Subclass 457 Visa Out Of Job Time Now Reduced To 60 Days

From 19 November 2016, the time a subclass 457 visa holder can spend unemployed reduces to 60 days from 90 days – Here is what Condition 8701(3)(b) will say from 19 November:

if the holder ceases empyment, the period during which the holder ceases employment must not exceed 60 consecutive days

This is done under the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 dated 27 October 2016 coming into effect on 19 November 2016.

Of course there is no mandatory cancellation in the subclass 457 regime it is always discretionary and employers of course have no power to ‘cancel’ a visa all they can do is report a separation from an employee.

However even if an employee is unemployed for more than 60 days and his or her visa is cancelled then the strategy is to attempt to go out and find another employer and have that employer apply to be approved as a sponsor and to apply for approval of the occupation’s nomination. A good example of this strategy is the AAT case of Francisco 1609897 (Migration) [2016] AATA 4548 (21 October 2016)

The employee “resigned from [his employer] because he was asked to do lots of unpaid overtime and undertake duties which were inconsistent with those of being a Motor Mechanic, such as driving trucks.” He was employed there for 8 months and he was unemployed for 8 months when his visa was cancelled. He found a new employer but it took until 21 September 2016 for the nomination to be approved. On 21 October 2016 the tribunal overturned the cancellation. So here is the exact timeline on this case:

23 February 2016: Voluntarily ceases employment
27 June 2016: Subclass 457 visa cancelled
21 September 2016: Nomination from new employer approved
21 October 2016: AAT overturns cancellation

The employee had started with the new employer for a few weeks but ceased when he received the Notice of Intention to Cancel the visa. He was on a Bridging Visa E after cancellation with no permission to work.

Nevertheless the fact the employee had found a new employer with an approved nomination meant the AAT overturned the cancellation.

It is sometimes wrongly thought that condition 8101 must be imposed when a person applies for a bridging visa E after visa cancellation. Of course the first thing to do is to immediately apply for review to the AAT against the visa cancellation. Then the person is eligible for a BVE under  050.212(4)(b) which states:

(b)  the applicant has applied for merits review of a decision to cancel a visa

Under paragraph 050.617, 8101, no work, may be imposed but is not mandatory. In fact the regulation contains no presumption that a person should have 8101 imposed. Many delegate just impose 8101 as a matter of course without realising the imposition of 8101 is purely discretionary.

In the above case of Francisco the applicant had 4 school age children and a spouse to support in the Philippines.  On is case he was being exploited by his former employer. These are grounds not to apply 8101.

An important strategic point in these cases is getting the client permission to work while the merit review process is underway. In Francisco the applicant worked illegally for a few weeks but was unemployed for about 6 months.