There are many reasons why an employer may need to terminate the employment of a sponsored Skills in Demand (Subclass 482) (SID) visa holder.
This article does not deal with the legalities from an employment law perspective, but rather the immigration consequences of doing so, and steps that need to be taken.
In an immigration context, should such a termination occur, it is important that:
- the employer is aware of their sponsorship obligations to the Department of Home Affairs (the Department); and
- the visa holder is aware of their need to comply with condition 8607.
More information about the above is detailed below.
1. Employer – sponsorship obligation to notify
As the sponsoring employer of a 482 visa holder, a company is obligated to inform the Department if the visa holder’s employment ceases (whether they resign or their employment is terminated). This notification must be made within 28 calendar days of the visa holder’s employment ending.
This notification must include the day the visa holder’s employment ended, or is expected to end, and can be made either by:
- completing the ‘Notification of sponsor changes’ form through ImmiAccount. The Department have a step by step guide for this; or
- sending an email to [email protected]
It is important to comply with this obligation, as failure to do so may result in further consequences for breaching them such as enforceable undertakings, and/or civil and administrative penalties for the employer.
The sponsoring employer should also be aware that they may have the responsibility of
- paying for any reasonable and necessary travel costs for the visa holder and any sponsored dependents to depart Australia (i.e. a one way economy class ticket to their home country) – if requested in writing; and/or
- if the visa holder or any of their sponsored dependents becomes unlawful, paying the cost of locating them and removing them from Australia.
2. Visa holder – condition 8607
The primary holder of a 482 visa will be subject to Condition 8607, which requires them to:
- only work in the nominated occupation of their 482 visa (unless exempt);
- only work for their sponsoring employer (or an associated entity); and
- not cease work for more than 180 consecutive days (or 365 days across the validity of your visa).
This means that if the primary visa holder were to cease working with their sponsoring employer (whether they resign or their employment is terminated), they would have 180 days from their last day with their sponsoring employer to:
- find another approved sponsor to take over the nomination of their 482 visa;
- obtain a different visa to facilitate their continued stay in Australia (and avoid being in breach of this visa condition); or
- leave Australia.
After this 180-day period, if one of the above is not met, the 482 visa holder would be in breach of their visa conditions which means that the Department may take steps to cancel their visa, typically by first issuing a Notice of Intention to Consider Cancellation (NOICC). We have published a separate blog around what happens when the Department considers exercising its cancellation powers.
Secondary holders of a 482 visa do not have the Condition 8607 imposed on their visas so have unrestricted work rights, but may have their visas cancelled consequentially if the primary visa holder fails to satisfy condition 8607.
SAF levy refund
If a visa holder’s employment ceases before their 482 visa expires, there are generally no options for a refund of the lodgement fee, other than a refund of the Skilling Australians Fund (SAF) levy in limited circumstances.
The remaining “unused” years of the SAF levy is refundable where the visa holder leaves the sponsoring employer within the first 12 months of employment, where the visa period granted was for more than 12 months.
For example, if the SAF levy was paid for a 4-year Subclass 482 visa, but the employee ceased working after 6 months, the remaining 3 years of the SAF levy could be refunded.
Conclusion
Hannan Tew Lawyers have significant experience with SID visas, including assisting sponsors understand and meet their sponsorship obligations. If you require assistance with this, or have any other immigration related queries, please get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT AN IMMIGRATION PROFESSIONAL FOR UP TO DATE INFORMATION
