457 to Independent (offshore) GSM

Old Apr 30th 2008, 12:04 am
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Default 457 to Independent (offshore) GSM

Hello!

I am a doctor recently appointed to a job in Emergency Medicine in WA. I am going on a 457 visa which is valid till 2012. I currently have Conditional Registration with the Western Australian Medical Board on the basis of my registration with the General Medical Council in the UK; which means that I can be granted full registration after working for a year in Australia. I would then be eligible to apply for permanent residence with 155 points.

My impression from the immi.gov web site was that to apply for independent migration, one needs to be outside Australia. However, when I went through the application form, I found the following statement:

"Applications for an ‘offshore’ GSM visa are usually made from
outside of Australia, however, you may make an ‘offshore’ visa
application while in Australia provided the conditions attached
to your current visa do not prevent you from doing so."

Does anyone know if there has been any precedence for applying for an offshore visa when one lives in Australia already? I understand that I have to be physically outside Australia when I apply and when I get the visa but I don't know if a week-long trip to England would qualify.

Any advice will be appreciated.
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Old Apr 30th 2008, 12:53 am
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Default Re: 457 to Independent (offshore) GSM

Hi there,

we were recently looking into this. My husband is a nurse and we are here on a 457. His employers recently gave us 2 options:

1. to apply for independent visa, as you are suggesting. They said that we could apply from here but would need to be somewhere out of australia when the visa was actually issued. Now, for a family of 5 that is pretty pricey.

2. to apply for ENS on-shore visa, sponsored permanent residency with employer. We do not have to be off-shore when this visa is issued.

Needless to say we went with option 2! Paperwork completed and ready to send this week.

Hope this helps, am no expert but that is the advice we were given.

Sarah
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Old Apr 30th 2008, 1:13 am
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Default Re: 457 to Independent (offshore) GSM

Many people have done and will continue to do what you have outlined - apply for an 'offshore' visa whilst in Australia and when it is ready to be granted leave for a week (usually to New Zealand). It;s pretty common and the immigration department are familiar with it also.
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Old Apr 30th 2008, 1:37 am
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Default Re: 457 to Independent (offshore) GSM

Thanks AndySarah, yes, I know about the Employer Nomination Scheme; however it binds you to the employer for 2 years and I would rather not do that if I have an option. I understand that, as a nurse, your husband would be employed by the state healthcare authority which means that he does not need to be employed by the same hospital next year but the 457 or the ENS are not the best options if you want the freedom to do what you want.

Thanks, tking. I understand the clause about getting the visa abroad; do you know though if it is OK to APPLY for it when you're just visiting a country that you no longer or do not have a permanent address in?
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Old Apr 30th 2008, 1:39 am
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Default Re: 457 to Independent (offshore) GSM

Originally Posted by docmitra
Thanks AndySarah, yes, I know about the Employer Nomination Scheme; however it binds you to the employer for 2 years and I would rather not do that if I have an option.
If I am not mistaken Regional migration scheme 857 visa is the one that has a 2 year bound to the employer but not for ENS.
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Old Apr 30th 2008, 1:54 am
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Default Re: 457 to Independent (offshore) GSM

I think you can apply from anywhere - as long as your contact details are kept current, therefore, you could apply online in Burkino Faso (for example) while on business (enter your permanent home address in UK).

If you are already in Australia (on a 457) apply online here, use your address and contact details in Australia and then (in a few months time) your case officer will contact you to let you make arrangements to go to NZ (or wherever you fancy) to get the visas granted and put in your passports.

In answer to your question - you can apply anywhere - they just want to be able to keep in touch.
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Old Apr 30th 2008, 2:04 am
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Default Re: 457 to Independent (offshore) GSM

Cool! Thanks tking!

So I should be able to apply using my in-laws address in Leeds as our permanent address! That makes it so convenient, thank you so much!
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Old Apr 30th 2008, 2:42 am
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Default Re: 457 to Independent (offshore) GSM

Originally Posted by docmitra
Thanks AndySarah, yes, I know about the Employer Nomination Scheme; however it binds you to the employer for 2 years and I would rather not do that if I have an option. I understand that, as a nurse, your husband would be employed by the state healthcare authority which means that he does not need to be employed by the same hospital next year but the 457 or the ENS are not the best options if you want the freedom to do what you want.

