# 457 Notice of Cancellation, 189 Lodged



## SNAD (Aug 6, 2016)

Hi all,

Apologise if this issue has been talked to death before, but I wanted to bring this matter up again as I am currently going through this. I did try searching for similar incidents but wasn't able to find any, so if you do find some please let me know in the comments below

So here's the story

I have been in AU for nearly 9 years now (starting off from 573 visa, on to 485 visa, on to 457 visa [now notified to be cancelled] and have also recently lodged 189 visa)

I was on a 457 visa and around 1 year 5 or 6 months into it the company has made me redundant (this happened in beginning of March 2016) - and it was made obvious to me that I have 90 days to find a new sponsor or else I would have to leave AU (given DIBP cancels it on day 90)

Luckily by April, I got invited to apply for a 189 visa based on my Post Grad (70 pts all up). By May 2016, I received an acknowledgement by DIBP that a 'valid application for Skilled - Independent Subclass 189' has been received along with a Bridging Visa-A Grant notice. CO was also assigned at this time.

There are currently no outstanding documents left for 189 as I was pretty on point in making sure I apply everything within the first couple of days so my 189 application CO get's all the info he/she needs asap.

As of Monday (8th Aug 2016) it will be day 90 since CO had been assigned and an acknowledgement of a valid application had been received.

I got an email from DIBP early this month which stated 'Notice of Intention to consider cancellation of my 457' on the grounds of ceasing employment with my sponsor exceeding 90 consecutive days - and the visa would be considered to be cancelled.

Now here's the problem:

I mistakenly assumed that having a bridging visa 'grant A' that I got from the 189 allows me to stay legally in AU and work full time in AU - more specifically, it was only till I received this letter I realised 'visa cancellation' and 'visa expiry' has completely different outcomes as I was, mistakenly, using those interchangeably - specifically in relation to post-redundancy paradigm.

DIBP expects me to reply back by Tuesday if I disagree with their cancellation notice and they obviously require;
a) why do I think it should not be cancelled, or 
b) request for more time to get back to them about how i feel about this cancellation (usually they give you 5 more business days)

Obviously as of Monday I will request for a bit more time (5 more business days) till I get back to them as currently i am going to get an agent involved in what to do from here

My understanding is, which is also clearly stated in the 457, that if 457 is 'cancelled' it means any Bridging Visa Grant is also cancelled, meaning I have to leave AU before my 457 is 'actually cancelled' to avoid becoming unlawful citizen - and obviously come back once 189 result comes through

Now my question is, is there any way I can request DIBP to acknowledge my situation and grant me BVA? or BVB? or at least do not consider cancelling 457 as I am awaiting decision on 189 and it's already 90 days so hopefully the CO will look into it again ?

I know the 90 day rule is just indicative, and does not guarantee a result within 90 days, and yes I also know that there are some cases where it took people 7 - 8 months till they got the PR granted and also there are cases where PR was granted within the month (I was an international student once, trust me I have heard it all)

But I wanted to open the discussion on the forum here and see if anyone had experienced insights for my situation and possible solutions to this problem?

My ideal scenario be either if DIBP is generous enough to;

a) Consider not cancelling 457 as I am awaiting 189, or
b) Prod 189 team to grant PR, at the back of the 90 day advertised timeframe, so they can cancel 457 - but again I don't think this is a realistic ask as the 189 team may still be waiting on overseas police checks etc 
c) Grant me a BVA or BVB ?

I don't think BVE would be a good move for me as it would wipe out my 9 year collective residence in AU and that would just be extremely depressing for me.

I also caught up with a few MARA registered agents over the weekend discussing this and they have clearly stated that I have not done anything morally wrong by assuming BVA would kick in automatically as it was a mistake and as long as I self report it before any decision is made the DIBP is generally very acceptable of acknowledgement of changes before an action has been taken (obviously given one have facts and evidence to prove this)

Any thoughts on this? Does anyone here feels I may have a chance of getting DIBP not to cancel my 457 as 189 is pending or at least honour my BVA grant that came attached with 189?

Regards


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## Maggie-May24 (Jul 24, 2011)

As you now know, the BVA doesn't take effect unless the 457 expires. I've seen posts suggesting that if you let DIBP know that you have another visa application in process, and ask that they defer cancelling the 457 until the decision is made on your visa application, they may be inclined to do this. This would mean you would be able to keep your 457 until your 189 is processed. This would let you continue to remain in Australia, however you would still be bound by the conditions of the 457 so could only work for an employer who sponsored you.


