Can RSMS Visa be Canceled?
It’s important to highlight at the outset that a visa – not just the RSMS subclass, but any type of visa, for that matter – serves as a permit for you to enter and leave a country of which you are not a citizen. As such, it carries certain conditions that you must follow while you are in the territory of the issuing country. Furthermore, failure on your part to abide by those conditions will result in some forms of punishment, and one of those is the cancellation of the visa.
We think it’s just normal and fair. The host country proves generous and hospitable to you but you fail to hold up your end of the bargain, it’s just but proper that the former cuts the deal short.
So, yes, a Regional Sponsored Migration Scheme (subclass 187) visa, more popularly known as RSMS visa, can be canceled, which may lead to your deportation or removal.
As to the circumstances leading to its cancellation, let’s discuss them in a bit. In the meantime, let’s talk about one of the most common questions RSMS visa holders and applicants throw at us: Do I need to stay with my employer for two years?
Do You Need to Stay with Your Employer for Two Years?
Indeed, are you required to serve your sponsoring employer for two years after the visa is approved?
Please bear in mind that in the visa application form, you are required to declare your intention to work in the nominated position for at least two years. This goes without saying that when you file your application, you hold the intention to work for the nominating employer in your capacity as stated in the agreement for at least two years after the visa is granted.
It requires further that you maintain the same intention until the decision on your application is handed down. If, however, in the event that you change your mind before the filing of your application or while the application is being processed and you no longer want to honor the stipulation on the agreement, you should do either of the two options:
One, don’t lodge the application if you have yet to submit it. Two, you inform the Department of Immigration and Border Protection (DIBP) of the sudden change of plan.
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Reason for RSMS Visa Refusal
One common reason the Australian government turns down your application is when you, as the applicant, or any member of the family you include in the application or even third parties acting on your behalf provide – or have provided in the past applications – false or misleading information or fake documents either wittingly or unwittingly. Not only that: you may be subjected to a three-year ban from obtaining the visas affected by the fraud. If a visa has already been granted, it may be canceled.
Cancellation of Regional Sponsored Visas
Let’s now discuss the reasons why RSMS visas are canceled.
First off, section 137Q of the Migration Act 1958 empowers the DIBP to cancel RSMS visas (subclass 187) under certain circumstances. But two reasons stand out among the many as to why such visas are canceled. These are:
- you do not start working in your nominated position within six months from the date of the granting of the visa, or you fail to convince the DIBP that you have made a genuine effort to start working in the position you are supposed to undertake within six months after entering the country.
- you start employment but you terminate it within the first two years and you fail to satisfy the DIBP as to your effort to remain in your sponsored job for the prescribed two years.
How Can the DIBP know?
In most cases, your employer serves as the trusted source of the immigration people in finding out that you have been remiss in observing the stipulations on your visa. They will be the one to inform the proper authorities that you either fail to commence employment or you end your employment before you have completed the prescribed two-year length of service.
Apart from your employer, the other sources of information of the DIBP may include other government departments and line agencies such as the Australian Securities and Investments Commission, Centrelink, Australian Taxation Office and others.
As a visa holder, you are not obliged to inform the Department about the termination of your employment. Hence, it’s the government agency tasked to oversee the status of non-citizens living in the country that would determine your case.
How Is ‘Genuine Effort’ Assessed?
In case the DIBP decides to proceed with the investigation as regards your case, they would look into the following compelling and compassionate considerations:
- They would weigh the reasons that have caused your failure to commence work or to complete the two year employment period. These reasons may be family-related or just your personal circumstances.
- They would also consider the possibility that you, in collusion with your supposed employer, do not intend to start work within the six month period or resign shortly after commencing work, as part of a set-up for you to enter and remain in the country.
- If termination does happen, the period of your employment with your sponsor prior to termination of the employment is also scrutinized. If it’s proven that you have served in your employer for more than 12 months, they may see it as a genuine effort.
- Any other factors affecting the commencement or termination of the employment are likewise examined.
Having said that, it’s also worth discussing the other important matters as far as the implementation of section 137Q is concerned:
- If you have stopped employment on “reasonable grounds,” the law requires you to give your employer reasonable notice.
- The Department cannot conclude that you have not made a genuine effort if your failure to start your work or your termination of employment was due to circumstances beyond your control (such as your employer’s financial woes, bankruptcy or closure of the business).
- The Department can only decide that you have not made a genuine effort if you intentionally damage or sabotage your employer’s business to cause the dismissal.
In conclusion, the policy states that decisions made under S137Q are to be resolved between the Department and you, the visa holder. The employer who nominated you can provide information to the Department but they do not have a say in the decision-making process.
If it will come to the point where the DIBP considers the eventuality of canceling your visa, they will need to contact you to give you the chance to present your side of the story.
After everything is said and done about the matter, the government of Australia remains considerate and forgiving even to those who have supposedly not been transparent and faithful in their intentions of applying for the RSMS visa or other visas for that matter.
RSMS visa is one of the most popular subclasses of Australian permanent visas there are. We’re pretty sure you have several questions about it in mind, especially where visa cancellation is concerned. In that case, please don’t hesitate to give us a call or contact us at Nowak Migration. We’re only too happy to assist you with your concerns regarding your visa, in particular, or migration, in general. Feel free to leave a comment or ask the question below the article, and don’t forget to subscribe to our newsletter.