Thanks, tking. I understand the clause about getting the visa abroad; do you know though if it is OK to APPLY for it when you're just visiting a country that you no longer or do not have a permanent address in?
You are not tied to any employer under the ENS or the RSMS: migration legislation is not intended to overrule the ability of an employee to change jobs.

This said, there is a requirement under the RSMS for the employment to continue for at least 2 years, but in practice the Department of Immigration will not seek visa cancellation if genuine efforts have been made to sustain the employment relationship.

I would look at the ENS ...

Best regards.
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Old Apr 30th 2008, 3:33 am
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Default Re: 457 to Independent (offshore) GSM

Originally Posted by Alan Collett
You are not tied to any employer under the ENS or the RSMS: migration legislation is not intended to overrule the ability of an employee to change jobs.

This said, there is a requirement under the RSMS for the employment to continue for at least 2 years, but in practice the Department of Immigration will not seek visa cancellation if genuine efforts have been made to sustain the employment relationship.

I would look at the ENS ...

Best regards.
Just to add to and endorse Alan's comments, anyone applying for an ENS visa will need to show a contract for three years' employment with the sponsor and allowing the possibility of extension - "be for at least 3 years, and not subject to any express exclusion of the possibility of renewal". While it's true that the Migration Act and Regulations do not impose any sanctions on ENS visa holders who leave their ENS employers in a shorter period, the contract itself may contain adverse consequences and depending on the industry and occupation, employers may also be able to adversely impact your future career in Australia, so this is a step which needs to be considered carefully.

Cheers,

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Old Apr 30th 2008, 3:46 am
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Default Re: 457 to Independent (offshore) GSM

Thanks George.

Re the 3 year contract: my understanding is that so long as the contract is not for a fixed period of less than 3 years there is no requirement for the contract to specify the duration of the employment.

Our clients' ENS nominations have been granted on that footing.

Best regards.
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Old Apr 30th 2008, 3:54 am
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Default Re: 457 to Independent (offshore) GSM

Originally Posted by Alan Collett
This said, there is a requirement under the RSMS for the employment to continue for at least 2 years, but in practice the Department of Immigration will not seek visa cancellation if genuine efforts have been made to sustain the employment relationship.

I would look at the ENS ...

Best regards.
Hi Alan,

Are you able to describe some senarios where someone had made a genuine efforts have been made to sustain the employment relationship for example employer terminating employee's employment due to non-performance/clash/elimination of position...

How would a person demonstrate genuine efforts have been made to sustain the employment relationship if the employment is terminated by the employer?
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Old Apr 30th 2008, 5:12 am
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Default Re: 457 to Independent (offshore) GSM

In a situation where an employment is terminated by the employer I doubt DIAC would be interested in investigating the matter - unless the employer was somehow associated with the employee and the nomination was only ever a sham arrangement to secure permanent residency for the individual employee.

Best regards.
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Old Apr 30th 2008, 5:17 am
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Default Re: 457 to Independent (offshore) GSM

Originally Posted by Alan Collett
In a situation where an employment is terminated by the employer I doubt DIAC would be interested in investigating the matter - unless the employer was somehow associated with the employee and the nomination was only ever a sham arrangement to secure permanent residency for the individual employee.

Best regards.
Are you saying that if an employee on a regional migration scheme 857 visa got sacked before the 2 years is up, he/she would still be a permanent resident with the 857 without any issues from immigration at all?
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Old Apr 30th 2008, 5:18 am
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Default Re: 457 to Independent (offshore) GSM

I am saying it is improbable there would be repercussions in a visa context.

Best regards.
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Old Apr 30th 2008, 5:57 am
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Default Re: 457 to Independent (offshore) GSM

Originally Posted by Alan Collett
Thanks George.

Re the 3 year contract: my understanding is that so long as the contract is not for a fixed period of less than 3 years there is no requirement for the contract to specify the duration of the employment.

Our clients' ENS nominations have been granted on that footing.

Best regards.
Hi Alan,

I've quoted the text of reg. 5.19(4) in the post above - I agree that often the Department treats a "permanent appointment" contract as satisfying the three year rule.

Looky, in answer to your question, it's a case by case situation with respect to genuine efforts on the part of an RSMS employee, but if terminated then there isn't a problem, it's only where the employee leaves voluntarily that you could have issues under the legislation.

Cheers,

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