491 Visa – Do I have to Continue Living in the Region that Nominated Me?
This article relates to the State/Territory Nominated Stream – but Relative Sponsored stream can take note.
When it comes to the 491 visa, this is one of the most frequently asked questions – but like many things in life, the answer’s not that simple. Here’s my summary:
Scenario 1: 491 visa is applied and is pending decision, BEFORE the visa is granted
This tells me that you have received the Nomination by a designated regional authority.
For the 491 visa to be granted, this Nomination must remain valid, and hence you must not do anything that would breach any of the conditions that was laid down by the nominating authorities.
Here’s the law:
491.217: If the applicant is nominated by a State or Territory government agency, the nomination has not been withdrawn.
If they do withdraw your Nomination, then you will not satisfy the above legal requirement, and as there is no ‘exemption’ or ‘waiver’ for the above provision, your 491 visa will be refused.
Scenario 2: 491 visa was granted, but you want to move somewhere else
After obtaining the 491 visa - you are may be able to move to other designated regional areas in line with your visa conditions.
More accurately, to the areas that were claimed/defined as designated regional areas at the time when your 491 visa was granted.
Once you get your 491 visa, this nomination no longer is important - because you've got the visa.
However, as you would have made representations/declarations/agreements to indicate that you will commit to the region nominated - you should satisfy the state government that you have made genuine efforts to satisfy the agreement - by actually moving and living in the region for a reasonable period of time.
For example, if after moving to region nominated, you were not able to secure any employment etc - but you were able to secure employment in another designated regional area, it should be considered a reasonable excuse for you to move to this another designated area.
This is important NOT because of any visa conditions that you'll be subject to the 491 visa - but because we don’t want you to be identified by the Department as someone who has been fraudulent/misleading to the Australian government. s109 of the Migration Act can be used to cancel people's visa if they've been found to be misleading.
Does moving to different areas have affect on the future PR (subclass 191) application?
The regulations for the subclass 191 visa was just released on 5 March 2022. After a careful review of the requirements it is my observation that as long as you have substantially complied with the 491 visa conditions, you will be eligible for the visa.
Where the relevant conditions are extracted as below:
8578
The holder must notify Immigration of a change to any of the following within 14 days after the change occurs:
(a) the holder's residential address;
(b) an email address of the holder;
(c) a phone number of the holder;
(d) the holder's passport details;
(e) the address of an employer of the holder;
(f) the address of the location of a position in which the holder is employed.
8579
(1) If the visa is a Subclass 491 (Skilled Work Regional (Provisional)) visa, the holder, while in Australia, must live, work and study only in a part of Australia that was a designated regional area at the time the visa was granted. (Based on the law at the time of visa grant) …
8580
If requested, in writing, by the Minister to do so, the holder must provide evidence of any or all of the following within 28 days after the date of the request:
(a) the holder's residential address;
(b) the address of each employer of the holder;
(c) the address of each location of each position in which the holder is employed;
(d) the address of an educational institution attended by the holder.
8581
If requested, in writing, by the Minister to do so, the holder must attend an interview:
(a) at a place and time specified in the request; or
(b) in a manner, and at a time, specified in the request.
My observation on ‘a’ designated regional area confirms that movement around any designated regional area, whether you move from Hobart (postcode 7000) to Newcastle (postcode 2300), is accepted as long as you notify within 14 days after the move.
Every situation is unique, please contact us for an expert assessment of whether your proposed changes in your circumstances are acceptable and also to help you manage your 491 visa to ensure that your 191 PR is prepared without any flaws.
How can Agape Henry Crux Help You?
If you want to find out more, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.