When can i apply for citizenship when on an RSMS visa permanent residency?

[Growler]

Hi can anyone tell me when i can apply for citizenship if im on an rsms permanent visa how long after i enter the country on this visa would i have to wait? Also would i still have to complete my two years with the employer who sponsored me once i had my citizenship granted?

 

Many Thanks...

[Rammygirl]

You need to be in Oz for 4 years minimum to qualify for citizenship, check it on the citizenship link from the immi.gov.au website.

[Gollywobbler]

Hi can anyone tell me when i can apply for citizenship if im on an rsms permanent visa how long after i enter the country on this visa would i have to wait? Also would i still have to complete my two years with the employer who sponsored me once i had my citizenship granted?

 

Many Thanks...

 

Hi Bruce

 

You are asking two different questions, hon, being:

 

Q1: When can I apply for Citizenship?

A1: http://www.citizenship.gov.au/

You have to have spent at least 1461 days and nights with your feet on Australian soil in order to qualify for Citizenship. (365 x 4 +1 to cater for every 4th year being a Leap Year. 4 years, in other words. (If the number I have worked out is wrong, please blame Bill Gates because I used Excel to do the sums for me.) However it does not have to be unbroken years. Let us say that during your first 5 years as a PR, you take several holidays abroad so Australia needs to have been your only or main base until you have spent the magic 1461 days and nights physically on Aussie terra firma. It might take you 4.5 years to reach the magic total.

 

The way they work it out is that every person who is not an Australian Citizen has their passport date-stamped on every entry to and exit from Australia. The passport is then swiped so that the DIAC computer can keep an exact track of the non-Citizen's entry to and exit from Oz.

 

 

and

 

Q2: Do I have to stick with the employer who is sponsoring me for my RSMS visa even after I have obtained Citizenship?

A2: Perish the thought! Technically the obligation is to stay with the sponsoring employer for a total of 720 days or 2 years after you have reached Oz and started work. However as a matter of Policy, DIAC will not try to cancel an RSMS visa if the parties have managed to put up with each other for 12 months.

 

A LOT of RSMS visa holders don't even get as far as completing 12 months - either they leave the job or the RSMS employer kicks them out. There is no Condition on an RSMS visa that requires the visa holder to work for the sponsoring employer for any set length of time. Also, a second employer is not bound by the terms of his employee's RSMS visa so a second employer does not assume any Immigration Law obligations.

 

I know two British ladies who were both employed by the same employer and the employer sponsored each of them for RSMS visas. Within 6 weeks, both ladies concluded that they had landed themselves with the Employer From Hell so they walked out after just 6 weeks. The employer dobbed them both in to DIAC. DIAC trotted out the boilerplate - they sent their usual Notice of Intent to Consider Cancellation (known as an NOICC for short.)

 

However the real question that DIAC were considering is S137Q of the Migration Act 1958. S137Q says that the Minister may cancel an RSMS visa if the employment arrangements with the sponsoring employer fall apart. The operative word is "may," not "must."

In reaching his conclusion, S137Q requires the Minister to consider whether the employee has made a "genuine effort" to fulfil the employment obligations that gave rise to the visa.

 

What is a "genuine effort?" The term is not defined in the Migration Act, so what is it supposed to mean? I was quite worried about this with one of the two ladies because she had ostensibly been hired to work as a Medical Administrator. When she reached the employer, it turned out that all the employer actually wanted her to do was to work as a poorly-paid Assistant-in-Nursing in an Aged Care Home. How can one make a "genuine effort" to do a job that has turned out not to exist? The question vexed me but it didn't vex DIAC. According to DIAC's logic, if the job doesn't exist then clearly the employee has made a genuine effort to do it but his/her willingness has been thwarted by the non-existence of the job. That is not a matter within the employee's own control so the employee has clearly made a "genuine effort." Hmmmm. I wouldn't interpret the wording so generously but what the hell! DIAC confirmed that the Minister does not intend to cancel this lady's RSMS visa. I presume that the employer was left to spit nails!

 

Cheers

 

Gill

[snifter]

Gill, once again, thank you for your comprehensive reply. Much appreciated.

[barbaitch]

You're priceless, Gill!

 

Yes, my OH and I made 15 visits to Oz after our last departure as PRs between 1993 and our last trip in Oct 2011, when we applied (successfully) onshore for PR after a long absence from Oz, and were informed that we'll be eligible to apply for Citizenship (upon our return to live there) in 2years 8months from arriving - taking into account the number of days and nights we've spent there in all our visits to Oz. This is what we intend to do in the next 18 months or so.

