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by Dr Etienne Hugo
 
I have been asked to write this article to inform holders of Subclass 457 visas currently in Australia of their legal rights in a time of financial uncertainty and retrenchment.
Recent developments
 
I postponed the submission of this article until after an awaited announcement by the Department of Immigration and Citizenship (DIAC) which was made on 27 February 2009. DIAC released a policy, effective from 24 February 2009, directing case officers deciding Subclass 457 visa applications to carefully consider the prevailing economic conditions both globally and locally and satisfy themselves that there is a benefit to Australia (as opposed to a benefit to the business) before granting Subclass 457 visas. The four elements of benefit to Australia's requirements have remained as:
  1. The creation of maintenance of employment for Australian citizens/PR's.
  2. Expansion of Australian trade in goods or services.
  3. The improvement of Australian business links with the international markets.
  4. Competitiveness within sectors of the Australian economy.
DIAC officers must further be satisfied that a Subclass 457 visa applicant has a demonstrably higher level of skill than can be sourced from within Australia. Employers may accordingly have to carry out labour market testing to satisfy this requirement, effectively reverting back to the position held by DIMA (Department of Immigration and Multicultural Affairs) many years ago.

Decision makers must consider the level of remuneration and be satisfied that it reflects the average remuneration for the relevant occupation grouping. Until recently these applications were approved even though the nominated position offered the bare minimum gazetted salary for the program. I believe this shift in policy is relevant, as applicants who plan to apply for Subclass 457 visas from now on may find in significantly more difficult to be granted a new visa than was the case earlier.

No Mandatory Cancellation

Judging from information received from various sources, it is clear that there is a misconception under Subclass 457 visa holders that such a visa will be subject to mandatory cancellation once an employer informs DIAC of the termination of the visa holder's employment. The rumour further has it that this will automatically happen 28 days after such notification. This is simply not accurate
and it is essential to be aware of the correct position and your legal rights as a substantive visa holder in relation to potential cancellation of such a visa.

If (as a holder of a Subclass 457 visa), you are in the unfortunate position that your role has been terminated, or is about to be made redundant, you should consider the following: The primary visa holder has a mandatory Condition 8107 imposed which requires the full time employment of such a visa holder with a sponsoring employer. The primary visa holder will be in breach of that condition
from the date that employment ceases. DIAC, once it becomes aware of such a termination, must at some point make an administrative decision (after following prescriptive legal requirements) as to whether such a visa should in fact be cancelled, or not. There is no provision for automatic cancellation of Subclass 457 visas in the Migration Act.

What happens now?

Although DIAC may only become aware of the fact that a visa holder has ceased employment, it is appropriate to notify DIAC at your earliest opportunity that there has been a change in your personal circumstances, to note that you position has been terminated (see below at mitigating factors). What I have noticed in practice over the last number of years is that DIAC has taken a very relaxed approach towards Subclass 457 visa holders who have lost their jobs. DIAC had typically given such visa holders significant periods of grace in which time a visa holder has the opportunity to seek new employment and sponsorship with a new/alternative employer. There is no legal entitlement for DIAC to afford such leniency and at some point DIAC may well change their view. A case officer will at some point have to commence the process of potential visa cancellation under Section 116 of the Migration Act.

Basis for cancellation

The basis for cancellation under Section 116 of the Migration Act would be the breach of a visa condition, in this instance Condition 8107. The formal process of cancellation that must be followed in order for such a cancellation to be a lawful cancellation, is to issue a notice of intention to cancel a visa, with affords the visa holder and opportunity to provide information to DIAC as to why the visa
should not be cancelled. It is vital to note that cancellation under Section 116 (i) (b) is a discretionary cancellation as opposed to a mandatory cancellation, which in some instances are prescribed.

