Two clients receive Notices of Intention To Cancel their Subclass 187 Regional Sponsored Migration Scheme (RSMS) Visas.
Two clients we will call SJ and LB attended our offices – LB in Sydney and SJ in Melbourne, with similar issues. They had both received Notices of Intention to Cancel (NOIC) their Subclass 187, Regional Sponsored Migration Scheme (RSMS) Visas, because they hadn’t stayed with their nominating employer for at least two years after their visas had been granted.
SJ attended our office in Melbourne for a consultation and he was very stressed (which was not surprising).
SJ had just received a notice from the Department of Home Affairs (DHS) threatening the cancellation of his Subclass 187 Regional Sponsored Migration Scheme Visa, because he had not spent two years working for his employer.
SJ told us that he had been employed as a chef in a regionally located restaurant. He had worked a significant amount overtime which he had not been paid for, and had been constantly harassed by his employer – to the point of bullying.
SJ told us that he had reported his employer to the Fair Work Ombudsman who had reached a conclusion that the employer was in breach of the Fair Work Act with respect to wages underpayments. The ombudsman had put the employer on notice, and the bullying and intimidation of SJ by the employer escalated.
SJ felt he had no option to resign, and did so only a few months after his RSMS was granted.
LB had been employed as a jockey in a regional area, and also found his boss to be quite critical and difficult to work with. After a series of difficult encounters with his boss, he fired him by text message late one evening.
LB believed he had been fired (although his employer considered that he was “only joking” when he texted).
LB found other employment as a jockey with another stable, but he also received a NOIC on the basis he had left his employment during the first two years of his Subclass 187 Visa.
What do the Migration Regulations & Migration Act say about Subclass 187 Cancellation?
Even though a Subclass 187 Visa is granted with no conditions, and is a permanent residence visa, Section 137Q of the Migration Act states that where a RSMS Visa holder’s employment terminates within 2 years following the visa grant, the visa may be cancelled unless the visa holder satisfies the Minister that, ”he or she has made a genuine effort to be engaged in that employment for the required employment period”.
How did we respond to the Notices of Intention to cancel (NOIC) on behalf of our clients?
In both cases, we set about collecting and collating evidence from fellow workers and friends about the visa holders’ employment conditions and the lead up to their employment termination. We also closely scrutinised wage records and other appropriate evidence.
We had both clients draft Statutory Declarations outlining the chronology of the terminations and what led to them leaving their employment in both cases. On top of that, we prepared written submissions addressing the legislation and researched relevant cases form the courts and tribunals to support our submissions.
In both cases, the DHA withdrew the notices.
Needless to say, our clients are very happy, and can now continue their lives ion Australia as Permanent Residents.
Both LB and SJ have remained in their regional areas and are looking forward to applying for their Australian Citizenships. They are employed full time and really enjoying their time in Australia.
How does the DHA find out about early termination of a Subclass 187 Visa holder’s employment?
In all the cases we have dealt with over the years (and there have been many), it is the aggrieved employer who has notified the DHA of their nominated employee leaving.
There is no obligation for either the visa holder or the employer to notify the DHA of an employment termination, however where an employer feels compelled to report the termination, the DHA considers the report very seriously and will cancel the visa, if the termination is within the post visa grant two year period unless the appropriate response to their notice is lodged.
We recommend that if you ever receive a Notice of Intention to Cancel your visa, you seek out an Immigration Lawyer to prepare your submissions and response, as these matters are complex, and a visa cancellation results in many negative outcomes. These include bans on applying for other visas.
Need assistance with a difficult migration issue or have recieved a Notice of Intention to Cancel your visa? Contact us today on 03 95735200, or Book a Consultation with us online.