Legal advice required

Old Mar 9th 2016, 4:41 am
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Default Legal advice required

Hi guys, I've been here in Perth nearly 5 years and I'm on my second 457 visa with the same company. I'm too old to get permanent residency, so we have a paid parent visa in process with 11 months to go.
I decided to change employment in October 2015 and was offered a similar position with a rival company. The new company was fully aware that a 457 visa was required at the time of the interview and that 4 weeks notice was required by my company to terminate my employment.
At the end of November 2015 I received a phone call from the Hr manager of the new company stating that they expected me to start on that day and I informed him that I hadn't even received an employment offer yet. He apologised and said that their hr depth had moved to a different state and he would get it sorted. 2 days later the offer came through and I excepted and I subsequently resigned from my employment and gave the new company a start date. At that time I just happened to equire that they changed the visa over. It turned out they hadn't and they would have to apply for it which would take 4-6 weeks
To cut a long story short the visa has been denied twice and I have been unable to work since December 2015.
It's now getting to the stage that we probably will have to sell our home and move back to the uk.
What grounds do I have for compensation for loss of employment through negligence on their part as the telephone call that they were expecting me to start implies that everything had been done to get the visa.
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Old Mar 9th 2016, 7:11 am
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Default Re: Legal advice required

Originally Posted by mvagusta View Post
Hi guys, I've been here in Perth nearly 5 years and I'm on my second 457 visa with the same company. I'm too old to get permanent residency, so we have a paid parent visa in process with 11 months to go.
I decided to change employment in October 2015 and was offered a similar position with a rival company. The new company was fully aware that a 457 visa was required at the time of the interview and that 4 weeks notice was required by my company to terminate my employment.
At the end of November 2015 I received a phone call from the Hr manager of the new company stating that they expected me to start on that day and I informed him that I hadn't even received an employment offer yet. He apologised and said that their hr depth had moved to a different state and he would get it sorted. 2 days later the offer came through and I excepted and I subsequently resigned from my employment and gave the new company a start date. At that time I just happened to equire that they changed the visa over. It turned out they hadn't and they would have to apply for it which would take 4-6 weeks
To cut a long story short the visa has been denied twice and I have been unable to work since December 2015.
It's now getting to the stage that we probably will have to sell our home and move back to the uk.
What grounds do I have for compensation for loss of employment through negligence on their part as the telephone call that they were expecting me to start implies that everything had been done to get the visa.
I'm sorry to hear of the difficulties you've had.

To be honest, I really think you need to get in touch with a MARA registered agent ASAP. I think this is probably something more than the forum can help with. We could try to give advice, but it would never be legal advice, and that is really what you need. I would recommend George Lombard. He's very friendly, and has an excellent reputation.

I hope you manage to get it sorted.
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Old Mar 9th 2016, 8:11 am
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Default Re: Legal advice required

To be honest I think you need to focus upon sorting out your current visa situation as you are quite possibly already in breach of visa regulations?

I cannot see that you are going to have any luck trying to sue the company for loss of earnings. Whilst the company do sound a tad unprofessional to me, you also had a responsibility to ensure that your visa was in place as well and "just happened to ask about it" indicates that perhaps you were a little too blasé about the whole thing. I think you would not have a leg to stand on and wouldn't recommend you waste any time on it or throw good money after bad.

Your issue now is that you become in breach of the 457 visa once you have reached the 90 days not in the employment, which I guess is coming up soon or has perhaps already passed? And of course the old employer should have taken steps to cancel the 457 anyway. If you wanted to stay in Australia until the parent visa comes through then I would recommend you speak to a migration agent, you could probably get onto bridging visa E which has no work or travel rights, although you could apply to get work rights on grounds of hardship.
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Old Mar 9th 2016, 9:25 am
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Default Re: Legal advice required

The current Visa Is still in place as it has been checked.

I have been advised that diac don't actually cancel these visas even if they have been informed.

I have two job offers but they are struggling to get the visa approved I will ask about the bridging visa but with the sort of luck I'm having at the moment I don't hold out much hope.
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Old Mar 9th 2016, 9:27 am
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Default Re: Legal advice required

Originally Posted by mvagusta View Post
The current Visa Is still in place as it has been checked.

