Can my relationship status change while awaiting the decision on my General Skilled Migration (GSM) visa?

General Skilled Migration visas have been a hot topic over the last decade, since the overhaul from the former system (subclasses 175/176/475) into the new SkillSelect, invitation-based system, and the creation of subclasses 189/190/489 back in 2012.

For many years since, GSM visas were a mainstay for migrants, especially offshore migrants who had very little access to the Australian Labour Market, thus making it a favourable option as it did not require being employed or sponsored by an Australian employer (or prospective employer).

Over the years, the processing times for GSM visas fluctuated greatly. At some point of time, it could take literally years for the applications to process, in some other times, it would take a few months.

With prolonged processing times, changes in circumstances usually happen. People get married or enter de facto relationships, or they get separated or divorced. Children are born sometimes.

Up till those who had applied for their GSM visas based on invitations received before 16 November 2019, such changes were mostly inconsequential. Getting into a married/de facto relationship while awaiting a decision was not an issue, and the visa applicant could simply notify the department of the relationship, provide evidence, pay the visa application charge for the additional person, and include them in the application.

Likewise, a breakup while awaiting a visa decision up till that date was only problematic if the primary applicant had relied on the skilled partner points, which would have caused their point score to drop and potentially have the visa refused, but other than that particular case, separation was inconsequential either.

Enter 16 November 2019

On that day, several changes were made to the GSM visas, including introduction of the new regional provisional visa (Subclass 491) and retirement of its predecessor (Subclass 489), but most importantly, a very critical change to the points system took place, whereas:

• Single applicants (including those divorced/separated/widowed) received 10 points for being single.

• Those in a de facto or married relationship with an Australian Citizen or Permanent Resident received 10 points as well for the same category.

• Those with a fully skilled partner/spouse, who satisfies all of the following at the time of receiving the invitation to apply for the visa also received 10 points.

         - Satisfies Competent English requirements.

        - Has held a skills assessment for a skilled occupation eligible to apply for the same visa subclass.

         - Is under 45 years of age.

• Meanwhile, those with a partner/spouse who does not meet ALL of the above, but only meets the Competent English at time of receiving the invitation, received 5 points.

• Those with a partner/spouse that meets neither, received ZERO points.

So where is the issue?

The issue is that your point score is assessed at the time of receiving the invitation. Almost ALL requirements “freeze” as of that point in time. For instance, if you receive 30 points because you are 32 years old the day you were invited, and you happened to receive that invitation a day before your 33rd birthday, your points remain the same and do not drop to 25 points.

However, partner points are assessed at the time of decision being made on the visa, however, with retrospective evaluation of your partner’s situation at the time of invitation.

Without making it overly complex, that means if you received 10 points for being single at the time of invitation, and before the visa is decided, you marry a person who is neither an Australian Citizen, nor a PR, nor is a fully skilled person as explained above, you will automatically lose 10 points.

Even if your points remain above 65, even if you would have been hypothetically invited anyway, you would not meet the time of decision requirements in the regulations, which states:

“The applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for the visa.”

Some examples of changes to the relationship status that are not adverse to the visa application include:

• Single person becomes a partner/spouse of an Australian PR/Citizen (10 points before, 10 points after, no change).

• Single person becomes a partner/spouse of a person who meets the fully skilled partner retrospectively at the time of invitation (i.e.: they held a skills assessment BEFORE the invitation was received, for an occupation on the list eligible for the same visa subclass and were under 45 years of age on the day the invitation was received (10 points before, 10 points after, no change).

• Married/Partnered person whose partner was not skilled gets divorced/separated (0 points before, 10 points after, score increased by 10 points).

• Married/Partnered person whose partner had afforded them the Competent English points gets divorced/separated (5 points before, 10 points after, score increased by 5 points).

In other words, if the change of circumstances keeps the point score the same (or increases it), your visa application is safe. Otherwise, your visa is at risk of refusal.

As you can see, the combinations are quite a lot, and making an assessment of your situation by a professional is necessary to avoid impacting your long-awaited visa application outcome.

How can we help you?

At Longton Legal, our team of highly experienced immigration lawyers and migration agents can assess your situation and provide you with frank and candid professional advice about your situation, potentially avoiding a situation where your visa gets refused.

Contact us today for a professional consultation.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*