Recently, many of you have asked us:If I separate or divorce my spouse, will my visa be affected?Because a relationship breakdown can lead to many different visa outcomes, Newstars lawyer Yuwen Huang addresses this topic.
About the Author
Lawyer Yuwen Huang
Bachelor of Law, East China University of Political Science and Law (China); Juris Doctor, University of New South Wales (Australia). Solicitor of the NSW Supreme Court.
With over 10 years of legal experience across China and Australia, Yuwen has practised exclusively in Australian migration law since 2016. To date, she has handled more than 500 migration matters and helped hundreds of families successfully settle in Australia.
A note before we begin —
This article onlyaddresses whether such an outcome is possible from a migration law perspective, and does not extend to probabilities or the specifics of individual cases.
Whether a visa will ultimately be cancelled depends on the individual circumstances.A similar situation in which A’s visa was cancelled does not mean B’s will necessarily be cancelled, and C being safe does not mean D has nothing to worry about.
If you have concerns about your own situation, we recommend seeking a professional assessment.
Differentvisa subclasses carry different consequences for a relationship breakdown
Permanent residence visas —secondary applicants (family members)
(common visa subclasses: 189/190/186/887)
Under s116(1)(a) of the Migration Act, if the facts on which a visa was granted no longer exist, the Department of Home Affairsmaycancel the visa holder’s visa.
At the same time, under s117(2) of the Migration Act, the above power to cancel a visacan onlybe exercised while the visa holder isoutside Australia.
Scenario:
Ms A and Mr B are a couple. They obtained Australian permanent residency through the Subclass 189 Skilled Independent visa. Ms A is the primary applicant — she was granted the visa because she met the 189 points requirement and received an invitation. Mr B is the secondary applicant — he was granted the visa because he is a member of Ms A’s family unit.
After arriving in Australia, the relationship breaks down. At that point, Mr B is no longer a member of Ms A’s family unit. Therefore,when Mr B leaves Australia, s116(1)(a) may be triggered, putting Mr B’s visa at risk ofpossible cancellation.
Permanent partnervisas
(visa subclass 100/801)
Although this situation is similar to the above, there is a special policy that applies to holders of permanent partner visas:the Department has a specific policythat even if a permanent partner visa holder’s relationship with their sponsor breaks down, the visa officergenerally cannotcancel the visa.
Scenario:
Ms A is an Australian citizen who sponsored her husband Mr B for Australian PR through a partner visa. Mr B holds a Subclass 801 visa. The relationship subsequently breaks down, and Mr B is no longer a member of Ms A’s family unit.
However, due to the policy described above,the Department will not (or, put another way, cannot),solely because of the breakdown of the relationship between A and B, cancelMr B’s visa.
Temporary visas —secondary applicants (family members)
(common visa subclasses500/485/482)
Because s117(2) does not apply to protect them, most secondary applicants on temporary visas face the risk ofvisa cancellationif their relationship with the primary applicant breaks down.
Scenario:
Ms A is the primary applicant on a student visa and is currently studying in Australia. Her husband Mr B is a secondary applicant on the student visa (commonly known as a student guardian visa).
When the relationship breaks down, the Departmentmaycancel Mr B’s student visa under s116(1)(a).
During the visaapplicationprocess — what happens if the relationship breaks down?
If the secondary applicant contributes points to the primary applicant, pay particular attention
Generally speaking, for applicants of any visa subclass, if the relationship between the secondary and primary applicants breaks down before the visa is granted,the secondary applicant’s visa will be refused.Meanwhile,the primary applicant’s visa application will generally proceed to grant, provided the remaining eligibility criteria are met.
One important thing to note here is thatif the primary applicant is applying for a points-tested visa (e.g. Subclass 189/190/491/188), and the secondary applicant’s personal circumstances contribute points to the primary applicant’s score, then following the breakdown,the withdrawal of the secondary applicant may result in the primary applicant’s points falling below the required threshold, potentially causing the primary applicant to also be refused.
Somespecialcircumstances for temporary partner visas
Generally speaking,if a holder of a temporary partner visa (Subclass 309/820)and their sponsor’s relationship breaks down,their temporary partner visa will be cancelled.
However, for those who already hold a temporary partner visa and have entered Australia (Subclass 309/820), or who are currently applying for a Subclass 820 visa, there may still be a pathway to permanent residency even if the relationship with the sponsor breaks down,if any of the following circumstances apply.
1. The visa holder has experiencedfamily violence
2. There isa child under 18 years of age from the relationship between the visa holder and the sponsor
3. The sponsor has passed away and the visa holder has strong ties to Australia
We hope every couple can journey through life together, but separation is sometimes unavoidable.When separation becomes unavoidable, seeking our assistance promptly may help you find ways to reduce the risk of your visa being cancelled.We are here to support you every step of your migration journey.
NewStars’ core team of professional lawyers and registered migration agents
This week from Feifan English
Click the image to read the full article
Previous Recommendations
Make the most of your Subclass 485 Replacement pathway to migrate! A cost-effective option with strong employment prospects
Treasurer says raising the skilled migration quota to 200,000 is a reasonable choice!?
Occupations in long-term shortage to rely on permanent migration to address skills gaps!
The occupations NSW Subclass 190 ‘most liked’ to invite last financial year — engineering and IT make the list!
The occupations NSW Subclass 190 ‘most liked’ to invite last financial year — engineering and IT make the list!
Migration information sharing and Q&A group
Step 1: press and hold to add our customer service contact
Step 2: after adding, please
Attention!Verify you are speaking with agenuineNewstars consultant!
Tasmania state nomination new policy expected to bring positive changes, calls grow for increased PR quota!Click ‘Original Link’ — Migration Weekly — Video Edition