I have been advised that diac don't actually cancel these visas even if they have been informed.

I have two job offers but they are struggling to get the visa approved I will ask about the bridging visa but with the sort of luck I'm having at the moment I don't hold out much hope.
Who told you that? DIBP give you three months to find a new job/sponsor. They're not going to allow you to stay if you don't have those.
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Old Mar 9th 2016, 9:36 am
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Default Re: Legal advice required

Originally Posted by mvagusta View Post
The current Visa Is still in place as it has been checked.

I have been advised that diac don't actually cancel these visas even if they have been informed.

I have two job offers but they are struggling to get the visa approved I will ask about the bridging visa but with the sort of luck I'm having at the moment I don't hold out much hope.
DIBP state:
  • Condition 8107

    This condition is only relevant to a primary holder of a subclass 457 visa. You must:
    • only work in your nominated occupation
    • start work within 90 days of arrival in Australia if you were outside Australia when your visa was granted, or within 90 days after your visa was granted if you were already in Australia at the time
    • only work for the sponsor, who nominated the position you are working in (if your sponsor is a standard business sponsor and is an Australian business, you can also work for an associated entity of the sponsor)
    • not cease employment for a period of more than 90 consecutive days
    • obtain any licence, registration or membership necessary to perform your occupation in Australia and comply with any provisions, and
    • if your visa was granted on or after 1 December 2015 you must also:
    • hold the licence, registration or membership within 90 days of arrival in Australia if your visa was granted while you were outside Australia, or within 90 days after your visa was granted if your visa was granted while you were in Australia
    • not engage in work that is inconsistent with your licence, registration or membership
    • notify us in writing as soon as practicable if your application for the licence, registration or membership is refused
    • notify us in writing as soon as practicable if your licence, registration or membership ceases to be in force or is revoked or cancelled.
    • To notify us of registration, licence or membership issues you should send an email to: [email protected]
    • You are considered to have ceased employment when either you or your employer notifies us of the date you stopped work.
    • If you stop working for your sponsor, you must do one of the following within 90 days:
    • find another employer to sponsor you (they will need to lodge a nomination and it must be approved before you can start working for them)
    • apply for a different visa
    • make arrangements to leave Australia.
    • If more than 90 consecutive days have passed since the date your sponsor advised us you would be ceasing employment on, you could be in breach of Condition 8107 and your visa could be cancelled.
    • If you abandon your employment, or are absent without leave, you could be considered to have ceased employment.
    • You must apply for another subclass 457 visa if your visa is about to expire and you want to keep working in Australia.
    • If you want to change employers while you hold a valid 457 visa you do not need to apply for a new subclass 457 visa, however your new sponsor must lodge a new nomination and this must be approved before you commence working for the new sponsor.

DIBP can, and do, cancel visas. I wouldn't assume that they won't.
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Old Mar 9th 2016, 10:53 am
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Default Re: Legal advice required

Originally Posted by mvagusta View Post
To cut a long story short the visa has been denied twice and I have been unable to work since December 2015.
Why? Do you know?
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Old Mar 9th 2016, 11:09 am
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Default Re: Legal advice required

Originally Posted by mvagusta View Post
The current Visa Is still in place as it has been checked.

I have been advised that diac don't actually cancel these visas even if they have been informed.

I have two job offers but they are struggling to get the visa approved I will ask about the bridging visa but with the sort of luck I'm having at the moment I don't hold out much hope.
If you have not worked for your sponsoring employer for 90 days you are in breach of your visa conditions. The fact that somebody has not got around to cancelling it yet is irrelevant and you cannot just keep quiet and hope to fly under the radar. You need to look to redress this ASAP before the 90 days is up or before it comes to light, which it will in due course.
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Old Mar 9th 2016, 1:11 pm
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Default Re: Legal advice required

Originally Posted by mvagusta View Post

I have been advised that diac don't actually cancel these visas even if they have been informed.
Whoever told you that is talking rubbish.

DIBP (they haven't been DIAC for years) cancel 457s whenever that is the correct route to take - as per Mrsgreenstar's info.

I would suggest professional advice to sort this out asap.
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