A few weeks ago, Monica Diaz received an email in her inbox that turned her life upside down.
It came from the Department of Home Affairs and was completely out of blue, she said
"It was a notice which said they are considering cancelling my visa," Diaz told 9news.com.au.
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"The notice said I had 14 days to provide an explanation of why I should remain in the country; otherwise I'd be given 28 days to leave."
Diaz, a 34-year-old Spanish national, has been living in Melbourne for six years.
Shortly after moving to Australia in 2016, Diaz, who works as a dance educator, met the man who would become her partner of four years.
After spending two years together, they applied for a partner visa for Diaz in September 2018.
Pandemic-related processing delays meant the visa took another two years to be granted.
Eighteen months ago, in March 2021, Diaz was given Australian permanent residency.
But, about a month later, Diaz said the relationship with her partner ended.
While distressing at the time, the break-up would turn out to be painful in more ways than one.
Under Australia's immigration law, migrants granted permanent residency through a partner visa cannot have their visa cancelled due to a subsequent break up.
However, if a couple end their relationship before a permanent visa is granted, the application will be cancelled and the visa refused.
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Diaz was informed that, in her case, her ex-partner had made a phone call to immigration about a week after the partner visa was granted.
During that phone call, Diaz's former partner allegedly claimed their relationship had ended in December 2020, four months before the visa was granted.
Eighteen months later, Home Affairs issued the "Notice of Intention to Consider Cancellation" (NOICC)" to Diaz on the basis of the information given during that phone call.
Diaz was later told a different story by her former partner. She said she was extraordinarily "lucky" her ex-partner agreed to sign a statutory declaration confirming they were still in a relationship when the visa was granted.
However, Diaz said she was left "angry and confused" by the Home Affairs notice and was still fearful for her future in Australia.
"I was shocked," she said, "They waited 18 months to act on a random phone call that could potentially end up in me being deported.
"The first three days I was lost. All the recommendations are to seek legal representation, but there is also the fact that not everyone has access to legal representation.
"If that is the case you don't even stand a chance."
Swinging into action, Diaz's employer and friend set up an online fundraiser, which helped raise the money for her to engage a lawyer to prepare a response to immigration on her behalf.
Diaz then called her ex-partner who, to her relief, answered the phone.
She said he appeared confused by the notice she had received from Home Affairs, but agreed to sign the statutory declaration at her lawyer's office.
Diaz's response to Home Affairs, submitted last week and seen by 9news.com.au, also includes apartment leases and bills as evidence.
Despite feeling as though she had mounted a strong case in her defence, Diaz – who is still awaiting a decision from Home Affairs – said her future had been left hanging in the balance.
"I do have a lot of support and a lot of valid evidence but the truth is now everything's out of my control," she said.
"I could get a case officer who is having a bad day and decides I'm not even going to read it and cancel my visa. Those things happen every day."
Diaz, who had been planning to apply for citizenship in Australia, said being deported back to Spain would be devastating.
"It would mean the life that I built for six years here vanishes," she said.
"I have a life here, I have my chosen family here. I have a secure full-time job, I pay taxes, I pay bills. It's nonsense."
Diaz's lawyer, Donald Gordon – who is a partner at SG Lawyers and an immigration and family law specialist – said it was legally problematic that Home Affairs waited for 18 months to put the allegations to Diaz.
"Immigration received this information a year and a half ago, and they just sat on it," Gordon said.
"We've argued in our reply that this is a huge breach of procedural fairness and natural justice.
"You can't do this in the Australian legal system, but immigration tends to get away with these things."
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Gordon said a broader issue, which he had witnessed in the cases of many of his clients, was that the system was left open to exploitation by vindictive, and occasionally abusive, current or former partners.
"It's such a strong tool that disgruntled Australian partners have because you're basically able to hold your partner to ransom even after they've got their permanent residency," he said.
"An ex-partner can simply just call up and make a verbal and then immigration sends them a little, two-line form they fill out and it's done.
"Anyone can do it if they've got a huge grudge or if they want to get back at their partner. It's scary."
Unnecessarily long partner visa processing delays meant vulnerable migrants – who had left behind their family, job and livelihoods to move to Australia – could potentially be exposed to years of abuse, Gordon said.
"The system allows for a huge element of coercive control not only during these relationships, but in the period after (in cases where there is a break-up)," Gordon said.
Under immigration law, there are some protections in place which allow for migrants to be granted permanent visas where they have experienced family violence.
However, gathering evidence of family violence could be difficult, and the protections also did not cover cases where there was no past abuse but a current or former partner could be acting out of spite, Gordon said.
"There's actually a huge difference between family violence and a former partner holding a grudge," he said.
Gordon said he believed changes needed to be made to ensure Home Affairs acted within a reasonable time frame when it came to investigating information passed on to the department.
Migrants should also be given the full details of claims made against them, and have their work rights protected if they chose to appeal a decision by Home Affairs to deport them, Gordon said.
A spokesperson for Home Affairs said the department could not comment on individual cases due to privacy issues.
"Visa cancellation powers help to ensure the protection of the Australian community and the integrity of Australia's borders and visa programs," the spokesperson said.
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