Hi Nowak team
I got question here, my 187 visa was approved in April last year and my job start date was September but I had baby in end of July. I contact my employer to start my job in September but he said my baby is too young to start job now he start my job last week but some of my baby’s special needs my doctor give me certificate that I can’t work another 6 month, my baby is 5 month old but I can do?
Well, 187 is a permanent visa and it looks there are exceptional circumstances, so you can get away with any visa related issues. Not enough information for me to give a definite answer. Please book a consultation if you’d like to discuss
Hi Team
Little help would be very much appreciated.
Currently on RSMS 187 and have been from Feb 2017 (15 months). Came to Australia on 457 in May 2014 and have been working with the same employer since day one. Recently things at work have become stressful and the owner of the business is very unpredictable (verbally abusive, belittling etc). It is no longer the type of environment I wish to work in, however I am the main earner in the household and I am concerned I can’t move employment due to my 2 year visa obligation.
I have tried talking to the business owner to no avail ? What can I do from this point on ? I have looked through the job sites and there are plenty of vacancies in my regional area, which to be honest I wouldn’t mind pursuing.
We are a family of 4 (wife works locally, 19 year old has fantastic local job & youngest son in year 11 with great academic results)..
Thanks in advance
Graham
What’s the question here?
The likelihood of cancellation if I were to move employer ..
Check the conditions of your visa – I believe there is one which states that you have to work in regional Australia for 2 years, does not stipulate for whom. Please book a consultation if you’d like to discuss it further.
Hello
Thank you for reading my enquiry.
For the visa 186 (Direct Entry) holder, if the employee leaves the nominator within 2 years due to some reasons, e.g. they got a better job or had bad relationship with the employer, is there any possibility for the Department of Home Affairs to cancel the employee visa after the employer reporting it to the department?
Best Regards
Augustus
This post is about RSMS visa, not ENS. Please book a consultation if you need to discuss your case.
Good Day Team Nowak,
My visa just got recently approved but the worry I have is that the company I work for wants me to transfer to a different regional venue. Will I have any problem with this situation? I haven’t started in the original venue in which the visa has been nominated.
Hope to hear from your team soon.
Cheers!
Tricky one. Is it permanent placement, FIFO, jour job involves travel from site to site? In general, if it is the same employer and position is still in regional Australia – might be ok.
Good day team.
I have just received my 187 visa, and would like to know the following.
Will I be allowed to work( without this effecting my current job with my nominated employer) in my own business or ABN. Altough I do get my 38hours a week, I would like to know if I will be allowed to do weekend work for some one elss and or for myself in my ABN. So this means that my main employer is stil the one who nominated me, and I am still serving him as far as he requers neccesary.
Unlike 482 visa RSMS does not have a condition that you’d have to work only for a nominator.
Good day team Nowak
My rsms visa granted last year November. And, I was working at this company since June, 2017. So, its been 2years now. But after visa granted I only worked 7 month now.
The thing is, I been suffered by my dermatological problem. I saw doctors several times, and doctors said this is because of the unique climates here. It happens really bad and still going on from last year. I got medical certificate and doctor write that I has been getting recurrence infection which have proven very difficult to treat, most likely related to the heat of the place that I am staying.
The problem is more likely related to this place than work itself.
I just personally suffer enough with this illness, because of this, it is really hard to get deep sleep as well. I seriously considering to resign my work.
In this case, would Department of Home Affairs cancel my visa?
According to regulations you have to stay for another 2 years working in regional Australia otherwise your RSMS might be canceled.
Hi dear,
My RSMS was approved on this year in 2 of January and working with my employer from last 4 years. I am pregnant now and my due date is January and I will go on maternity leave for about 6 months is it can be issue with my employer or immigration that I will not be able to work. I will get paid leave and will be back after 6 months. So they question is this that my visa will be on risk or I will have to go back at work as soon as I can.
Appreciate your response. Thanks
How could they cancel the visa of the mother of a little Australian?
Hi
I have been working for over 3 years (after RSMS visa granted 4months)
If one of my family member is diagnosed a serious disease , which can be a genuine effort ?
Thank you
I don’t get the question here?
Genuine effort for what?
Hey team nowak.
I would like to know whether i can generally transfer between employers in the same region on my RSMS. I have been with my employer for 48 months, now. My 187 only got approved in january this year, though. The company has also changed abn since january. The atmosphere and work conditions worsen. I am pretty sure i am not even paid minimum wages and hence struggle to maintain an acceptable lifestyle as a dive instructor. Employers in the same town offer better conditions. Do i need to open a case with fair work or is there an option of just finding a company to take over my last 16 months? I am happy to keep working in the industry, of course. But my current employment situation is – in my opinion – unacceptable. Thanks, Rom
According to visa conditions, you’ll have to stay in regional Australia for 2 years after 187 visa grant to avoid possible cancellation. It does not say that you have to work for your nominator.
If you are complaining about work conditions – well, that’s a different story and we are not in the position to give you any advice. Have also a look at your contract.
Hi there,
If my 187 visa is granted, I need to move to the regional area. Question is, if my company transfer me from a Regional are to a non-regional area, would I have my visa cancel?
You have an obligation to stay for 2 years in a regional area after the RSMS visa grant. If you’ll move to metro within 2 years after grant, your visa may get cancelled if immigration will become aware of the fact. Keep in mind it may get cancelled any time in the future even after 2 years for non-compliance with visa conditions.
I have 187 visa, and my employer terminates me after 17 months I was granted by the visa. Could it affect on cancellation my visa.?
Redundancy itself should not be the cause of cancellation. Moving to a metro area within 2 years after a visa grant might be.