RSMS Visa Holders & Applicants – Do I Need to Stay With My Employer for 2 Years?
This must be one of the most commonly asked questions that I receive from Regional Sponsored Migration Scheme (Subclass 187 visa) applicants: Do I need to stay with my sponsoring employer for 2 years after the visa is approved?
What migration law requires
In the visa application form, as the applicant, you are required to declare that you:
- Agree to work in the nominated position for at least two years
- Understand that if you as the applicant, or any family members included in the application or third parties acting your behalf, provide (or have provided in a previous application) false or misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and you may be subject to three year bar in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled.
Effectively, this means that when your visa application is lodged, you must have the intention to work for your sponsoring employer in your nominated role for at least 2 years from the date that the visa is approved.
You need to continue to have this intention until a decision is made on your application. If your intention changes before lodgement, or during processing, and you no longer intend to work for your sponsoring employer for at least 2 years from when the visa is approved, then you should either not lodge the application or inform DIAC and withdraw your application (which ever is applicable to your situation).
Obtaining permanent residency and Section 137Q
Section 137Q provides grounds for DIAC to cancel the permanent residency that you obtained through RSMS. The section itself is relatively straight forward and states that permanent residency granted under the RSMS pathway may be cancelled if:
- You don’t commence employment in your nominated role within 6 months of the date of approval (if you’re in Australia at the time of approval) or within 6 months of entering Australia as the holder of a RSMS visa AND you don’t satisfy DIAC you’ve made a genuine effort to commence employment within the 6 month period; or
- You commence employment but you terminate your employment within the first 2 years AND you don’t satisfy DIAC you’ve made a genuine effort to remain in your nominated role for the required 2 years.
I will point out that I have never seen or heard of anyone’s RSMS permanent residency visa being cancelled under this section. And I think that it is reasonable to say that the instances where permanent residency has actually been cancelled under this section are relatively rare.
So is this section a toothless tiger? Well I can’t definitely say that it is. After all, this is a very specific power that applies to RSMS visas. However, I would say that up until now, this section hasn’t had much practical significance. You may see DIAC use this power more often for the new Subclass 187 RSMS visa. But since this section didn’t actually change under the legislative reforms of 1 July 2012, you may find that this section will continue to have little practical significance.
How is DIAC notified?
Your sponsoring employer is under no real obligation to notify DIAC if you fail to commence or cease employment. Similarly, you’re not required to notify DIAC either. So how does DIAC even find out? I think that generally speaking, the most common way for DIAC to find out is through a disgruntled employer contacting DIAC to inform them that you have either failed to commence employment or you terminated your employment before you have completed 2 years.
So perhaps the easiest way to avoid the application of this section to your permanent residency is just to leave on good terms with your employer.
DIAC can also find out about your cessation through information that it receives from other government departments, such as Centrelink.
DIAC’s policy does state that ‘investigations will occur only as a consequence of the department receiving information of note’. So this suggests that DIAC will not investigate simply because it is aware of your cessation. The information that it receives needs to be ‘of note’ (whatever that means).
Relevant considerations in assessing ‘genuine effort’
If DIAC does decide to conduct an investigation, under policy, the following must be considered when DIAC determines whether you have made a ‘ genuine effort’ (the below is a direct extract form DIAC’s policy):
- 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.
Below is a summary of other relevant parts of DIAC’s policy in relation to s137Q:
- If you’re ceasing employment on ‘reasonable grounds’, you are expected to give you employer reasonable notice.
- DIAC is also unlikely to decide that you haven’t made a genuine effort if your failure to commence or your termination of employment is due to circumstance outside of your control (i.e. financial loss, bankruptcy or closure of the business). Although I would suggest that in such circumstances, your former employer is unlikely to notify DIAC of your cessation of employment.
- DIAC may decide that you haven’t made a ‘genuine effort’ if you ‘deliberately damaged or sabotaged the employer’s business to cause the dismissal’.
At the end of the day, policy does state that decisions made under s137Q are a matter to be resolved between DIAC and the visa holder. The former employer can provide information to DIAC but they are not involved in the ultimate decision-making process.
Consequently, if DIAC is considering the possibility of cancelling your visa, DIAC will need to contact you to give you the opportunity to present your side of the story.
Before you ask…
Please don’t ask me whether it is ok for you to leave your employer before completing the required 2/3 years of post visa approval employment. I’m sorry but I’m not going to respond to comment questions asking me to predict whether DIAC will take any action against your permanent residency.
I did have a client contact DIAC before he left his employer – he asked DIAC whether it was ok for him to leave and whether DIAC would take action against his permanent residency status. DIAC expressly advised:
The Department is unable to determine whether or not a visa would be cancelled prior to ceasing employment. The assessment can only be made after the event, that is, after the visa holder ceases employment with the nominated employer.
If DIAC can’t even tell you what is going to happen before they complete an assessment, then I certainly can’t predict what DIAC will do if they decide to complete an assessment.
The above outlines all that you really need to know from a migration law perspective. All I can do is provide you with the relevant information. I can’t predict whether DIAC will take any action if you leave your sponsor/employer as this is completely at DIAC’s discretion.
I would say that if you ceased employment because your employer no longer needs you (irrespective of why this is the case – it can be a change of management, closer of the business, lack of work etc.), then I think that DIAC is unlikely to take any action against your permanent residency.
If you have obtained your Australian citizenship, then I don’t think that DIAC would take any action against your citizenship if you leave your employer within the 2/3 year period that you are suppose to work in your nominated role post approval of your permanent residency visa.
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