 

All the best! x

[Growler]

Thanks for the replies everyone. Gill, really appreciate your help. Just concerned that if the employer did terminate my employment (targets very high! in this job) what on earth would i do....

[Gollywobbler]

Thanks for the replies everyone. Gill, really appreciate your help. Just concerned that if the employer did terminate my employment (targets very high! in this job) what on earth would i do....

 

Hi Bruce

 

The short answer is that you would not worry!

 

If your current employer terminates your contract, that is outside your own control so DIAC would not try to penalise you for it. You would just find another employer and that would be that as far as DIAC are concerned. A second employer does not have to shoulder any of the sponsor's obligations under an RSMS visa - the second employer sinply employs the RSMS visa holder in exacly the same way as s/he might employ an Australian Citizen.

 

You sound worried. What is the real story, please? You seem to be anxious about your current employer so is the real truth that you and the employer are not really hitting it off with each other? If yes, then please send me a PM and we will see whether we can sort that out for you.

 

Cheers

 

Gill

[Growler]

Hi Gill ive pm'd you , many thanks

[Gollywobbler]

You're priceless, Gill!

 

Yes, my OH and I made 15 visits to Oz after our last departure as PRs between 1993 and our last trip in Oct 2011, when we applied (successfully) onshore for PR after a long absence from Oz, and were informed that we'll be eligible to apply for Citizenship (upon our return to live there) in 2years 8months from arriving - taking into account the number of days and nights we've spent there in all our visits to Oz. This is what we intend to do in the next 18 months or so.

 

All the best! x

 

Hi Barbaitch

 

I'd be inclined just to double check what you were told, though I think it is probably accurate.

 

According to the Citizenship Act 2007, anybody who became a PR prior to 1st July 2007 only had to complete 720 days of residence in Oz, as a PR, in order to qualify for Australian Citizenship. 'Becoming a PR' for this purpose meant physically setting foot in Australia, in possession of a PR visa, on or before 30th June 2007.

 

If that witching hour was missed then the new PR would have to spend a total of 4 years in Oz in order to become eligible for Citizenship after 4 years instead of 2 years.

 

I'm pretty sure that the provision I described in my first paragraph about this was transitional and that it ceased to be effective at midnight on 30 June 2010. (It was relevant to us at the time so I kept a fairly careful track of developments about it.) I think the relevant Law said that if the pre-1st July 2007 PR had not applied for Citizenship before 1st July 2010 then the transitional right to rely on 2 years residence would be lost and the person would have to rely on 4 years residence instead, in that case.

 

I'm not 100% sure but I think I am right. If so, when did you start making enquiries about returning to Oz? Did you do so before 1st July 2010? If yes then had you already spent 720 days/nights in Australia by then? If yes, is it necessary to have one's feet on Australian soil at the time of applying for Australian Citizenship? (I suspect it is not and never has been.)

 

It could be that my questions are irrelevant because the 2 year right may have vanished completely and for all time on 1st July 2010. I'm pretty sure that this was what the legislators intended and I am not sure that the right could be revived/exhumed if it turns out that DIAC gave you erroneous advice prior to 1st July 2010. I suspect that there was an absolute cut-off on that date because very little turns on whether or not one can apply for Australian Citizenship immediately. The main beneficiaries of Australian Citizenship are the political parties who want Australian Citizens to support them at General Elections, after all. Depriving the political parties of a few extra voters is not the end of the world, not even for them, so I suspect that the 2 year right cannot be revived if it has been lost.

 

However if the issue might be relevant to you then it might just be worth double-checking.

 

Cheers

 

Gill

[Gollywobbler]

My maths is hopeless. 2 calendar years is 730 days, not 720. If one of the relevant years is a Leap Year then I guess that "2 years" comes to 731 days. Mathematically quick, I am, as we can all now suss, though we may reach differing conclusions about my (non-existent, imho) mathematical abilities.....

 

In practical terms, one day makes no difference. For Citizenship purposes it probably does.

 

We will 'draw a veil' over the rest of my mathematical incompetence, I think....!

 

Sorry for the errors.

