Domestic violence is a grave issue that affects individuals across all walks of life, including those navigating Australia’s migration system. Recognising the vulnerability of visa applicants who may be subject to family violence, the Australian Government has implemented provisions under the Migration Regulations 1994 (Cth) (“Regulations”) to ensure that victims are not forced to remain in abusive relationships to maintain their visa status.
The Regulations provide specific protections for victims of family violence who are applying for certain visas, particularly partner visas. Under these provisions, an applicant may retain eligibility for a visa even if their relationship with the sponsoring partner has ended, provided they can demonstrate that the relationship breakdown was due to family violence.
Some examples of “violence” include physical and sexual violence, any threatening, emotional abuse, psychological abuse, damage to property, financial abuse, repeated name calling, isolation or distribution of any intimate images without consent. This is not an exhaustive list and may include other acts or omissions by the sponsoring partner to the visa holder.
To access these protections, a visa applicant must demonstrate that they have experienced “relevant family violence” as defined under the regulations. The Regulations provide two pathways for establishing family violence. Namely, judicially determined claims and ones that are not.
Judicially determined claims involve evidence such as court-issued protection orders (ie Family Violence Restraining Orders, Court Ordered Injunctions and Conduct Agreement Orders) or a conviction for a family violence offence (ie assault in circumstances of aggravation or damage to property). In cases where judicial evidence is unavailable, the applicant may rely on non-judicial evidence. This typically involves statutory declarations from the applicant and other competent persons, such as medical practitioners, social workers, or police officers, attesting to the occurrence of family violence. The matter is determined on a case-to-case basis and by reviewing the evidence in its totality.
There are special rules, known as the Family Violence Provisions (FVP) for people who have applied for permanent residency (PR) but have experienced family violence and are concerned about the impact of leaving the relationship and its effect on their PR. There is information available on the Australian Department of Home Affairs website at www.homeaffairs.gov.au.
Bear in mind that in a situation where you are bound by an injunction in a Family Court Order, Family Violence Restraining Order, Conduct Agreement Order (CAO) or an Undertaking, this information will assist the sponsored spouse in their claim of FVP. It may assist in supporting a claim in alleged family violence, however there may be a need for supporting documentation where the situation is not clear.
For example, the injunctions, CAO or Undertaking may simply be a precautionary measure prior to establishing whether family violence did occur or it could simply be agreed terms between the parties, notwithstanding there being no admission, proof, or convictions of family violence.
For further information or assistance with family violence claims in the context of migration, individuals are encouraged to seek legal advice from a qualified migration lawyer or registered migration agent, or for how they impact on Family Law in general, please don’t hesitate to call us on 9375 3411.
About the Author: This article has been authored by Asja Mustapha, Asja is a dedicated legal practitioner known for her commitment to excellence and client-focused approach. After completing a Diploma in Law Enforcement in 2011 with high distinctions and graduating with a Bachelor of Laws from Edith Cowan University in 2019, she developed strong analytical skills early in her career, including assisting in one of Australia’s high-profile criminal matters in 2012.
