Under section 116(a) of the Migration Act, a visa may be cancelled if the circumstances on which it was granted no longer exist. For secondary applicants of a Subclass 491 Skilled Work Regional (Provisional) visa, this can become an issue if the visa was granted based on a spousal relationship with the primary applicant. In the event of divorce, the Department of Home Affairs may consider that the “basis for granting the visa” no longer exists, creating a risk of visa cancellation.
Does divorce automatically cancel the 491 visa for secondary applicants?
Not necessarily. The Department does not automatically cancel the visa, but risks remain. In practice, the Department usually becomes aware of a divorce only if:
- You apply for the permanent Subclass 191 visa, and your marital status is checked
- Your former spouse (or another third party) notifies the Department, or
- A compliance review reveals the change in circumstances.
If the Department becomes aware that your visa was granted on the basis of your previous marriage, and you are now divorced, they may consider cancellation under section 116(a).
How can you reduce the risk of cancellation?
- Continue meeting the 491 visa conditions, such as living and working in a designated regional area. If you remain compliant, the Department may not prioritise cancellation.
- Avoid triggering an unnecessary review. Unless notified, the Department may not investigate immediately. However, reporting a marital status change or applying for a 191 visa may draw attention to it.
- Consider alternative visa pathways if available, such as employer-sponsored visas (482, 186, 494), skilled migration options (189, 190), or a partner visa if in a new relationship.
Can a 491 secondary applicant apply for the 191 visa independently?
Yes. A secondary applicant can apply for the Subclass 191 Permanent Residence (Skilled Regional) visa independently, provided they meet all eligibility criteria (such as residence, work, and income requirements).
If you are in this situation, it is important to obtain tailored legal advice to protect your visa status and plan your pathway to permanent residency. At Futai Advisory, we can provide a clear strategy to minimise risks in Australia.