 

Gill

[barbaitch]

Hi Gill:

 

Yes, We lived in Oz for almost 24 years as PRs prior to leaving in 1993 with 5yr RRVs (for personal reasons; all substantial). Through circumstances boc, we were unable to return permanently during that time, so returned prior to expiry and were granted further 5yr RRVs. Ours is a long story, so won't tell all here, but in the 18 years between our first departure from, in 1993, and our last trip to Oz in Oct 2011 (when we applied onshore for PR -- successfully, after a nail-biting eight months, having met all DIAC's criteria and proved extensive close personal/cultural ties to Oz) we made 15 visits to our extended family. When we went to DIAC in Currie Street to have our passports issued with new RRVs, we were told (and the officer turned his computer monitor around so we could see for ourselves) that upon our return to live in Adelaide (which we intend doing in approx 18 months time, or earlier, depending upon how long it takes to 'shut up shop' in England), we will be eligible to apply for Citizenship 2yrs 8mths from our arrival --- having calculated the number of days and nights we'd spent in Oz during those visits.

 

I've kept this as brief as possible, so hope I've adequately explained the important bits, so it all makes sense.

 

Still, if, when we do go back to Oz, it turns out DIAC were wrong, well, no worries; we have no plans to leave again.

 

All the best,

barbh

 

Hi Barbaitch

 

I'd be inclined just to double check what you were told, though I think it is probably accurate.

 

According to the Citizenship Act 2007, anybody who became a PR prior to 1st July 2007 only had to complete 720 days of residence in Oz, as a PR, in order to qualify for Australian Citizenship. 'Becoming a PR' for this purpose meant physically setting foot in Australia, in possession of a PR visa, on or before 30th June 2007.

 

If that witching hour was missed then the new PR would have to spend a total of 4 years in Oz in order to become eligible for Citizenship after 4 years instead of 2 years.

 

I'm pretty sure that the provision I described in my first paragraph about this was transitional and that it ceased to be effective at midnight on 30 June 2010. (It was relevant to us at the time so I kept a fairly careful track of developments about it.) I think the relevant Law said that if the pre-1st July 2007 PR had not applied for Citizenship before 1st July 2010 then the transitional right to rely on 2 years residence would be lost and the person would have to rely on 4 years residence instead, in that case.

 

I'm not 100% sure but I think I am right. If so, when did you start making enquiries about returning to Oz? Did you do so before 1st July 2010? If yes then had you already spent 720 days/nights in Australia by then? If yes, is it necessary to have one's feet on Australian soil at the time of applying for Australian Citizenship? (I suspect it is not and never has been.)

 

It could be that my questions are irrelevant because the 2 year right may have vanished completely and for all time on 1st July 2010. I'm pretty sure that this was what the legislators intended and I am not sure that the right could be revived/exhumed if it turns out that DIAC gave you erroneous advice prior to 1st July 2010. I suspect that there was an absolute cut-off on that date because very little turns on whether or not one can apply for Australian Citizenship immediately. The main beneficiaries of Australian Citizenship are the political parties who want Australian Citizens to support them at General Elections, after all. Depriving the political parties of a few extra voters is not the end of the world, not even for them, so I suspect that the 2 year right cannot be revived if it has been lost.

 

However if the issue might be relevant to you then it might just be worth double-checking.

 

Cheers

 

Gill

[jim and adel]

Hi Bruce

 

The short answer is that you would not worry!

 

If your current employer terminates your contract, that is outside your own control so DIAC would not try to penalise you for it.

 

Have the rules softened a bit recently? There used to be the occasional news of employer sponsored migrants being removed from Aus because of a breakdown in the employment relationship - I remember it happening in Adelaide to a member on here a few years ago when she was made redundant.

 

Jim

[Gollywobbler]

Have the rules softened a bit recently? There used to be the occasional news of employer sponsored migrants being removed from Aus because of a breakdown in the employment relationship - I remember it happening in Adelaide to a member on here a few years ago when she was made redundant.

 

Jim

 

Hi Jim

 

Hi Jim

 

It sounds to me as if you are thinking of people who have been employed on the temporary sc 457 visa. Bruce has asked about the RSMS visa, which confers immediate PR on the visa holder.

 

DIAC are extremely reluctant to cancel PR status. If they went around cancelling RSMS visas lightly, there would be no point in keeping the RSMS visa going. There is every merit in keeping "the RSMS concept" going because the employer who needs the help is often based in a remote location that no home-grown Aussie is willing to go to and many a self-respecting prospective immigrant employee will not consider the place either unless he is offered the carrot of immediate PR.

 

It sounds as if the lady whom you described was probably on a sc 457 visa. Those can be cancelled and the employee kicked out without any fault on the part of the visa holder because the sc 457 is only designed to provide a temporary solution to the fluctuations of the Australian workforce.

