Form 1022 Change of Circumstances: When to Lodge It

When do you have to lodge Form 1022?

Form 1022 must be lodged as soon as practicable after your circumstances change, not when the Department of Home Affairs next contacts you. That timing comes from section 104 of the Migration Act 1958, which is the provision the form exists to satisfy. The obligation is triggered by the change itself. It is not triggered by a request from a case officer, and it is not discharged by mentioning the change at an interview months later or in a submission filed at decision stage.

The form is Form 1022 Notification of changes in circumstances (Section 104 of the Migration Act 1958). Its information page states that section 104 of the Migration Act 1958 requires you to inform the Department of any changes in your circumstances that affect any answer to a question in your application form. That is the whole test. The question is not whether the change feels important to the applicant. The question is whether an answer already given has become incorrect.

There is no fixed number of days in section 104. The statutory expression is "as soon as practicable", and it runs from the change, not from the point at which notifying the Department becomes convenient. For a change the applicant knew about when it happened, that means days rather than months. Where the applicant learns of the change later, for example a death in the family unit that relatives did not report at the time, the period runs from the day the applicant became aware, and the notification should say so on its face.

The timing matters because a delegate decides an application on the file in front of them. Departmental policy for partner visas directs delegates to satisfy themselves that there has been no material change in the family's circumstances where significant time has passed since the relationship was assessed. A change that was never notified, and that the Department discovers for itself at that point, is treated very differently from the same change disclosed as soon as practicable. The delay becomes a fact the delegate weighs, separately from the change.

My Migration Lawyers prepares section 104 notifications in partner visa matters and protection visa matters. In most of those matters the change itself is manageable. The damage is done by the delay in reporting it, or by reporting it in the wrong form, or by reporting it in terms that create a new problem.

What section 104 of the Migration Act requires

Section 104 requires a non-citizen to inform an officer in writing, as soon as practicable, of the new circumstances and of the correct answer in them, where circumstances change so that an answer on the application form is incorrect.

The subsection reads: "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."

Four elements follow from that wording, and each of them is regularly missed.

The first is the trigger. It is a change in circumstances that makes an existing answer incorrect. An applicant who reads the question on their application form about relationship status, or about members of the family unit, or about employment, and finds that the answer they gave is no longer true, has the obligation. No further threshold applies.

The second is the phrase "or an answer under this section". A notification already given on Form 1022 can itself go out of date, and when it does, a further Form 1022 is required. An applicant who reported a separation and later reconciled must report the reconciliation. The obligation is continuing, not a single event.

The third is that the notification must be in writing. A telephone call to the Department's general enquiry line does not satisfy section 104, and neither does a conversation at an interview. Written notification also creates the record that later proves the applicant complied, which is the point at which most disputes about section 104 are actually resolved.

The fourth is that the notification must state the correct answer, not merely the fact that something has changed. A notification that says the applicant's relationship status has changed does not comply. Form 1022 asks the applicant to list the information provided on the application which is no longer current and to give the new correct details, and that is exactly what the section requires.

Section 104 sits in Subdivision C of Division 3 of Part 2 of the Migration Act, which is headed "Visas based on incorrect information may be cancelled". It sits beside section 101, which requires application forms to be completed so that all questions are answered and no incorrect answers are given, section 102, which deals with passenger cards, section 103, which prohibits bogus documents, and section 105, which requires incorrect answers to be corrected. That placement is the clearest available statement of what the provision is for. Section 104 is an integrity provision, and non-compliance with it is dealt with as an integrity failure rather than as an administrative oversight.

The obligation is personal to the applicant. A sponsor does not carry it. A representative does not carry it either. A lawyer prepares and lodges the form, and the applicant signs the declaration on it.

Which changes in circumstances have to be notified

A change must be notified where it makes an answer already given on the application form incorrect, which in practice means relationship status, the composition of the family unit, identity and travel documents, and any other answer the form asked for that is no longer true.

The Department's own procedural instructions for the Subclass 820 partner visa, the Subclass 309 partner provisional visa and the Subclass 801 partner visa each carry the same note. Section 104 requires applicants to inform a delegate in writing of changes in their circumstances if it means that an answer to a question on their application form is incorrect, and that would include circumstances such as the relationship ending, or the composition of the family unit changing as a result of birth, or death, or a change in marital or relationship status. The same note appears in the Subclass 801 instruction with the added warning that second stage applicants are still expected to notify the Department even after the provisional visa has been granted.

### Relationship and family unit changes

These are the changes that most often decide a partner visa matter. A separation, a divorce, a reconciliation, a marriage where the application was lodged on the basis of a de facto relationship, the birth of a child and a death in the family unit all make an existing answer incorrect. So does the withdrawal of sponsorship. Where a relationship has ended, the notification obligation exists regardless of what the applicant intends to do next, and it is a separate question from whether the application can still succeed. That second question is dealt with in what happens to a Subclass 820 application when the relationship breaks down, and it should be answered before the notification is drafted, not afterwards.

