RSMS 캔슬조항에서의 핵심인 "genuine effort"에 대한 policy 변경이 업데이트 되었습니다. 관심있으신 분들은 아래 summary를 참고하시기 바랍니다.
Policy surrounding 'genuine effort' has had some significant changes made including the following (changes to policy underlined):
If the employer provides information that the visa holder has permanently ceased to work for the employer, the officer will consider whether the visa holder made a genuine effort to complete the two-year employment period.
For cancellation to occur, the delegate 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.
In the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment and the explanations given by the employer and the visa holder for the termination;
Under 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. Officers must consider the individual merits of each case when determining whether there has been a genuine effort; and
When determining whether the visa holder has made a genuine effort to complete the two-year employment period, the delegate should consider whether the reasons provided by the visa holder and/or the employer are valid. For example, if the visa holder was dismissed because of under-performance, consider whether the employer’s expectations were reasonable.
There is also a need for delegates to be alert to possible claims by an unscrupulous employer that the visa holder left the employment without making a genuine effort to stay employed for the two-year period. In some cases, these claims could be linked to worker exploitation. If claims have been made to the Fair Work Ombudsman concerning workers’ exploitation, any available information about those matters should be considered as per the Foreign Worker Exploitation – Assurance Protocol.
Even if the delegate determines that grounds for cancellation do exist, there may be factors that should be considered when assessing whether to exercise the discretion to cancel the visa under s137Q of the Act. These factors can include:
- The Department’s policy is to give effect to the United Nations Convention on the Rights of the Child, which requires that the best interests of any affected child (under 18) in Australia be treated as a primary consideration when exercising discretionary decision-making powers. If there are children whose interests would be affected by cancellation, or consequential cancellation under section 137T, delegates should consider the best interests of those children 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, such as the truthfulness of statements made to officers or in applications under consideration by the Department
- the links to the community the visa holder may have made. This can include the strength of family, social, business and other ties in Australia. Strong ties to regional Australia and continued employment in that area may also be given special consideration
- 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
Interview
A visa holder may be invited to attend an interview after their response to the NOICC has been received, if the delegate thinks that an interview may assist to resolve the relevant issues. Interviews should be conducted within a reasonable period (generally no later than 60 days) after receiving the visa holder’s written response.
It is noted that the following statement has been removed from the policy:
The onus is on the visa holder, through their representations, to satisfy the delegate that they have made a genuine effort to commence employment or complete the required employment period.
