What If I Separate From My Partner On A 489 visa?

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What If I Separate From My Partner On A 489 visa?

 

Sadly the unexpected happens in life and you may have separated from your partner after obtaining your 489 visa together. What should you do? Can you both still apply for the 887 PR visa in the near future as seperate applicants?

Do I have to inform Immigration?

Firstly, there is no condition on your visa except for 8539 or 8549. As such you are obligated to adhere to these conditions if you want to apply for the 887 visa. There is a clause in the 887 visa laws which state you must substantially comply with the conditions of your visa. If you don’t the 887 visa can be refused. There is no mention in these conditions that you have to inform the department if your relationship breaks down.

Secondly, all 489 visa holders have no legal obligation to inform the department of a change of circumstances such as change of marital status, change of address or change of employment. Yes of course the government wants you to and that is obvious by the wording found 489 grant letters, which nearly always states;

“You are required to tell us about any other changes to your details as soon as possible.
These changes may include your name, passport, contact details, address or family members.
If you do not notify us of your new details, this can have serious consequences for you.”

However is only a request and there is no legal requirement to follow these instructions. Here is the example Jesse to explain why it may not be in your best interest to do so, particularly if you have split from your partner.

This is a real life example that has actually occurred but using use Jesse as the character.

Imaginary JesseJesse and Mary applied for the 489 visa together and Mary was the main applicant and was one who satisfied the requirements so the visa could be granted such as the points system, skill etc. Jesse was the secondary applicant. 12 months after the visa was granted the relationship broke down and they lived separately. Mary decided that she wanted a divorce.

Jesse didn’t know what to do so he called the immigration department. They told him he must inform the department of a change of circumstances. Jesse completed the Form 1022 and emailed to DOHA. A month later Jesse received a Notice Of Intention to Cancel his visa. 5 days later the department cancelled Jesse’s visa under the powers of Section 116 of the Migration Act and placed him on a BVE.

Jesse appealed the cancellation to the AAT but two years later when the hearing was held, the AAT agreed with the DOHA decision and his visa remained cancelled. In the mean time Mary had already lodged her 887 visa and was now a permanent resident.

What was Jesse’s mistake?

Jesse’s only mistake was to inform the department of that the relationship was over. He was not warned over the phone by DOHA that once the department had this information there were grounds for cancellation of his visa. However that is exactly what happened.

Nobody told Jesse not to inform the department. Mary had told Jesse she was not going to tell the DOHA for she didn’t want to upset his dream of PR just because they separated. On Mary’s application for the 887 visa she was obligated to tell the truth that she was no longer in a relationship but she was not obligated to inform the department before that time. Her PR was subsequently granted for she had not breached any of her visa conditions and the DOHA did not ask her why she had not informed them earlier of the separation.

As Migration Agents our office would have told Jesse not to inform the department. This is because we are obligated to act in the interests of our clients at all times, we are not DOHA puppets. If there was a legal obligation to inform the department we would have told Jesse accordingly but in this case there was no necessity to.

Could Jesse have gone on to lodge PR?

The sad part of this story is that Jesse had the opportunity to lodge his own 887 visa. With the 887 visa it does not matter who is the main applicant, there is no longer any point system to meet or skill level, etc. Jesse would have applied as his own primary applicant. To have the 887 PR granted you just need to meet the two basic criteria, lived in a regional area for two years and during those two years you have full time employment of at least 12 months. These criteria have been covered in depth in our previous newsletter regarding the 887 visa requirements. It does not matter that you were not the one who met the requirements for the original 489 visa application.

Had Jesse talked to us before he contacted the DOHA we would have told him to keep the facts regarding his separation to himself. We would have encouraged him not even to discuss it with his friends or work colleagues. We would have told him to keep his head down work for twelve months and when his two years of residency came up, lodge his own 887 visa.

Does these circumstances apply to the new 491 visa?

Please take note that this advice is only for Jesse’s particular circumstances. If Jesse held a 491 visa the advice we would have given Jesse would have to be different. Why? Please wait for our future article on this topic.

If you have separated from your partner whilst holding a 489 visa you should definitely talk to us before you are considering to inform the DOHA. We are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists. Save time and money and book a Skype appointment if you like!

Karl Konrad