No visa is an island – dependants can get caught out

Whenever a dependant applies for a new visa, expect that the whole of the applicant’s visa history will come under the microscope. Visa cancellation can be triggered if a primary visa holder decides enough is enough and ditch the original dependant partner who holds a secondary visa.

Particular care is needed when a former dependant applies for a new visa with a partner who is not the original visa partner. The word ‘relationship’ can cause problems. There is, of course a big difference between a romantic relationship and a spousal or de facto relationship. In the transition from one visa to another care needs to be taken to identify that line and ensure there is no overlap between the two partner relationships

Loose use of that word ‘relationship’ can give the impression that the grant of the first dependant visa was granted on the basis of incorrect information, or that the person helped the secondary visa during a period when the relationship did not exist.

Note that if a person holds a visa as a dependant and the relationship breaks down during the period of the visa, then the dependant’s visa may be cancelled if Immigration becomes aware the relationship has broken down. This all happens under s116(1)(a) of the Migration Act which reads:

Section 116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists;

No matter what the visa is (it could be a permanent resident visa) the visa could be cancelled. Nowadays, outside the criminal character area, there is no mandatory or automatic visa cancellation. Any cancellation under s116 is discretionary and the discretionary factors include those set out in Reg 2.43. Often Immigration finds out when the primary visa holder informs Immigration the relationship has broken down or there is a ‘dob-in’ to that effect.

All visa cancellations on-shore (excluding criminal character cancellations) can only occur after a notice of intention to cancel is issued. During the whole visa cancellation process, until the actual cancellation decision is made, the secondary visa holder still holds a valid visa. While still holding that valid visa that secondary visa holder can apply for some other visa in his or her own right, assuming one is eligible for the other visa.

However, many secondary visa applicants do very little to position themselves to be eligible for another visa. Most assume that all will be fine, that there will be no relationship difficulties and that the person’s visa status in Australia is assured for ever. This is just not the case. For migration advisers, all visa secondary applicants should be warned of the possibility of relationship breakdown and the need to skill up in an occupational sense and also skill up in terms of English.

Looking at the dependant’s situation, it is often the dependants themselves who alert Immigration to the relationship breakdown when the dependant applies for another visa. Often in that new visa application, the dependant will have a dependant of her own. Sometimes the visa material for the new visa application will set out a relationship which would lead to demonstrating that the original relationship broke down while holding the dependant visa.

Here are some examples of successful and unsuccessful cases before the AAT on visa cancellation arising out of or caused by difficulties concerning a claim of partner status.

In He (Migration) [2022] AATA 2584 (1 July 2022), the visa cancellation of  subclass 190 Skilled - Nominated visa was affirmed. Here the former dependant visa holder had a new wife. In this case there were allegations of fraud in Immigration detecting that various documents proving the original partner relationship for the grant of the subclass 190 visa were forged or had the addresses altered. These documents were bank accounts, phone and utility bills etc. This case had the hallmarks of a genuine fraud at the subclass 190 stage. However it was also a tragic case as the former dependant visa holder had a child to the new wife.

In Liao (Migration) [2022] AATA 2238 (1 July 2022), a rather bizarre case, the Subclass 189 - Skilled - Independent visa primary applicant wanted to rely on extra points that could be generated from a de facto partner having English qualifications. In this case it appears the existence of the de facto relationship was a genuine fraud. However by the time of decision, the visa applicant had acquired sufficient points form his own English skills and he did not need the ‘de facto’ partner’s points! Rather luckily the subclass 189 visa was not cancelled.

Wu (Migration) [2022] AATA 2246 (1 July 2022) was another case of the applicant using a ‘partner’ to bolster points. There was clear evidence of false documents as proof of the relationship such as altered bank account statements etc. Here the AAT thought that some relationship existed but that it was not necessarily a ‘de facto’ relationship. Here the AAT decided to set aside the visa cancellation because of hardship, the visa holder had qualifications which would not be recognised in China and by the time of AAT hearing she had a heavy mortgage in Australia.

Wang (Migration) [2022] AATA 2579 (27 July 2022) concerned a case where documents had been altered to prove a partner relationship for a subclass 189 -  Skilled - Independent visa for a secondary visa holder. These were forged. The visa holder had her visa cancelled but by then had formed a new relationship and had a child to the new partner but the child was born after visa cancellation (hence at the time of hearing before the AAT was not an Australian citizen). Here the AAT again found that there was some evidence  of a relationship between the first partner and herself plus hardship factors and decided to set aside the visa cancellation.

The take home lesson may be that upon relationship breakdown, or if a relationship breakdown is on the cards and the secondary visa holder holds a permanent resident visa, then he or she should apply for a Resident Return Visa (subclass 155), that latter visa is an independent visa held independent of the primary visa holder of the previous visa.

In all cases where a second visa is applied for and there is a new partner, extreme care must be taken to ensure that the evidence of the de facto or spousal relationships do not overlap from one visa to the next, otherwise visa cancellation or visa refusal may be on the horizon. In these circumstances, no visa is an island!

We discuss complex compliance issues in most of the workshop webinars I run. The next one is on Saturday 22 October 2022. Each of the decisions referred to in this blog are on the public domain and can be found at Austlii.edu.au at the Administrative Appeals Tribunal section. If you would like actual copies please email us.