyond my control as my performance. Like while I was on annual leave or bereave I was told that I have been underperformance. I am a massage therapist and when clients not showing up or cancel or even receptionist failed to fill up the bookings, it regarded as my performance. After I had over used injury and applied workers compensation. Very the next day I was fired. Applied 187 on 26th Aug 17. I stared to work 1st August 17 and terminated 18th December 18. It seems like PR is getting granted around February or March. It seems like so close... I have applied unfair dismissal to fairwork commission through my workers union. Also reported bullying and harassment plus unsafe work environment to Worksafe . I also reported to fair work ombudsman issues around money, as situation I felt like we all sponsored workers have been taken advantage from employer. Any one has any idea what would happen? Is there any way I could manage to still get PR granted ? Quote Link to comment Share on other sites More sharing options...
boo-yaa Posted January 17, 2019 Share Posted January 17, 2019 If you are no longer working for your sponsor - I cant see how you can still get PR. Irregardless of circumstances around you leaving. Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 17, 2019 Author Share Posted January 17, 2019 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. Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 17, 2019 Author Share Posted January 17, 2019 >boo yaa There is genuine effort circumstances can be considered when it comes to cancellation... Quote Link to comment Share on other sites More sharing options...
Toots Posted January 17, 2019 Share Posted January 17, 2019 @Hitchooooowhat do you mean by annual leave or bereave and what sort of injury did you sustain during the 17 months working for that employer? Did you actually receive workers comp? Quote Link to comment Share on other sites More sharing options...
boo-yaa Posted January 17, 2019 Share Posted January 17, 2019 1 hour ago, Hitchooooo said: >boo yaa There is genuine effort circumstances can be considered when it comes to cancellation... Your visa has not been granted yet. As far as I understand - the genuine effort Circumstances - relate to those who already hold PR. Quote Link to comment Share on other sites More sharing options...
ring3018 Posted January 17, 2019 Share Posted January 17, 2019 Booya is right. If you were granted a PR. You can leave work if you can prove you are being bully at work. In this case, your PR is still processing. So the cancellation ground doesn't work for you Sadly you will need to find another employer and start from scratch Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 17, 2019 Author Share Posted January 17, 2019 @Toots yes I’m still in the process of work comp called “differ “ period. When I went to back my country and also when I had a leave for my grand further funeral. After I came I had a performance meeting. And she said your work performance is not meeting the contractual agreement. Apparently I supposed to see 150 clients a month and these month my performance was not enough. @boo-yaa @ring3018 I see. I’ve been researching and the situation hopefuly falls into the category of exemption. Thanks for sharing your view. It helps me to prepare for next journey. But 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. I’m hoping to find someone that have been going through similar situations and made through to PR. Id like to believe that my situation will fall into exemptions. our visa grant should be in one month. Company has been bullying and harassing the employee Company breached fair work act and work return act by firing me and co worker right after applying work compensation Not paying correctly have been reporting to ombudsman and worksafe 1 Quote Link to comment Share on other sites More sharing options...
ring3018 Posted January 17, 2019 Share Posted January 17, 2019 Ok i don’t think you understand what we said so i will explain the problem as best as I can. 187 visa is not permanent, it can be cancelled. 187 visa regulation you posted above means once you get a visa, your obligation is to stay with your employer for 2 years. If there’s any reasons that you quit before the 2 years came up, the department will assess your genuineness based on several reasons example: the restaurant closes down, bullying etc...If they don’t agree with what you explained your visa will be cancelled Back to your problem, you are still waiting for your visa, you don’t have a 187 visa yet. So the cancellation ground above is not apply to you. If my explanation is not clear enough. I advises you to ask a registered migrantion agent. Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 17, 2019 Author Share Posted January 17, 2019 @ring3018 yes I understand what you sayin. But then how we are supposed to deal with the situations apart from torelating. If the workers have been bullied there is no escape from the situation she even doesn’t want us to have work comp. ( illegal to fire ) Hope there is a compassionate judge on this. Otherwise what we supposed to do. More I say right things ( advice from ombudsman ) more I bullied from employer. Its ridiculous. Hope there are rules that helps us to get PR and find other work place. ( it’s a regulation that says if employee get fire while on work comp, insurance company has to find new work place.) I’m very happy to work again for someone else. Quote Link to comment Share on other sites More sharing options...