Considerations why not cancel

There are various relevant and mitigating factors that must be considered by a delegate of the Minister in making the administrative decision whether to in fact cancel a Subclass 457 visa, or not. Some factors that must be taken into consideration are:

APPROPRIATE GROUNDS FOR CANCELLATION

Assuming the ground for cancellation is made out, primary consideration in deciding whether to exercise the discretion to cancel a visa under s116 should be given to the:
  • purpose of the visa holder's travel and stay in Australia
  • extent of non-compliance with any condition subject to which the visa was granted
  • degree of hardship which may be caused to the visa holder and any family members
  • circumstance in which the ground for cancellation arose
  • person's behaviour in relation to the department, now and on previous occasions etc.
MITIGATING FACTORS
There may be grounds for not pursuing cancellation if mitigating factors exist. Such factors might include:
  • the severity of the breach or omission leading to visa cancellation
  • the visa holder's record of compliance with immigration laws
  • eligibility for a more appropriate type of visa
  •  eligibility for another 457 visa with a new approved sponsor etc.
Cancellation procedure

It is important to note that the prescribed formal requirements referred to in Section 119 to 123 must be followed for a cancellation to be lawful and accordingly valid. It is essential that your response to DIAC (requesting that the discretion whether or not to cancel your visa should be exercised in your favour) is a substantial response and preferably refers to legal requirements and precedents to ensure that you have the best possible opportunity for your visa (given your particular circumstances) not to be cancelled. Obviously, each case will be based on its own merits and factual circumstances. You may wish to seek legal advice in preparing an appropriate response.
 
It is important to note that notification and a response to a notice of intention to cancel the visa issued under Section 119 can also be provided orally and DIAC under such circumstances may provide a ‘reasonable time' for such a response. There is precedent that as short as five minutes may be reasonable under the circumstances, which does not leave a visa holder with much time to gather his/hers thoughts and provide a substantial legal response. A visa holder may, therefore, consider legal representation authorizing an agent for all correspondence and communication purposes with DIAC. In such an instance, DIAC will be obligated to approach your legal representative at first instance and make contact with such a person rather than contact the visa holder directly. This may afford the visa holder crucial additional time in order to compile and appropriate response to a notice of intention to cancel.

Effect of cancellation

Once the delegate has taken into account all the relevant considerations he/she must then make a decision on the facts whether to proceed with the cancellation or not. If a decision is made not to cancel, then the visa holders will remain in Australia on their substantive visas until such a visa is either superseded, cancelled (on different grounds) or lapse (expire when visa runs out). If the delegate decides to cancel a visa under Section 116, the visa holder has a right to seek merits review of such a decision. In these cases, the Migration Review Tribunal is the appropriate forum with in which to lodge an application for review with in seven working days from receipt of such a notice by fax or hand and 14 working days if a notice were to be received by post.

Once a visa has been cancelled, the previous holder of such a visa then becomes an unlawful non-resident in Australia. Please note that any bridging visas A, B or C held by such a person, who may be awaiting the outcome of a pending application for permanent residence (or other onshore applications) will automatically be cancelled under Section 82 of the Migration Act, making the previous visa holder an unlawful non-resident. Under Section 189 an unlawful non-resident in Australia is subject to mandatory detention and removal from Australia. It is therefore essential for a person under these circumstances to apply for a Bridging visa E to re-gain lawful residence in Australia at his/hers earliest convenience. Such a Bridging visa E may be applied for on the basis of an application for merits review to the MRT or on the basis of making departure arrangements from Australia.

Review rights

One should consider seeking legal advice as to whether there is merit in reviewing a decision by DIAC to cancel a visa. It is essential that you exert your legal rights to ensure that a correct administrative decision has been made. The MRT will consider whether the delegate has made a correct decision, given the facts of the particular case and will take into account further legal submissions made either before, at or after a hearing that will be scheduled to give the review applicant an opportunity to provide additional information in relation to the review.

Review applicants can therefore remain in Australia on Bridging visas E, (most likely with work rights) until the MRT has made a decision on the review application. If the MRT affirms the decision by DIAC, the applicant may then consider seeking a judicial review of such a decision, if there were to be jurisdictional error in the tribunal decision. A further alternative may be to seek intervention from the Minister for Immigration in his personal capacity under Section 351 of the Migration Act. Such access is only possible once a negative MRT decision has been recorded.

If the MRT remits the application (finding that the visa should not have been cancelled), the visa will be reinstated and will cease to be in effect either when superseded, cancelled (on another ground) or lapse.

