Cancellation of Regional Sponsored Employment Visas: Section 137 Q
S137Q is hidden away in the law and is not well known to those who have obtained their permanent residency visa via the RSMS scheme. There are no visa conditions on the PR visa label that governs this cancellation power, it is a standalone cancellation provision and you can read the section of the Migration Act here.
When an applicant for the RSMS visa is granted their PR visa it is on the basis that they intend to work for the sponsoring employer for at least two years from the date the visa was granted. If this intention is not honored then there may be grounds for loss of their PR visa.
Of course there can be many legitimate reasons why the employment did not last the full two years or in fact may never even have commenced. Before making a decision to cancel a PR visa all circumstances are examined carefully by DIAC and there are specific guidelines for case officers to follow in the DIAC Procedural Advice Manual (PAM) before a decision is made.
We will go over these guidelines now.
Visa holder does not commence their employment
Section 137Q(1)(a)&(b) specifically covers the issue this scenario. PAM's states;
"Section 137Q of the Act provides that a regional sponsored employment visa may be cancelled if the Minister is satisfied that the visa holder did not commence work with their sponsoring employer within a specified period the visa holder did not make a genuine effort to commence that employment"
The specified periods can be found in Regulation 2.50AA and they are:
For the 119 visa, six months from the date on which the holder of the visa first entered Australia
For visa 857 visa, six months from the date of visa grant.
For the 187 visa, if the visa holder was in Australia on the day of the grant, then 6 months from the grant of the visa. If the visa holder was not in Australia on the date of the grant of the visa, 6 months from the date the visa holder first entered Australia as the holder of the visa.
If the visa holder did not commence their employment within these time frames then an assessment will be made if a genuine effort (see below) too place or not.
What if the employment was terminated before the 2 year period expired?
"Section 137Q of the Act provides that a regional sponsored employment visa may be cancelled where the visa holder commenced the employment but did not complete the two year employment period AND the Minister is not satisfied that the visa holder has made a genuine effort to complete the required two years."
In cases where the employer has granted Leave Without Pay (LWOP) then this period is considered as continued employment.
For example if a personal tragedy has occurred back home for the visa holder and the employer gave permission (in writing hopefully) for them to spend an extended period with their family, they would still be considered as employed for the period on leave.
A Genuine Effort?
An assessment of this "genuine effort" is crucial for the visa holder for it will determine whether their visa may be cancelled or not. A case officer will consider all the information given before making their decision. This information may be provided by the visa holder, the employer or any other party.
PAM's sates the following on this issue;
* "the visa holder's reasons 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, does not commence work within the six month period or resigns 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 (generally, periods of more than 12 months may be considered as a genuine effort) and
* any other matter which is relevant to the commencement or termination of the employment.
If terminating the employment on reasonable grounds, a visa holder would be expected to give their employer appropriate notice, including the opportunity to make a counter offer in circumstances where a more attractive employment opportunity exists in the regional area.
A situation created by the visa holder that results in termination of their employment would not be considered a genuine effort.
A visa holder is unlikely to be assessed as failing to have made a genuine effort where 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.
Delegates are also expected to consider any hardship that the visa holder or members of the family unit may suffer if their visa is cancelled."
We all know that employer-employee relationships can at times become a bitter affair where both sides can feel used and abused. It is not uncommon that an employer will contact DIAC and complain that the visa holder left his company before the two years expired.
Whilst DIAC must have regard to the information provided to them by all parties, they are aware that emotions can run hot when an employee has been fired or an argument has occurred and the employee has just left.
The real issue is about genuineness and that is not just about the employee, it is also about the employer. On many occasions it has actually been the employer who hasn't paid the right salary, or did not provide the proper level of work duties, or expected visa holders to work 7 days a week to demonstrate their gratitude for being sponsored. DIAC has seen all the possible scenarios you can imagine.
Once an employer has given their information they are not entitled to have any further input or to gain knowledge about what happens to the visa holder.
Monitoring by DIAC?
DIAC does not monitor RSMS visa holders once their visas are granted, nor do they monitor the sponsoring employers. Even if they did ask questions of either party it is unlikely they could force an answer out of anyone. The onus is meant to be on the employer to inform DIAC if the employment has ceased before the required period or if the employment never commenced. However there is nothing in the law stating the visa holder needs to inform DIAC nor even for the employer to inform them.
In the majority of cases it is a disgruntled employer that provides the information to DIAC and once this information is received DIAC must take steps to investigate. Usually one of the first steps is to issue a Notice of Intent to Cancel (NOIC) the visa holders permanent residency visa.
This however does not mean DIAC cannot search for the information if they choose to do so but a NOIC would normally only occur if they have received some substantial piece of information.
In the end however the issue of how DIAC actually becomes aware of a visa holder failing to comply with Section 137Q is irrelevant. Once they do become aware, the onus is on the visa holder to prove that they made a genuine effort or their visa may be cancelled.