Employees who hold a Regional Sponsored Migration Scheme visa (Subclass 187) and their employers should be aware of recent changes that have been made by the Department of Home Affairs’ (the Department) existing 187 RSMS visa cancellation policy concerning “genuine effort”.
What are the changes?
The Department will consider whether a visa holder made a genuine effort to complete the 2-year employment period when an employer reports that a visa holder has permanently stopped working for them.
The Department must be satisfied that the employee did not make a genuine effort to:
- start their employment or;
- complete the compulsory 2-year employment with their employer.
What is considered to be a genuine effort?
- Employment of more than 12 months is generally considered a genuine effort.
Note: An employee who has been employed for less than 12 months can also be considered to have made a genuine effort, depending on the situation.
The Department has to consider the merits of each case in making a determination if there has been a genuine effort by the employee, for example:
- In cases of termination: If an employee is terminated, the Department will consider the duration of the employment and the reasons provided by both the employer and the employee in regards to the termination.
- For instance, the Department will factor in whether an employer’s expectations are reasonable in dismissing an employee for under-performing in their role.
- In cases involving claims by unscrupulous employers: The Department needs to be aware of unethical employers making claims that their employee has left them without making a genuine effort to stay for the 2-year employment period. This could potentially be a case of workers’ exploitation.
What happens if the Department finds there are grounds for cancelling the visa?
The Department should consider other factors that may be relevant in deciding whether to exercise their discretion in cancelling an employee’s 187 RSMS visa such as:
- whether it would be in a child’s best interest to do so which is a primary consideration in deciding whether to cancel the visa
- circumstances leading to the grounds for cancellation
- the employee’s present and past behaviour relating to the Department (ie whether the employee has been honest in making statements to officers or in applications)
- the employee’s link to the community including family, social, business and other ties in Australia. The Department may give special consideration for strong ties to regional Australia and continued employment in that area
- the period of employment with the sponsoring employer including prior employment while the employee held a temporary visa.
If the Department has made a decision to cancel the visa, the employee will be issued with a Notice of Intention to Consider Cancellation (NOICC) letter from the Department and will have to respond to this letter. The employee may then be invited to attend an interview with the Department if they think an interview could help in resolving the issue.
Know your rights as an employee
As a 187 RSMS visa holder, you should always be aware of your rights and entitlements as an employee in Australia. You can find out more information about your workplace rights and entitlements through the Fair Work Ombudsman.