Conclusion

It is important for visa holders to ensure that the correct procedures are followed and that lawful decisions in relation to their immigration matters are in fact made by the authorities. It is a good investment to seek appropriate legal advice in relation to one's position, especially in the area of immigration law. An individual or family has most likely gone to significant expense and inconvenience to leave their home country to settle and/or work in Australia and repatriating sooner than planned may be financially disastrous.

I trust that the above guidelines may give visa holders a better understanding of their position in the event of a potential retrenchment, hopefully providing a more positive perspective. Please contact our office if you have any further questions in relation to this article. I am looking forward to hearing from you on: (02) .8080.3840 or email: etienne.hugo@teleo-group.com.

Visit our website: www.teleo-immigration.com

About the author

Dr Etienne Hugo is a South African born lawyer based in Australia. He is the legal practitioner director of Teleo Immigration, a leading Sydney based law firm specializing in Australian immigration law. He is a registered migration agent (Migration Agents Registration Number 0004435) and is admitted as an advocate in South Africa and as a solicitor in New South Wales/ High Court of Australia. He is a Law Society of New South Wales accredited specialist in immigration law. He is a lecturer in the Graduate Certificate of Migration Law and Practice with the Australian National University and ember of the Migration Institute of Australia.
 
 
 
Posted in migration |
Posted by Dr Etienne Hugo
18 Mar 2009



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My husband is on a 457 visa and we have been in Australia for 4 months. We signed what we thought was a 2 year contract. My husband was told due to oil prices they were cutting positions and he was no longer required. He was contracted to the company and the sponsor does not have additional work for him. This move cost us a fortune. Do we have any rights to recover our loss? Should we contact lawyer? We are 40 grand in debt, sold everything back home, just finished buying everything new to start our life here. We were told on hire there would be work for 20 years. Any advice would be greatly appreciated.
Rating: 5 / 5
 
by kim on 10 Feb 2015

 
Hi, what is the policy of release from work if you on 457? My employer want me fired after 6 months. I was working there 3 years, after he offer me 457. Does he has right do it?
Rating: 5 / 5
 
by Marek on 12 Nov 2013

 
Hi,i am currently in 457 visa for 5 months, and i am moving overseas . do my employee will charge me money if u resign my work?
Rating: 5 / 5
 
by rojina on 29 Aug 2013

 
I have been granted a 457 visa approximately a year ago. My entire family relocated to Australia , giving up everything back ho e. Life in stawell has become very challenging and has subsequently caused a fair amount of depression for all. Life in Melbourne or near a city would be so much more rewarding.I want to leave my job and apply for a job in Melbourne. It is soul destroying to see my family in such agony. Further I believe I'm underpaid . My current job is to manage the quality, health, safety , environmental management system as well as project management.I also support our plant in Thailand for the same.. My salary is under 70 k. I need some advise. If not the only option is to return to South Africa, without a job.
Rating: 5 / 5
 
by Prem on 22 Jun 2013

 
hi, actually, can u plz tell me that my 457 visa is refused in business,my husband employer sponser to me because i finised the business of managment .now what can i do i dont no plz help me .
Rating: 5 / 5
 
by tina on 04 Feb 2013

 
i want to know about the RSMS SUB CLASS 119 VISA how if the employer terminate the contract of his employee with cause and at the same time there is no much job that the employer can give to his employees...is the employee holding the RSMS VISA have a legal right to stay in australia even his employer terminate his contract? or did he get trouble to immigration??
Rating: 5 / 5
 
by richie sta.romana on 22 Aug 2012

 
This article is very helpfull to 457 visa holders like me. it is very informative and conforting knowing our rights. JUst one question, if the company cancel thier sponsorship or terminate me from work,. can I get any job even if it is not in line with the skills I have when they grant me 457 visa? thank you! and god bless you guys!
Rating: 5 / 5
 
