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A marriage breakdown between date of application and date of decision or date of grant of provisional business visa and grant of the permanent business visa could be fatal as the PAM shows:
25 EFFECT ON VISA ELIGIBILITY
25.1 Relationship breakdown
Officers assessing Business Skills (Residence) visa applications should keep in mind (and take into account) that a breakdown in the family relationship following provisional visa grant may have consequences for the ability to satisfy second stage (residence) primary criteria.
- if there is no longer a spouse or de facto partner due to relationship breakdown, that (estranged) spouse or de facto partner’s assets cannot continue to be included in asset calculation relating to visa-specific criteria and
- assets (whether held in the name of the business or individually, or in joint names) may become subject to court action arising from a separation or divorce action or settlement. This, in turn, may adversely affect the Business Skills visa applicant’s ability to satisfy visa-specific criteria.
Effects on visas held
If the holder of a Business Skills (Provisional) visa was granted that visa on the basis that they were the spouse or de facto partner of a primary visa holder, and that relationship ceases, the Department must be notified.
When notification is received by the Department, an officer must commence appropriate procedures, including consideration of cancellation of their visa, see PAM3: Act – Visa cancellation – General cancellation powers (s109, s116, s128 & s140).
In considering whether to cancel the Business Skills (Provisional) visa of a spouse or de facto partner, the following factors must be taken into consideration:
- whether the spouse or de facto partner is making their own plans to depart or has departed Australia
- whether legal divorce proceedings and property settlement have been finalised
- if the spouse or de facto partner has established business activity in Australia or employment in Australia on their own and may seek to lodge a visa application in their own right
- if the family unit of the primary visa holder includes dependent children who continue to live with and are supported by the spouse or de facto partner and
- if the principal visa holder advised that notwithstanding the breakdown in the partner relationship, they intend to include thespouse or de facto partner in the permanent visa application as a member of the family unit (see regulation 1.12(5)).
25.2 New relationships – marriage or de facto partner
If a visa holder who satisfied the primary criteria gains a new spouse or de facto partner then a subsequent Business Skills visa application may be made based on the holder’s business skills visa. Under these circumstances a visa application charge is payable but the previous claims against the business related requirements would not need to be reassessed.
A business skills visa cannot be granted to the new spouse or de factor partner of a person who was granted a visa on the basis that he or she satisfied the secondary criteria. All provisional business skills visas require the applicant to be a member of the family unit of a person who holds the visa after having satisfied the primary criteria.
25.3 Progression to residency
If a person was granted a provisional Business Skills Class UR (160, 161, 162, 163, 164 or 165) visa on the basis that they were a member of the family unit then they continue to be a member of the family unit for a Business Skills Class DF (890, 891, 892 or 893) visa. Regardless of any changes in circumstances these members of the family unit may be included in a combined visa application for a Business Skills Class DF visa. If the estranged spouse or de facto partner was granted a business skills residence visa as a secondary visa holder, a visa decision for a new spouse or de facto partner cannot be made until after a decision is made on the cancellation of the visa for the previous spouse.