A child born in Australia to a parent who has a valid application on hand is treated differently from other family members. Under regulation 2.08 of the Migration Regulations 1994, that child is taken to have applied for the same visa as the parent on the date of birth, so no separate application form is required. Departmental policy is nonetheless that the parent completes Form 1022 and provides the child's birth certificate. The Department's Subclass 866 protection visa page says the same thing in plainer terms: complete Form 1022, provide the child's original birth certificate, and attach both in ImmiAccount.

### Identity and travel document changes

A new passport, a change of name, or a correction to a date or place of birth all affect answers on the application form and all have to be reported. Identity is assessed at decision stage, and an identity document that does not match the answers on the file is one of the more damaging things a delegate can find. Where the change is limited to passport details, the Department's own systems accept an update through ImmiAccount, which is dealt with in the next section.

### Other answers that are no longer true

The application form is the reference point, so the range of reportable changes follows the questions it asked. Employment, study, address history, military service, previous visa refusals, criminal charges and convictions, and health matters that the form asked about are all capable of engaging section 104. The Department's Subclass 866 page lists the changes it expects to be told about after an application is made, and the list includes changes to name, telephone number, email, address or passport, changes to marital or de facto status, pregnancy, the birth of a child, a death in the family, and a decision to withdraw the application. That list is a useful practical guide, but it is not the legal test. The legal test remains whether an answer already given has become incorrect.

Form 1022 is not the change of address form

A change of address, contact details or passport details is not notified on Form 1022. This is the single most common error made with the form, and it runs in both directions.

The obligation to keep contact details current comes from subsection 52(3B) of the Migration Act, not from section 104. Departmental policy for the Subclass 100 and Subclass 801 partner visas states that subsection 52(3B) requires the applicant to inform the Department of any change in contact information, and it names the accepted methods: a Form 929 Change of address and/or passport details, or an update through ImmiAccount. Form 929 is described by the Department as the form used to advise of any change to your address or your passport details.

Lodging a Form 1022 for a house move is harmless but unnecessary. The error that causes real damage is the reverse. An applicant who separates from their sponsor, updates their address through ImmiAccount because they have moved out, and assumes the Department has been told, has not complied with section 104. The two obligations sit in different parts of the Act, they exist for different reasons, and one does not discharge the other.

Keeping the address current matters for a separate reason that has nothing to do with section 104. The Migration Act sets out the methods by which the Department may give a document and the day on which the applicant is taken to have received it. The response period for a request for further information, and the period for applying for review of a refusal, run from that deemed date rather than from the day the applicant actually opened the letter. An address left uncorrected is the most common way a winnable application becomes a refusal on an incomplete file. Applicants who are not confident with the Department's online system should read the firm's guide on how to create an ImmiAccount before attempting either kind of update.

Form 1022 or Form 1023: a change against a mistake

Form 1022 is for a circumstance that has changed since the application was lodged. Form 1023 Notification of incorrect answer(s) is for an answer that was incorrect when it was given.

Form 1023 states the distinction itself. It directs that where you wish to notify the Department of any change in your circumstances, which means that information you have previously provided in an application is no longer correct, you should use Form 1022 Notification of changes in circumstances. Section 105 of the Migration Act is the provision behind Form 1023. It requires a non-citizen who becomes aware that an answer given in the application form, an answer on a passenger card, information given under section 104, or a response given under section 107 was incorrect when it was given, to notify an officer in writing of the incorrectness and of the correct answer, as soon as practicable.

Two consequences of that wording are worth stating plainly.

The first is that a Form 1022 can itself be wrong, and if it is, section 105 applies to it. Question 12 of Form 1023 expressly lists Form 1022 as one of the places the incorrect information may have been provided. A rushed notification lodged to meet the "as soon as practicable" standard, with details that turn out to be inaccurate, creates a second obligation rather than closing the first.

The second is that the two obligations end at different points. Section 105(2) provides that the obligation applies despite the grant of any visa, and Form 1023 puts it in the same terms: the obligation remains even if you are subsequently granted a visa. Section 104 is limited in a way section 105 is not, and that limit is dealt with in the next section.

There is also a practical difference that applicants rarely anticipate. Form 1023 asks, at question 14, why the incorrect information was provided. That answer goes on the file permanently, and it is read at decision stage against Public Interest Criterion 4020, the integrity criterion in Schedule 4 to the Migration Regulations. Choosing between Form 1022 and Form 1023 is therefore a legal question about what actually happened and when, not an administrative choice between two similar documents. Where an applicant is unsure which applies, the honest answer is usually that both do, because a change occurred and an earlier answer was also wrong, and in that case both forms are lodged.

When the obligation to notify under section 104 ends

Section 104 covers changes occurring before the visa is granted, for an applicant who is in Australia when it is granted, and changes occurring after the application and before immigration clearance, for an applicant who is outside Australia when it is granted.

