Ask an Immigration Lawyer: Do I need to update the Department about changes to my circumstances?
One question that we commonly receive is whether you need to notify the Department if your situation changes, including before and after a visa application has been finalised. The answer is generally yes, and sometimes this even includes after your visa has already been granted.
In particular, section 104 of the Migration Act 1958 (Cth) imposes a legal obligation on both visa applicants and visa holders to notify the Department of Home Affairs of certain changes to their circumstances, and failure to notify the Department of such relevant changes can result in the refusal of a visa application, or even the cancellation of a visa that has already been granted.
Section 104 - Migration Act 1958 (Cth)
Pursuant to section 104 of the Migration Act 1958 (Cth), if a visa applicant or visa holder’s circumstances change, so that an answer to the questions in their visa application is now incorrect, he/she must, as soon as practicable, inform the Department of Home Affairs of both the new circumstances and of the correct answer.
Additionally, section 104 of the Migration Act 1958 (Cth) distinguishes between offshore visa applications (i.e. applications lodged outside of Australia) and onshore visa applications (applications lodged in Australia), such that:
If the visa applicant is in Australia at the time the visa is granted, the legal obligation to notify about changes in circumstances applies to changes before the visa is granted; and
If the visa applicant is outside Australia at the time the visa is granted, the legal obligation to notify about changes in circumstances applies to changes in circumstances after the application and before the applicant is immigration cleared (i.e. arrives in Australia).
This means that if you were in Australia when you were granted the visa, as is usually the case with most (but not all) onshore visa applications, you must notify the Department about all relevant changes to your circumstances up until a decision was made on your visa applications (i.e. including during the processing of your visa application).
On the other hand, if you were outside of Australia when your visa application was granted, as is usually the case with most (but not all) offshore visa applications, you must notify the Department about all relevant changes to your circumstances (i.e. including during the processing of your visa application as well as after your visa application was granted, up until you actually arrived in Australia on your visa).
Common changes to your circumstances which you may need to update the Department about
Common examples of changes to your circumstances which you may need to notify the Department of Home Affairs about include:
A change in your relationship status (marriage, separation, divorce, engagement or a new de facto relationship)
Pregnancy or the birth of a child
A change of employer or occupation
Withdrawal of employer sponsorship
New or pending criminal charges and/or convictions
A change in health circumstances
A change to your residential address or contact details
This is because depending on the visa you have applied for, you must generally meet certain regulatory criteria for the grant of your visa both at the time of application and at the time of decision. Any changes that have occurred to your circumstances when the Department is ready to finalise your visa application, including changes that occur months or years after you initially applied for the visa, can therefore potentially result in the refusal of your visa application.
Additionally, a failure to notify the Department about changes to your circumstances and/or incorrect answers in your visa application may result in the refusal of your visa application on grounds of bogus or false information you are deemed to have provided, which may consequently subject you to a 3-year exclusion period which “bans” you from being granted another visa for at least 3 years. This 3-year exclusion period can only be waived where there are compelling circumstances that affect the interests of Australia and/or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify granting the visa.
Thinking of changing your circumstances? Speak to an Immigration Lawyer first.
Many visa applicants and visa holders are not aware that certain changes to their circumstances can affect their eligibility for the grant or ongoing validity of the visa. This includes significant life changes such as:
Getting married
Ending a relationship
Changing employers
Resigning from a sponsored position
Withdrawing from study
Starting a different course
Adding or removing family members from your application
For instance, a visa applicant who has applied for an employer-sponsored visa, such as a Skills in Demand (Subclass 482) visa, an Employer Nomination Scheme (Subclass 186) visa or a Skilled Employer Sponsored Regional (Subclass 494) visa must generally genuinely intend to perform the nominated occupation within the sponsoring employer’s business, both at the time of application and at the time of decision. This means that any changes to the visa applicant’s employment circumstances, including where they have ceased employment with the sponsoring employer during the processing of the visa application, may affect their satisfaction of the regulatory criteria for the grant of the visa.
Additionally, a visa applicant who has applied for a skilled visa, such as a Skilled Independent (Subclass 189) visa, a Skilled Nominated (Subclass 190) visa or a Skilled Work Regional (Provisional) (Subclass 491) visa on the basis of being eligible to claim 10 points for being a single applicant, but marries a non-citizen of Australia during the processing of their visa application who does not have an appropriate skills assessment for an occupation on the same occupation list, may no longer have the same points at the time of decision which they would otherwise require the grant of the visa.
Furthermore, a Prospective Marriage (Subclass 300) visa holder who was required to not enter into a de facto or spousal relationship prior to entering Australia may be liable for the potential cancellation of their visa where their relationship status changed prior to arriving in Australia on the Subclass 300 visa.
On this basis, if you have considering any significant life changes after applying for or being granted a visa, you may wish to seek legal advice about next steps, so as to avoid any adverse immigration consequences. Such significant life changes include, but are not limited to:
Partner visa applicants who separate before decision
Employer-sponsored applicants who stop working for their sponsor or whose occupation/employment changes
Student visa applicants who cease enrolment
Skilled visa applicants whose relationship status changes
Our immigration lawyers at Inclusive Migration have extensive experience in advising prospective migrants to Australia about their employer-sponsored, skilled migration and family migration options in Australia. Should you wish to discuss your migration options in Australia and/or a specific immigration matter, please do not hesitate to email info@inclusivemigration.com.au, submit an enquiry using the contact form on our website or send us a message on WhatsApp.