 

Cheers

 

Gill

[jim and adel]

Hi Jim

 

Hi Jim

 

It sounds to me as if you are thinking of people who have been employed on the temporary sc 457 visa. Bruce has asked about the RSMS visa, which confers immediate PR on the visa holder.

 

DIAC are extremely reluctant to cancel PR status. If they went around cancelling RSMS visas lightly, there would be no point in keeping the RSMS visa going. There is every merit in keeping "the RSMS concept" going because the employer who needs the help is often based in a remote location that no home-grown Aussie is willing to go to and many a self-respecting prospective immigrant employee will not consider the place either unless he is offered the carrot of immediate PR.

 

It sounds as if the lady whom you described was probably on a sc 457 visa. Those can be cancelled and the employee kicked out without any fault on the part of the visa holder because the sc 457 is only designed to provide a temporary solution to the fluctuations of the Australian workforce.

 

Cheers

 

Gill

 

Thanks Gill. I missed the visa type mentioned here and I'm sure the cases I remember were 457s. Certainly no reason for DIAC to cancel a PR because of a termination.

 

Cheers, Jim

[Ladybug14]

Hi Bruce

 

You are asking two different questions, hon, being:

 

Q1: When can I apply for Citizenship?

A1: http://www.citizenship.gov.au/

You have to have spent at least 1461 days and nights with your feet on Australian soil in order to qualify for Citizenship. (365 x 4 +1 to cater for every 4th year being a Leap Year. 4 years, in other words. (If the number I have worked out is wrong, please blame Bill Gates because I used Excel to do the sums for me.) However it does not have to be unbroken years. Let us say that during your first 5 years as a PR, you take several holidays abroad so Australia needs to have been your only or main base until you have spent the magic 1461 days and nights physically on Aussie terra firma. It might take you 4.5 years to reach the magic total.

 

The way they work it out is that every person who is not an Australian Citizen has their passport date-stamped on every entry to and exit from Australia. The passport is then swiped so that the DIAC computer can keep an exact track of the non-Citizen's entry to and exit from Oz.

 

 

and

 

Q2: Do I have to stick with the employer who is sponsoring me for my RSMS visa even after I have obtained Citizenship?

A2: Perish the thought! Technically the obligation is to stay with the sponsoring employer for a total of 720 days or 2 years after you have reached Oz and started work. However as a matter of Policy, DIAC will not try to cancel an RSMS visa if the parties have managed to put up with each other for 12 months.

 

A LOT of RSMS visa holders don't even get as far as completing 12 months - either they leave the job or the RSMS employer kicks them out. There is no Condition on an RSMS visa that requires the visa holder to work for the sponsoring employer for any set length of time. Also, a second employer is not bound by the terms of his employee's RSMS visa so a second employer does not assume any Immigration Law obligations.

 

I know two British ladies who were both employed by the same employer and the employer sponsored each of them for RSMS visas. Within 6 weeks, both ladies concluded that they had landed themselves with the Employer From Hell so they walked out after just 6 weeks. The employer dobbed them both in to DIAC. DIAC trotted out the boilerplate - they sent their usual Notice of Intent to Consider Cancellation (known as an NOICC for short.)

 

However the real question that DIAC were considering is S137Q of the Migration Act 1958. S137Q says that the Minister may cancel an RSMS visa if the employment arrangements with the sponsoring employer fall apart. The operative word is "may," not "must."

In reaching his conclusion, S137Q requires the Minister to consider whether the employee has made a "genuine effort" to fulfil the employment obligations that gave rise to the visa.

 

What is a "genuine effort?" The term is not defined in the Migration Act, so what is it supposed to mean? I was quite worried about this with one of the two ladies because she had ostensibly been hired to work as a Medical Administrator. When she reached the employer, it turned out that all the employer actually wanted her to do was to work as a poorly-paid Assistant-in-Nursing in an Aged Care Home. How can one make a "genuine effort" to do a job that has turned out not to exist? The question vexed me but it didn't vex DIAC. According to DIAC's logic, if the job doesn't exist then clearly the employee has made a genuine effort to do it but his/her willingness has been thwarted by the non-existence of the job. That is not a matter within the employee's own control so the employee has clearly made a "genuine effort." Hmmmm. I wouldn't interpret the wording so generously but what the hell! DIAC confirmed that the Minister does not intend to cancel this lady's RSMS visa. I presume that the employer was left to spit nails!