by Jorge on 25 Apr 2012

 
Hello TM Harran, I am in Adelaide, now for 3 years. I am not going to be able to help with most questions as I don't have kids. However I will try:- 1) Tax - best check with the Australian Tax office - ato.com.au. I am pretty sure they tax you! 2) PR - wasn't sure if you could on a 457 to apply for PR after 2 years. You can on a regional sponsored visa (used to be a 475). Best check at immi.gov.au 3)Can't help you but my friends have sent their kids to the local public school no problem. 4) On a 457 my understanding is that you have to get another job within a certain time frame, otherwise you have to go back (best check with immigration). 5) What work can you do? Recruitment agents like to see you face to face, unless you have a skill in demand. I came out a year before I moved on a recce to suss the place out. I was making an life changing decision based on hear say and web sites. So it was good to check the place out first though it is a bit of an investment. I would go to seek.com.au first to see if there are jobs in your particular industry. 6) You need to factor in private medical cover. as far as I am aware a 457 visa doesn't entitle you to medicare. And this can be expensive but necessary. 7) Average 3 bedroom house prices are approx AUD 475-650K. Let me know if you have any other questions. Dankie Gordon
Rating: 5 / 5
 
by Gordon Guy on 29 Feb 2012

 
hi...I am a permanent resident of Australia. My husband is on 457 visa. We applied for partner sponsored permanent residency. Our doubt is if my husband resigned from the job he will loose his 457 visa..whether he will automatically change to bridging visa with work permission. Kindly reply to us.
Rating: 5 / 5
 
by sophiya pavu on 26 Feb 2012

 
I intent to move to Adelaide with my family (wife and kids aged 15 years and 11 years) under business visa Sub class 457. Can you please help me with following queries, 1) Is my Income taxable if so what is the percentage? 2) After two years of employment my agent said that I can apply for permanent residency. Is it correct ( I am short of points for regional skilled migration now I am 48years old), if so under what category I can apply for PR. 3) Can my children go to public school or only they need to attend private school. Private school fees seems to be very high so I am concerned about their schooling. 4) In case of termination what will happen to my visa and my family? I am little confused even after reading the article. Will I be able to find a suitable employer. with in how many days I had to leave the country. Is there possibility of any investment visa. I really appreciate your help. Thank you
Rating: 4 / 5
 
by T.M.Haran on 21 Feb 2012

 
Hi I M CURRENTLY ON 119 RSMS VISA . i am just tention about my employer if he is not paying my tax any effect on my visa i got my visa last month. and another question can i do another job with my current job. i want to do another job on tax its including my work rights.
Rating: 5 / 5
 
by DAVINDER SINGH on 21 Dec 2011

 
Hello good day,i came in australia in may 2007.i was full time worker and after finish my one year my boss wanted to apply my case for 457 visa .i got my 457 visa in jan 2009 and i applied my 857 visa in may 2009 because my lawyer told me that i can apply i got my nomination in july 2011 because i had no diploma my boss applied as a exceptional case .i went to india in oct 2011 and got married there .now my lawyer tells me that i can apply your case in normal ile which will take 5 to 7 months he cant put my case for decesion ready due to some papers from my wife like pcc and medicals and form 80 etc .can you advise me should i wait more months because i am scared if any thing happens in my working related like boss cyclone etc does it will affect on my case?can i call my wife soon?i have been working same job same boss for last five years and my 457 visa is finishing in jan 2013 .please advice me about my case .
Rating: 1 / 5
 
by vijay on 10 Dec 2011

 
hi my name is davinder singh actually i complete my certificate iv in commercial cooker and hospitality mgt. ( two year diploma) in 2009.currently i was student visa till 15 march 2011 but i applied 457 visa unfortunaty my visa officer refuse my visa and i applied mrt on 22/06/11 i m bit confused about my work rights can yo tell me about which bridging visa will give by immigration . i check my status online it shows my bridging visa a granted on 7/3/2011 to 03/08/2011 . i jst want to know about my work rights after 7/3/2011
Rating: 5 / 5
 
by DAVINDER SINGH on 25 Jul 2011

 
The article was very informative. I have a query ,if any one can help,please.. I hold a CLASS UC TEMPORARY RESIDENT VISA(SUB CLASS 457) sponsered by my company. The VISA has been sent for cancellation on 5th Apr 2011 on my departure . Is there any way the company(Sponser) can hold back this request, now? i.e to cancel the VISA Cancellation request?what to do for this?
Rating: 4 / 5
 
