Grant of a permanent visa is not set in stone
Grant of a visa, including a permanent resident visa, does not necessarily cement the person’s migration status in Australia. Visa cancellation looms as a real possibility. Only Australian citizenship cements one’s future in Australia (assuming no misleading information is supplied in the citizenship application).
Particularly vulnerable to visa cancellation are the secondary visa holders (mainly the spouse/partner persons) of offshore granted visas. What is not appreciated is that s104 of the Migration Act extends the ‘change of circumstances’ notification requirements up until the first arrival in Australia post visa grant. Section 104 states:
Section 104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
Of particular relevance is s104(3). If a person delays first arrival in Australia, then that just extends the notification requirements until that first arrival.
I give the strongest possible advice, once an offshore visa is granted, all the visa holders should come to Australia as soon as possible, even if it is for a day. Once the person has made the first arrival, change of circumstances comes less relevant and s104(3) has less work to do.
In particular, any relationship breakdown which may occur after arrival in Australia simply becomes less relevant.
If a relationship breakdown occurs before that first arrival in Australia then technically that person is no longer a dependant on the date of first arrival. That fact ought to be reported to Immigration under s104. It would bring s107 of the Migration Act into play. Section 107 states as relevant:
Section 107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section …, 104, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance;
Section 109 then gives Immigration power to cancel the visa if there is non-compliance with s104. As can be seen the destructive power of s104 comes to an end when the visa holder first comes to Australia.
A relatively regular scenario is emerging of the secondary visa partner ending his or her relationship with the primary visa holder and then later, the secondary visa holder sponsors a new partner. Sometimes this occurs quite quickly.
Extreme care needs to be taken in such ‘second’ visa applications. If the parties to the second relationship indicate that the second relationship had started prior to the sponsor’s arrival in Australia then it could bring s104 into play and the visa cancellation power under s109. The sponsor in this situation, of course, is the former dependent of the original permanent visa grant!
Best therefore to reduce the time when such possibilities can occur by arriving in Australia immediately a visa is granted.
Even so whenever a spouse/partner dependent of a permanent visa holder, sponsors a ‘new’ partner, it will always lead to the scrutiny of the first spousal/partner relationship
Of course s104 can apply for many situations, health is an obvious example. A serious motor vehicle or industrial accident to any of the visa holders before first arrival must be reported to Immigration if such an accident has an impact on whether the parties comply with PIC 4005 as at the date of first arrival in Australia.
The take home message from this blog is that when secondary visa holders who are partners of the original primary visa holder want to sponsor a new ‘partner’ then it must be clear that the word’ relationship’ needs to be carefully defined. If the new spousal or partner ‘relationship’ overlaps the first arrival into Australia then there is a risk s104 will come into play with resultant visa cancellation under 109.
In my view, never use the term ‘relationship’ unless it refers to the time when the contact between the parties has matured into a genuine spousal or partner relationship (ie as defined in Reg 1.15A). Before that, words like friendship, friends, acquaintance, contact, dating or the more old fashioned courtship or courting are to be used. Spousal/partner relationships with second parties cannot overlap the date of visa grant or the date of first arrival in Australia (if the visa is granted offshore).
Of course disharmony in the first spousal/partner relationship does not necessarily mean the partner relationship has come to an end, relationships can be revived. Sometimes psychologists talk about the ‘J curve’ in relationships, things can get worse before they get better. Even extra marital affairs in the first partner relationship are not fatal but they can be, if not ended prior to visa grant or first arrival in Australia.
We deal with these matters in great detail in my workshop/webinar this Friday 9 December 2022, the last 10 CPD point day for the year.
May I also take this opportunity to wish you all the compliments of the season and happy holidays!!