Those limits are in the section itself. Subsection 104(2) provides that if the applicant is in Australia at the time the visa is granted, subsection (1) applies to changes in circumstance before the visa is granted. Subsection 104(3) provides that if the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. Form 1022 states the same rule for applicants in plain terms: you do not have to notify the Department of changes in your circumstances that occurred after you were granted your visa, if you applied in Australia, or after you have been immigration cleared, if you applied outside Australia.

That is where most explanations of Form 1022 stop, and stopping there produces a wrong answer. Subsection 104(4) provides that subsection (1) applies despite the grant of any visa. Subsections (2) and (3) fix which changes are covered. They do not release an applicant from the duty to notify a covered change once the visa has been granted. A change that occurred while the application was on hand, and that was never reported, still has to be reported, and the grant of the visa does not make the omission safe. Section 105 operates in the same way for answers that were wrong when given, and subsection 105(2) says so in identical language.

Two stage partner applications create a further trap. The grant of a Subclass 820 partner visa does not end the matter, because the Subclass 801 application remains on hand until it is decided. Departmental policy for the Subclass 801 states that applicants are required under section 104 to notify changes in their circumstances, and that second stage applicants are still expected to notify the Department if, for example, changes occur in the composition of their family unit. An applicant who treats the provisional grant as the finishing line, and who separates, marries, has a child or changes identity documents in the years that follow, is still within section 104 for the permanent application.

What happens if Form 1022 is not lodged

Failure to comply with section 104 is a ground on which a visa can be cancelled.

The Migration Act deals with it in sequence. The Department gives the holder a notice inviting comment on possible non-compliance with the obligation to give correct answers. A decision is then made about whether there was non-compliance. If there was, the Minister may cancel the visa after considering the holder's explanation and having regard to prescribed circumstances, and must cancel it where the regulations declare that a visa must be cancelled. There is a separate route for a person who has not yet been immigration cleared: paragraph 116(1)(d) allows cancellation where the visa would be liable to be cancelled under Subdivision C if the holder had entered Australia and been immigration cleared.

The Department states the risk to applicants in its own words on Form 1023, and the warning applies equally to section 104. If you do not comply with the requirement to give correct answers, your visa is liable to be cancelled under the Migration Act 1958. If you have been granted a visa, the information you provide will be taken into account in deciding whether you should continue to hold it. If you are an applicant whose visa has not yet been granted, the information will be taken into account when assessing your application.

The downstream consequences are severe and they are set out in the Department's own cancellation forms. A person whose visa is cancelled while in Australia becomes an unlawful non-citizen, and unless another visa is held or granted, is liable to be detained and removed. Where a further substantive visa application was made while the cancelled visa was held, any Bridging A, B or C visa granted in relation to that application also ceases. Visas held by members of the family unit because of their relationship to the holder may be cancelled as well. An exclusion period may apply, which can prevent the grant of further visas and can prevent a valid application being made in Australia. Anyone who has received a notice of intention to consider cancellation should read what the firm publishes on visa cancellations before responding to it.

Cancellation is not automatic, and that is the point most worth holding on to. A person in Australia is given an opportunity to comment on the grounds before a final decision is made. The quality of that response is what decides the outcome, and it is prepared against the specific ground raised rather than by explaining the applicant's general good character.

The quieter consequence is the one that affects far more people. An unnotified change that surfaces at decision stage does not usually produce a cancellation. It produces a refusal, because the delegate cannot be satisfied of a criterion on a file that has been shown to be out of date, and because the omission itself is now on the record.

How My Migration Lawyers deals with a change of circumstances

The firm treats a change of circumstances as an advice question first and a form second.

The first step is to identify which answers on the lodged forms the change has made incorrect. That requires reading the application as lodged rather than relying on what the client remembers answering, because the obligation attaches to the answers actually given. The second step is to decide which provision applies. A change since lodgement engages section 104 and Form 1022. An answer that was wrong when it was given engages section 105 and Form 1023. A change to contact or passport details engages subsection 52(3B), and is handled through Form 929 or ImmiAccount rather than either of the other two forms.

The third step is to advise the client on what the notification will mean for the application before it is lodged, not afterwards. A notification of separation, of a new relationship, or of a charge laid against the applicant changes how the file will be read, and the client is entitled to understand that and to receive advice on the options before anything is sent. The notification itself is drafted to state the new circumstances and the correct answer, and nothing else. It is the client's own account of what happened, read and corrected by the client, and it is not lodged until the client confirms that it is accurate.

The fourth step is lodgement against the correct application in ImmiAccount, with any supporting document the Department expects, such as a birth certificate for a newborn child or a marriage certificate for a change in relationship status, and a record kept of the date it was lodged. Where the client is a protection visa applicant, the same notification may also affect the claims, and that is assessed at the same time rather than left to the protection visa interview.

All advice and every notification prepared by the firm is settled by Weiwei Zhang, Principal Lawyer at My Migration Lawyers. Anyone whose circumstances have changed while a visa application is on hand, or who has realised that a change from months ago was never reported, can request a consultation. The earlier that happens, the more of the file remains open to repair.