by saurav on 26 Apr 2011

 
I have been sponsored by a company for the past 4 months. My director has it in his mind that I must leave. He has no grounds but has issued me with a formal warning following an email he claimed was not 'in line' with company policy.. a complete excuse in a very unfair state of affairs. Essentially it's a matter of days now before they will fire me. They have done this to two others in the last month. I will contact immigration tomorrow in Sydney to see what they have to say, but will also be in touch with the author of this document for my rights and bullying in the workplace. Thank you for giving me some hope.
Rating: 5 / 5
 
by bullied woman on 10 Mar 2011

 
i think this article has answered a lot of peoples questions . how do i make contact with Dirk that comm. on 27 march , the reason for this ias that i have a simular trade and would want to speak to him . Thank you
Rating: 5 / 5
 
by dries claassen on 26 Nov 2010

 
Great article very promising for a very sad 457 visa holder! Thanks
Rating: 5 / 5
 
by HopSkip on 13 Oct 2010

 
I've been employed as an Office Manager for 4 years under the subclass 457 visa. i met my partner 2 yrs ago and last june of this year applied for my defacto visa. Upon my employer's knowledge they terminated my employment. Was this a ground to file a unlawful or unfair dismissal against them?
Rating: 4 / 5
 
by gigi on 21 Sep 2010

 
very helpful, as i've just lost my 457. this guide someone about where to go from now....cross fingers for all those on 457 visas.
Rating: 5 / 5
 
by fred w. on 20 Jul 2010

 
I arrived in Australia on a 457 in October 2007, and after working for my sponsor for only one week, I was fired. No valid reason given and nothing in writing. I was devastated and humiliated, naturally, as I am a proud single breadwinner that has never been in a situation where I was told to leave. After panicking for a few days about what to do, I went to Immigration's Adelaide office and asked to speak to an officer. She was extremely friendly and helpful and told me not to worry. She told me to look for another sponsor, and also started a legal process to prosecute my sponsor (no idea what happened there in the end). She said they appreciate it when migrants approach them honestly when they are experiencing problems and they would do anything they can to help. I found another sponsor more than a month later and in that time never received a 28-days to leave the country notice. In fact, during my time of job-searching for someone who would be willing to sponsor me, the immigration officer was in contact with me all the time to encourage and support me. She was fantastic, and offered to bring my application straight to her when I find a new sponsor and she would do all she could to help. She did, and later on she was just as happy as me when I was granted permanent residency. I learned a big lesson, and that is to go straight to Immigration when you have a problem. No need for a lawyer unless there are really big legal issues to deal with. The officers understand the visas they work with and they show a lot of compassion for people who approach them with problems.
Rating: 5 / 5
 
by 457 experience on 19 Nov 2009

 
having just been retrenched and recently finding a new employer/sponsor. Immigration lawyers are the way to go
Rating: 5 / 5
 
by Kyle Black on 02 Jul 2009

 
Highly informative and reassuring info Keep it up.
Rating: 5 / 5
 
by Sylvia Nolwandle Balfour on 21 Jun 2009

 
Has given a clearer picture of the present situation for the visa holders and I will be able to give family and friends back home some information which will help them decide what to do.
Rating: 5 / 5
 
by Gleneys Ormiston on 19 Jun 2009

 
Having just recently been informed of imminent retrenchment due to the economy this article gives one hope. Thank you.
Rating: 5 / 5
 
by Giulio di Somma on 25 May 2009

 
Thank you for your posting. The recent guidelines given by the minister for immigration re priority of processing of skilled migration applications will no doubt result in significantly longer processing times. It is impossible to say at this point how much longer it will take – time will tell. In short, unless you have state or employer sponsorship, or an occupation on the critical skills list, you need to become very patient in your approach. Please contact our office if you require assistance of further information.
Rating: 5 / 5
 
by Etienne on 17 Apr 2009

 
Thanks for the article. Just a suggestion; can't a 176 state sponsored visa be an outcome for some. How long does it take for a 176 Visa to get approved? Excellent article.
Rating: 5 / 5
 
by Jacques D on 03 Apr 2009

 
In aus now for 21 months and lost my job as Signal Engineer yesterday this help to know what my rights are
Rating: 5 / 5
 
by Dirk K on 27 Mar 2009

 
A most interesting article. It is comforting as a 457 visa holder to note that there are options and legislative recourse if you are retrenched.
Rating: 5 / 5
 
by A.Levison on 19 Mar 2009

 
 
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