RSMS Visa cancellation policy change – foreign worker exploitation
In a positive development for Subclass 187 Regional Sponsored Migration Scheme (RSMS) Visa holders, the Department has updated its policy on visa cancellations in response to concerns raised over possible foreign worker exploitation. The policy centres around whether to cancel an RSMS visa if the visa holder has not satisfied their obligation to complete the required two years employment with their nominating employer. For cancellation to occur, the Department must be satisfied that the visa holder did not make a genuine effort to commence employment or to complete the required two-year employment period.
According to policy, periods of more than 12 months may generally be accepted as representing a genuine effort. However, a visa holder can be found to have made a genuine effort if employed for under 12 months. This is a generous concession as it is contrary to the current law (which requires a minimum two-year employment period) and implies that after 12 months of service with their nominating employer, RSMS visa holders stand a good chance of demonstrating a genuine effort and thus avoiding their visa being cancelled. Be mindful that the individual circumstances of each case will be considered when determining whether there has been a genuine effort made by the RSMS visa holder.
The policy raises the possibility that foreign worker exploitation may be occurring in certain instances by making the point that the Department needs to be alert to possible claims by an unscrupulous employer that the visa holder has left their employment without making a genuine effort to stay employed for the required two-year period. As of 1 October 2019, the Department has changed its policy to remove the onus on the visa holder (which was previously the case) to satisfy the Department that they have made a genuine effort to commence employment or to complete the required employment period. This change is significant. By moving the onus away from the visa holder, the Department is clearly communicating a change in its approach to a more supportive attitude to the visa holder. Clearly the Department are raising the priority of their enquiries to the protection of RSMS visa holders in instances where theyare being exploited by their nominating employer. This also means that RSMS visa holders can now feel more comfort that the Department will support them if an employer has done the wrong thing.
It is unclear at this stage whether the two-year employment period commences at time of visa grant (which would normally be the case), as the clock start date depends on how the employment contract connected with the RSMS nomination is written.
Policy also states that even where there are grounds for visa cancellation to occur, the Department is required to consider certain factors when assessing whether to exercise its discretion to cancel the visa, including:
- If there are children whose interests would be affected by a visa cancellation, the Department needs to consider the best interests of those children (aged under 18) as a primary consideration when deciding whether to cancel the visa;
- the circumstances leading to the grounds for cancellation;
- the visa holder’s current and past behaviour in relation to the Department (for example, the truthfulness of statements made, or in applications under consideration by the Department);
- links to the community the visa holder may have made in Australia (such as family, social and business). Strong ties to regional Australia and continued employment in that area may also be given special consideration; and
- the length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa.
The visa holder may also be invited to attend an interview with the Department in cases where further issues are to be resolved in considering whether to cancel the visa.