 

Cheers

 

Gill

Hi Gill. I'm not sure about changes in RSMS obligations. I am on a 187 visa and I'm planning to leave after 1 year to be with my fiance in Victoria. I am a bit scared but we want to be together.

[snifter]

Hi Gill. I'm not sure about changes in RSMS obligations. I am on a 187 visa and I'm planning to leave after 1 year to be with my fiance in Victoria. I am a bit scared but we want to be together.

 

Hello and welcome to the forum This thread is an old one, dating from 2012 and the person you are posting to doesn't really visit the forum as much these days for one reason and another. She may be along to answer but may not.

 

If you wanted to repost your visa concerns in a new thread it may get some responses.

[Blossom]

The conditions of the 187 are still have you have to stay with your employer for two years after the visa is granted or your visa can be cancelled. The times it is ok to leave is if you have been made redundant etc, not just to move to another state. Personally (and that's the type of visa I'm on) I wouldn't risk it.

[Ladybug14]

The conditions of the 187 are still have you have to stay with your employer for two years after the visa is granted or your visa can be cancelled. The times it is ok to leave is if you have been made redundant etc, not just to move to another state. Personally (and that's the type of visa I'm on) I wouldn't risk it.

We rang up immigration and we asked them if it's better for us to apply for a partner visa from 187 visa. They said it would be a waste time of time and money. But we dont want to want to wait for another 1 year to be together. He came here to be with me for 8 months and worked four different jobs at the same time just to survive. But we have decided it would be better for him to go back to victoria. We've been apart for 5 months now. And we are planning to be together in july (1 year after PR and 6 months away from each other).

[SonicBlue82]

We rang up immigration and we asked them if it's better for us to apply for a partner visa from 187 visa. They said it would be a waste time of time and money. But we dont want to want to wait for another 1 year to be together. He came here to be with me for 8 months and worked four different jobs at the same time just to survive. But we have decided it would be better for him to go back to victoria. We've been apart for 5 months now. And we are planning to be together in july (1 year after PR and 6 months away from each other).

 

Hi Ladybug14,

 

How long have to been in Australia? Do you plan on becoming a citizen? You will become eligible for citizenship after being in Australia for at least 4 years and at least 1 of the 4 years has been on PR visa. Using my situation as an example, I have been in Australia for 4 years and 9 months. Come September, I will have reached 1 year of PR on my RSMS 187 visa. I will then become eligible to apply for citizenship, which will probably occur by Australia Day next year. Once I become a citizen, any visa ceases to exist thus making any conditions and employer obligations non existent. So obtaining my citizenship after 1 year of PR will allow me to freely move on from my current employer. Not sure if any of this applies to your situation, but I hope this helps you understand how it all works?

 

Another thing to consider... as previously mentioned in this thread, the 'rules' of the RSMS visa conditions are that you must make a 'genuine effort' to work for the sponsoring employer for at least 2 years from the date that the RSMS visa was granted. And we know that the Migration Act does not define 'genuine effort'. So the definition of 'genuine effort' is open to one's opinion and interpretation. That being said, DIBP is very unlikely to cancel a PR visa if you have worked for your sponsoring employer for at least 12 months. Maybe you and your employer have an agreement that the position you have been sponsored for is no longer available (if you catch my drift). Maybe your employer cannot keep you employed in that position any longer and therefore needs to end your employment. What kind of relationship do you have with your employer? Would they be happy for you to move on and leave on good terms? Going back to the genuine effort... if your employer ends the contract and your employment with the sponsoring employer has ended and it was initiated by the employer, that is no fault of your own and you have therefore made a 'genuine effort' to fulfill your obligations. Maybe this will give you something to work with

 

Good luck!

[Blossom]

The problem with that is they are then making you redundant and there are rules and laws which come with that which most employers wouldn't be too happy with.

[SonicBlue82]

The problem with that is they are then making you redundant and there are rules and laws which come with that which most employers wouldn't be too happy with.

 

Really? So if a sponsoring employer makes you redundant they can get into trouble? I had no idea... Any idea what would happen? Are they fined? Or...

[Blossom]

If they make you redundant then there are rules on them having to give you redundancy pay. They are also by making you redundant saying that the job no longer exists. So they then can't employ someone else for it. If they do then they can get in trouble with fair work Australia. This would apply to everyone on a rsms as they have to be employees rather than casuals (who they can not have work for and then employ someone else straight away with).