Importantly, if you hold a Subclass 187 visa (or the now discontinued Subclass 119 or Subclass 857 visas) and have received a notification of an intention to cancel your visa, the following information will assist you in understanding why you might be in this position and what arguments you may be able to put forward to avoid the cancellation of your hard earnt visa, or if necessary, what you can put forward to the Tribunal should you appeal such a cancellation.
Besides the many other avenues a non-citizen can have their visa cancelled, there are two main cancellation powers under s 137Q which are as follows:
Cancellation Power #1
This cancellation power activates when the visa holder fails to commence the employment referred to in the relevant nominated position, AND the visa holder is unable to demonstrate a genuine effort to commence that employment within the prescribed time frame (s 137Q(1)).
For instance, if you were granted a subclass 187 Regional Sponsored Employment visa to work as a Chef in Mackay QLD on 1 July 2016, and you decided to take a holiday for 7 months around Australia before you started work – this could activate the cancellation power.
The time frame which the Department of Immigration expects you to start working on the subclass 187 visa is within six (6) months from the date of the visa grant (if applied for the visa in Australia) or when you first arrived in Australia (if applied outside Australia).
However, if circumstances were different and you made genuine attempts to start your new employment, but were prevented due to factors beyond your control (such as your employer delaying your start date due to financial complications or you are unable to start work due to a medical reason) then there is scope to argue against an intention to cancel your visa.
Case Example
An example of a case where an applicant made genuine attempts to start the new employment can be found here.
This case outlines an applicant’s attempt to appeal his cancelled subclass 187 visa under section 137Q(1), due to evidence that he had not started work with his regional sponsored employer within the prescribed time frame. Through no fault of the applicant, the employer failed to provide the promised job. With the help of the applicant’s migration agent, they were able to successfully appeal the decision and prevent his visa from being cancelled. Some of the important factors that were demonstrated to show a ‘genuine attempt’ to start work included, the applicant:
- moving a considerable distance to another city to begin his new job (from Brisbane to Mackay), expecting to start within 6 months;
- waiting 6 months in Mackay anticipating that the promised job would eventually start;
- was financially stretched during the wait and was forced to find alternative work driving a taxi;
- remained in Mackay despite being financially stretched, due to the employer suggesting that the applicant was not in breach of his visa and would not be cancelled.
The Tribunal found that conduct of the employer was unsatisfactory and ultimately left the applicant in a very difficult and financially stringent situation. The Tribunal considered the personal circumstances of the applicant and confirmed that the grounds for cancellation were clearly beyond the applicant’s control. The actions of the employer left the applicant vulnerable as he continued to wait for the promised job, that never eventuated. As a result, the Tribunal agreed that the visa should not have been cancelled under section 137Q(1), due to the applicant’s clear and genuine attempt to start work.
Cancellation Power #2
An RSMS visa can also be cancelled if the visa holder commenced the employment but left the job within two (2) years, AND the visa holder is unable to demonstrate a genuine effort to be engaged in that employment for the required employment period (s 137Q(2)).
For example, if you decided you didn’t want to work as a Chef in Mackay QLD anymore, and left your regional sponsored employer after 1 year of working and then travelled to Brisbane to study – this could activate the cancellation power.
However, if circumstances were different and you made genuine attempts to remain in your current employment, but you were fired due to a disagreement with your employer or your employer is suffering from financial loss and is unable to keep you employed, then it is arguable that you are not in breach of s 137Q.
Case Example
An example of a case where an applicant did make genuine attempts to remain in their current employment for 2 years can be found here.
In short, this case demonstrated the applicant successfully appealing the decision to cancel his RSMS visa under section 137Q(2), even though he only worked for one (1) week in the job! The Tribunal decided that his visa should not be cancelled because he did make a genuine attempt to commence and remain in his job within the 2 year period. The facts explain that:
- he started work on 20 November 2012 as a Welder Fabricator, and his employer terminated his employment on 27 November 2012;
- termination was claimed to be from the applicants ‘lack of skill’ level;
- despite the applicant having the required qualifications, passing the practical job interview, positive work references and skilled enough the find another job – termination of his job for the ‘lack of skill’ in the nominated position was NOT a reason to cancel the visa;
- the applicant did make genuine efforts to work with the employer, and it was the employer who was ultimately unhappy with the applicant’s work, and terminated the employment agreement.
The Tribunal outlined that to cancel the visa under section 137Q(2) the applicant must NOT have made genuine attempts to commence and remain in the position for two (2) years. In this case, the applicant genuinely wished to be employed by the nominated business, but was just nervous and slow to making adjustment to working in Australia. The Tribunal was satisfied that the applicant did make a genuine effort to be engaged in that employment for the required period and therefore cannot be cancelled under section 137Q(2).
How do they assess a ‘genuine attempt’?
Government Policy is used to assist in deciding what normally constitutes a genuine attempt by an RSMS visa holder.
Specifically, the policy states:
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.
Importantly however, a situation intentionally created by the visa holder that results in termination of their employment would not be considered a genuine effort.
Still confused over cancellation powers?
To help you understand when a case officer can exercise the cancellation power, we again turn to Government Policy, which is used by case officers when deciding to exercise their discretion in canceling a visa under section 137Q of the Migration Act 1958 (Cth)
Specifically, the policy states:
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.
This means that even though you may be potentially subject to having your visa cancelled under Section 137Q, the case officer can also exercise their discretionary powers to consider other relevant circumstances or facts, to not cancel the visa.
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).
Help is Available
If you find yourself in either one of these circumstances, and you have made genuine attempts to commence or remain in your current employment it is worth discussing your case with our Registered Migration Agents! Feel free to contact us on 1300 644 788 or send your questions here.
Also, click here for more informative blogs by our Migration Lawyers.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
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Originally Published here: RSMS Cancellations – Do They Really Happen? Yes! Here’s How to Avoid It!
Originally Published here: RSMS Cancellations – Do They Really Happen? Yes! Here’s How to Avoid It!
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