Recently, many of our clients have been asking us,whether they can resign after their Subclass 186 visa is granted.This topic has sparked heated discussion on social media. In response, Newstars Education & Migration’s lawyer Huang Yuwen has provided a detailed explanation.
Author
Lawyer Huang Yuwen
Bachelor of Laws, East China University of Political Science and Law (China); Juris Doctor, University of New South Wales (Australia). Solicitor of the NSW Supreme Court.
Over 10 years of legal experience in China and Australia. Specialising exclusively in Australian migration law since 2016. Has handled more than 500 migration cases, helping hundreds of families successfully settle in Australia.
Australian permanent residency visacancellation— the basic process and legal principles
Step 1: The Department of Home Affairs must identify a ground for cancellation (Cancellation Ground). Common grounds include:
– The visa holder has breachedvisa condition s116(1)(b)
– The visa holder providedincorrect information or false documents s109
– The visa holder’scircumstances that led to the grant of the visa no longer exist s116(1)(a)–This ground only applies when a permanent visaholder departs Australia— this occurs.
– The visa holder has developedhealth or character concerns s116(1)(e)
Step 2: Once a cancellation ground exists, the Department may decide whether to cancel the visa.
The decision to cancel a visa isdiscretionary (Discretional) under migration law. The Department willtake into account the visa holder’s overall circumstances in Australia,including the seriousness of the cancellation ground identified in Step 1,whether it is serious,as well as the visa holder’sfamily and employment situation in Australia,to determine whether to ultimately proceed with cancellation.This means that even if a cancellation ground exists under Step 1, the visa will not necessarily be cancelled.
Step 3: The Department issues a Notice of Intention to Consider Cancellation (NOICC).
Once the Department hasdecided to proceed with cancellation,it will sendthe NOICC to the visa holder if they are in Australiato send the NOICC.. The visa holderhas 7 working days to respond.
It is important to note thatvisa holders outside Australiamay not receive a NOICC, and their visa may be cancelled directly.
Step 4: Cancellation of the visa.
If the visa holder fails to respond to the NOICC in time, or if the response does not satisfy the Department, the visa will be formally cancelled and the holder will receive an official cancellation notice from the Department.
Subclass 186 visa holders —what are the consequences of resigning voluntarily?
Whenapplying fora Subclass 186 visa, the applicant mustsatisfy the requirements of Reg 186.212.In conjunction with the requirements for the nominated position under Reg 5.19(9)(e),the applicant and employer commit that the visa holder will work full-time in that position for at least 2 years.
If the visa holder resigns within those two years, the following consequences may arise:
–During an investigation with the employer, the Department discovers that the employee has left— the Department maysuspect that the Subclass 186 visa application originally lodged contained incorrect or false information.Under s109, the Department would then have a Visa Cancellation Ground.
– If the visa holderdeparts Australia after resigning,,the circumstances that existed at the time the visa was granted no longer exist.Under s116(1)(a), the Department would also have a Visa Cancellation Ground.
In this situation,the Department would already have a Visa Cancellation Ground,and would proceed, as outlined above,to initiate the visa cancellation process.
Therefore, in theory, a Subclass 186 visa holder who resigns voluntarily within the first two years may face the risk of visa cancellation.
In practice,some visa holders’ visas have ultimately not been cancelled,for a variety of reasons — the Department may not have discovered the resignation in time, or after discovering it, may have weighed all circumstances and decided not to cancel the visa.
It is precisely because of this
that misconceptions about Subclass 186 visa cancellation are common.
Misconception 1
No visa conditions restrict it,
so you can resign at any time?
Myth
Because there is no specific visa condition (Visa Condition) on the Subclass 186 visa requiring the applicant to work for the employer for 2 years, the applicant can resign at any time.
Fact
This is a typical misconception arising from a lack of understanding of migration law.As explained above,there are many grounds on which the Department can cancel a visa — breaching a visa condition is just one of them,and if other circumstances arise, the visa may still be cancelled.Most Subclass 186 visa cancellations in practice are the result of the provision of incorrect or false information.
Misconception 2
As long as you reach an understanding with your employer not to report to the Department,
you won’t be found out?
Myth
As long as youhandle the resignation well with your employer and the employer does not proactively report it to the Department, the Department will never find out.
Fact
The Department periodically and proactively contacts employers to investigate the employment status of Subclass 186 visa holders.If the Department does make contact and requests that the employer provide the employee’s most recent payment summary, the employer simply cannot produce one. And why would an employer lie to the Department to protect a former employee’s visa? This kind of wishful thinking cannot fully eliminate the risks that come with resigning.
Misconception 3
Even if it is cancelled, winning an AAT appeal is possible,
so it doesn’t really matter?
Myth
A review of recent cases where Subclass 186 visas were cancelled and appealed to the Administrative Appeals Tribunal (AAT) shows that the vast majority of cancellation decisions were overturned by the AAT.So resigning won’t cause any real issues.
Fact
Based on the data available, cases where resigning ultimately led to a permanent Subclass 186 visa cancellation are indeed in the minority — but a significant number of cases have triggered the Department’s cancellation process, and many have had to go all the way to the AAT before the visa was ultimately retained. We have also represented a number of clients whose Subclass 186 visas were cancelled, and ultimately succeeded in having their visas reinstated at the AAT stage.However, throughout this process, visa holders face enormous financial costs and immense psychological stress — all of which could have potentially been avoided.
Holding a Subclass 186 visa —
if you experience unfair treatment at work,
how should you handle it?
1
Australia has a comprehensivebody of labour laws to protect employees’ fundamental rights at work. Whenan employee feels their interests are being infringed upon, they can contact the Fair Work Ombudsman or seek advice from an employment lawyer.
Employment-related issues should be resolved through labour law — not by risking visa cancellation in a challenge to migration law requirements.
2
Every person’s employment dispute is different.I strongly advise visa holders who encounter employment-related issues to proactively seek professional legal advice.Rather than acting on impulse and making the decision to resign within the first two years of holding a Subclass 186 visa, which puts you in a very unfavourable position.
Some one-sided answers online may not come from qualified professionals, and the content may not genuinely reflect the interests of the person asking. The respondent bears no responsibility for their reply — so these are not effective legal advice. For major life decisions relating to your visa, employment, and related matters, we strongly encourage everyone to seek professional legal advice.
Closing thoughts —
There is an old saying in medicine: the best physician prevents illness before it occurs.
As a lawyer, my role is in many ways similar to a doctor’s — I don’t just step in to resolve problems after they have arisen; I can also identify risks before they emerge and help clients avoid them at a far lower cost.
If you are dealing with complex issues relating to employer-sponsored visas or any other type of visa, or needassistance with employment matters, feel free to reach out for a chat — my team at Newstars, including our lawyers and MARA-registered migration agents, are very happy to help.
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