Relocation to Australia seems like a wonderful idea for many immigrants. It represents a new start; perhaps a new career if the migrant is able to secure a work sponsor or an employer in Australia. But just like everywhere else, career or job security depends on many factors some of which are beyond your control. What would happen to your visa if you did not complete the mandated 2-year work requirement?
This is a common question asked by migrants to their Migration Agent. If you are migrating to Australia under the Employee Nomination Scheme (Subclass 186) you agree that you will work in the nominated capacity for at least two years. You should also be aware that your visa can be cancelled should you provide false or misleading information.
However, in the course of employment circumstances or situations could arise which could compromise your mandated two-year tenure with the employer. The Australian government has done its part by including provisions in the Employee Nomination Scheme (Subclass 186) to ensure the viability of the program for the migrant. Among the following provisions that a prospective employer/ sponsor should comply with include:
- Employer must operate a legal and active business in Australia;
- Prove a genuine need to hire a skilled employee to fill a position;
- Offer a skilled position with a guaranteed duration period of two years;
- Offer a market salary rate;
- Comply with Australian workplace and immigration laws;
Despite these assurances to the government, business will always be unpredictable. Your employer may run into problems that will make the business unfeasible. And this situation could happen during your two-year employment requirement.
The truth is once the visa has been issued, you obtain permanent residency rights. There is no enforceable provision that prevents you from leaving your employer.
If your visa was applied through the Regional Sponsored Migration Scheme (Subclass 187) the implication would be different.
The RSMS (Subclass 187) is open to skilled workers who want to work in regional Australia. There is a two step process involved when applying for this visa:
- You have to be nominated by an approved employer
- Have an application under the nominated stream
This is a permanent visa but the Department of Immigration has the authority to cancel the permanent residency visa under the Migration Act of 1958, section 137Q. According to this section, permanent residency can be cancelled due to the following:
- If within six months of the date of your approval or within six months upon entering Australia as a holder of an RSMS visa you did not commence employment in your nominated role and you did not satisfy the Department of Immigration of your genuine effort to commence employment within the six months period.
- You commenced employment but terminated participation in your nominated role within the first two years and you failed to satisfy the Department of Immigration of your genuine effort to remain employed for the duration of the two years.
The keywords in these provisions are “genuine effort”. In the context of the Migration Act of 1958 what does “genuine effort” mean? The Department of Immigration cites the following instances:
- The reasons or circumstances which have led to the failure to commence work or maintain the two year employment period. The Department of Immigration may consider family or personal reasons.
- The possibility of collusion between the employer and the visa holder for the latter to not commence work or resign shortly thereafter as part of an arrangement for the visa holder to remain in Australia.
- The period of the visa holder’s employment with the employer prior to termination if in excess of the 12 month period may be considered an act of genuine effort.
- Any other matter that is relevant to the commencement or termination of employment.
Determining genuine effort may not appear as clear cut as these instances imply. There are scenarios that may arise and require further scrutiny and investigation by the Department of Immigration. These scenarios may be as follows:
- Assuming you are ending or terminating your employment with “reasonable grounds”, you are still expected to abide with policy and provide your employer due notice within a reasonable time frame.
- If business conditions have deteriorated that your employer has no other recourse but to shutter the business or declare bankruptcy, the Department of Immigration will unlikely find genuine effort on your part as the situation is beyond your control.
- If you engaged in actions that were found to be deliberate in nature with the intent to damage or interfere with the business then the Department of Immigration can take this into account when assessing genuine effort.
In view of these, immigrants want to know if the employer or sponsor can have their visa cancelled.
The provisions and recommendations of section 137Q are discretionary. The decision to cancel your visa will depend on the case officer. It is possible for your employer to provide the Department of Immigration with information related to your arrangement but he or she will not be involved or have the ability to influence the decision – making process.
You should also keep in mind that neither the Department of Immigration nor your Migration Agent will be able to provide advice on whether a visa would be cancelled or not before the termination of employment. Any assessment can only be made after you have officially ended your appointment with your nominated employer.
As you well know Australia’s migration laws are among the strictest in the world. The tough provisions serve as a check and balance for an economy that is very welcoming to migrants. Australia maintains a quota for number of immigrants per year. The laws are updated, revised or amended to improve the qualification process and to protect the migrants and the local labor market.
If you are planning relocation to Australia, it would be to your best interest to contract the services of a reputable Migrant Agent who is well-versed and updated with Australia’s migration laws.