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## SNAD (Aug 6, 2016)

Maggie-May24 said:


> As you now know, the BVA doesn't take effect unless the 457 expires. I've seen posts suggesting that if you let DIBP know that you have another visa application in process, and ask that they defer cancelling the 457 until the decision is made on your visa application, they may be inclined to do this. This would mean you would be able to keep your 457 until your 189 is processed. This would let you continue to remain in Australia, however you would still be bound by the conditions of the 457 so could only work for an employer who sponsored you.


Hi Maggie,

Thank you for your reply.

Yes I have seen some posts out there which suggest I may be able to request deferring cancellation based on 189 outcome still pending, I just hope it's something DIBP actually considers as a 'valid' reason, instead of just an idea suggested by someone and never action-ed or evidence of anyone being able to defer this (unless I have missed out on a particular example you were referring to?)

It's just my oversight I guess, but hey at least I am writing them to give me 5 more days so I can gather what is the best way to me going forward.

Thanks again


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## SNAD (Aug 6, 2016)

Hi all,

Just a quick update on this: 

DIBP got back to me saying I have untill next week to submit why the visa shouldn't be cancelled 

I will (most likely) request the following point of consideration for them not to cancel my 457 

a) Another substantive visa assessment in process (189 visa) OR
b) Cancel my 457 but at least honour my 189 application as a valid application and don't cancel that too (I have read some posts where cancelling 1 visa may have negative impacts on your other substantive visa applications) ? 


If there's anyone else out there who can shed some light on the possibility of DIBP considering this as a valid request/reason then please do so 

Also, does anyone know what happens when DIBP actually decides to cancel my visa? i.e. do they give a time frame of cancellation date of effect so I can wrap things up here quickly and go 

The last thing I want is DIBP to come back and say something like "we can't consider your 189 being a valid request to defer cancellation therefore your visa is now cancelled" 

Which in turn makes me unlawful citizen effective immediately 

I just want them to give me a heads up about cancellation date so I can pack up and leave AU and avoid being unlawful 

Any comments on this would be much appreciated!


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## CCMS (Oct 10, 2013)

To properly answer these questions you need to research the relevant migration regulations and procedure manuals or pay someone to do it for you. These issues are way too technical and the research too time consuming to be dealt with in a public forum.


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## SNAD (Aug 6, 2016)

CCMS said:


> To properly answer these questions you need to research the relevant migration regulations and procedure manuals or pay someone to do it for you. These issues are way too technical and the research too time consuming to be dealt with in a public forum.


Hi CCMS,

Thank you for your reply 

I completely agree on the research/MARA part. I have already handed this on to a reg agent

I was just using this forum to reach out to people who may have had similar experience(s) and had some light to shed on this matter and what would they have to say about it


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## CCMS (Oct 10, 2013)

SNAD said:


> Hi CCMS,
> 
> Thank you for your reply
> 
> ...


I fully understand where you are coming from. I am just cautioning against relying on other people's personal experiences when it comes to such technical issues. Few people have a good understanding of the exact legal reasoning behind these type of things.


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## ramio (Sep 26, 2016)

Hey Snad,

any updates on your notice of intention to cancel your visa? Did you reply to the letter?


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## SNAD (Aug 6, 2016)

ramio said:


> Hey Snad,
> 
> any updates on your notice of intention to cancel your visa? Did you reply to the letter?


Hey mate,

Sorry for the tardy response

Okay so i'll just take this opportunity to update anyone what happened with my case and where I am at now

My solicitor basically advised me that asking for an extension till 189 comes does not have enough grounds for me to have my visa extended and immi pretty much has the authority to cancel it 'effective immediately' therefore the right thing to do would be to

a) exit the country, and 
b) reply back explaining the situation outlining that I have now left and it was the right thing to do as I wanted to remain law abiding, and 
c) get the visa (457) cancelled, and then 
d) send that communication to the 189 CO requesting an early grant due to the above mentioned chain of events

So that's correct, I ended up leaving AU within 24 hours and thankfully had my brother to look out for my unit here to move things to his house and dispose any items that he didn't need

I ended up going back to my country of origin and then within a week and a half I got an email from the Visa Cancellations Team confirming my visa has been cancelled, which I forwarded to the CO of 189 requesting an early grant and eventually I got my grant within another 5 days from that!

So now I am back in AU with my PR granted


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