Nemesis Posted January 17, 2019 Share Posted January 17, 2019 51 minutes ago, Hitchooooo said: @ring3018 yes I understand what you sayin. But then how we are supposed to deal with the situations apart from torelating. If the workers have been bullied there is no escape from the situation she even doesn’t want us to have work comp. ( illegal to fire ) Hope there is a compassionate judge on this. Otherwise what we supposed to do. More I say right things ( advice from ombudsman ) more I bullied from employer. Its ridiculous. Hope there are rules that helps us to get PR and find other work place. ( it’s a regulation that says if employee get fire while on work comp, insurance company has to find new work place.) I’m very happy to work again for someone else. talk to a registered agent. Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 17, 2019 Author Share Posted January 17, 2019 @Nemesis Would you say registered agent can be a help for it? I have been seeking good immigration lawyer. But if agent helps I’m happy to inquire. Quote Link to comment Share on other sites More sharing options...
Nemesis Posted January 18, 2019 Share Posted January 18, 2019 15 hours ago, Hitchooooo said: @Nemesis Would you say registered agent can be a help for it? I have been seeking good immigration lawyer. But if agent helps I’m happy to inquire. There are several registered migration agents who use this site, talk to one of those. Quote Link to comment Share on other sites More sharing options...
Perth314 Posted January 21, 2019 Share Posted January 21, 2019 I am sorry for you. I have been in the same situation as yours. The company I worked for sold twice! So I got nomination refusal twice. Here is my story: https://www.sbs.com.au/yourlanguage/punjabi/en/article/2018 And honestly there is not much we can do. The visa, the job are all out of our control. We will eventually find a job however the time we wasted on visa would never come back. It was such an big interruption to life plan. Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 29, 2019 Author Share Posted January 29, 2019 @Perth314 Thank you. I will check it later. Quote Link to comment Share on other sites More sharing options...
Hitchooooo Posted January 29, 2019 Author Share Posted January 29, 2019 @Perth314 i could not see any story on the link mate. it is a complete distraction. My employer wanna me to back work but nomination is already withdrawn. What could I do? .... Quote Link to comment Share on other sites More sharing options...
DT55 Posted January 30, 2019 Share Posted January 30, 2019 22 hours ago, Hitchooooo said: @Perth314 i could not see any story on the link mate. it is a complete distraction. My employer wanna me to back work but nomination is already withdrawn. What could I do? .... As has been suggested by two others, talk to a registered migration agent to see exactly where you stand Quote Link to comment Share on other sites More sharing options...
Suel21 Posted February 3, 2019 Share Posted February 3, 2019 On 17/01/2019 at 20:26, Hitchooooo said: @ring3018 yes I understand what you sayin. But then how we are supposed to deal with the situations apart from torelating. If the workers have been bullied there is no escape from the situation she even doesn’t want us to have work comp. ( illegal to fire ) Hope there is a compassionate judge on this. Otherwise what we supposed to do. More I say right things ( advice from ombudsman ) more I bullied from employer. Its ridiculous. Hope there are rules that helps us to get PR and find other work place. ( it’s a regulation that says if employee get fire while on work comp, insurance company has to find new work place.) I’m very happy to work again for someone else. I understand your frustration in this unfair situation, unfortunately there’s nothing to do in regards the visa 187 conditions and exceptions for you. If you are going ahead to dispute this unfair dismissal, you have to concentrate only on the work related issue but do not try to apply or spend money or time to get anything from immigration, unfortunately in this ocassion there is nothing either positive or negative they can do. Concentrate to get another job and start from scratch. Good luck Quote Link to comment Share on other sites More sharing options...
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