Friday the 9th of January 2015
Volume 356

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Mistakes which can cost you your visa - Pt1. Failure to Notify a Change of Circumstances                                       
A shocked and frightened woman covering her mouth in surprise and disbelief. Isolated on white.

Failure of applicants to notify the Immigration Department of a change of circumstances whilst their visa is under processing can quite often be a deliberate act of trying to conceal something but often it can be just an honest mistake.


The Immigration Department is particularly fussy about the accuracy of the information you give to them. These days they have the power to ban you from Australia for a number of years if you give them false or misleading information or fraudulent documentation but what many people do not know are the cancellation provisions available even after your TR or PR visa is granted.


Today we will visit just one of those areas, failure to tell the Department of a change of circumstances.


In a nutshell the Department can cancel your visa if you fail to tell them about a change of circumstances that may apply to any visa applicant after the application has been lodged and before the visa has been granted. In some cases, this can also be up to the time of your first entry to Australia on that visa if it was granted to you while you were offshore.


In reality the DIBP does not want to know an applicant's every change of circumstances before a decision is made. If the Department told applicants that they must notify them when a change of circumstances occurs they would be inundated with information for trivial matters such as the purchase of a new car or perhaps that their pet dog Fido past away last week. This of course would create an administrative absurdity.


The change of circumstances the DIBP want to be informed about is exactly the kind outlined in Section 104 of the Migration Act 1958;


"If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them."


The DIBP approved Form 1022 is the format the Department directs applicants to when they are advised a change of circumstances has taken place. They advise applicants to complete the form and send it to the Department. The form itself is a guide as to what information the DIBP want to be informed about that would constitute a change of circumstances. On the advice sheet attached to the form it states;

Section 104 of the Migration Act 1958 (the Act) requires you to inform the Department of Immigration and Border Protection (the Department) of any changes in your circumstances that affect any answer to a question in your application form.


We know however the "affect" that they are referring to, it is than an answer on the application form submitted becomes "incorrect". The DIBP would normally not attempt to cancel a visa because the applicant failed to notify they changed address because at the time the form was submitted the information was correct and even with an address change during processing, the information is still correct, just outdated.


The language of Section 104 is clear. It only relates to an answer on an application form becoming incorrect after the forms completion and submission to the department. Section 104 is not about any change of circumstance that may seem important to an applicant or what the department think they would to know, it is a new circumstance which makes an answer on the original application from become incorrect.


The Federal Court Magistrate J Mortimer outlines clearly in a decision in 2014 of what constitutes a change of circumstance;


"49. Rather, s 104 is concerned to ensure that information in an application is "correct" and correctly reflects the circumstances of the visa applicant. So, for example, if the applicants for a spouse visa subsequently separate before a decision has been made on the visa, that is the kind of "change of circumstances" s 104 may oblige the visa applicants to inform the Minister about. Relevantly, the change of circumstances must cause an answer in the visa application to be incorrect."


(MORTIMER J in Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 (16 May 2014))  


It is not as if the DIBP scroll though previous applications to see if there is some way they can cancel somebody's visa. Usually the circumstances arise in subsequent applications, such as sponsoring your spouse or parents from overseas.


Some applicants have the mind set that they do not want to tell the Department that they got married during the processing of their visa. They fear it will delay the processing of their application. The problem will then arise later when they put in a sponsored partner application for their wife.


Many get a shock when the DIBP threatens to cancel their permanent residency because they did not inform them of a change of circumstance that breached Section 104. The Department will say that they did not get informed regarding the marriage and thus the question originally answered (single) and supplied to them on the application form became "incorrect" (married) before the visa was granted.


If anyone gets a letter from the DIBP such as this threatening to cancel your visa make sure you consult a registered migration agent because your going to need all the assistance you can get.


If your application is under processing now, make sure you use Form 1022 if any new circumstances make an answer on your application incorrect.


It would also be advisable not to contact the Department to tell them about that change of circumstances you failed to mention some years after your visa has been obtained. That would be waving a red flag to a bull. If you want to resolve you conscience, best go to see a priest.


Section 104 also says that you must notify the DIBP "as soon as practicable". This does not mean after the visa has been granted or after you have arrived in Australia on that visa if granted whilst you were offshore.




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Jee Eun Han

   Executive Manager

           Jee Eun Han

Australian Immigration Law Services






Karl Konrad

    Managing Director

          Karl Konrad

Australian Immigration Law Services





I have seen many instances over the years where failing to notify the department of a change of circumstances has led to threats of visa cancellation and actual cancellation.


I can assure you, having your residency visa cancelled would have to rate of one of the most unpleasant experiences in your life, even worse than going to jail.


At least if you go to jail you can start your life over again back in your cozy house or get into your favourite car. Loosing your PR status and being kicked out of the country after you have bought that house and car can be much, much worse.  


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