Visas and domestic violence

Family violence is not acceptable or tolerated in Australia.

If you are living in Australia on a visa and experiencing family violence you will likely be very concerned, not only about your wellbeing, but the future of your residency here.

If you are on a temporary partner visa or you married whilst on a prospective marriage visa and you or your dependants have experienced abuse, the family violence provisions provide that the grant of a permanent visa may still be considered, despite the breakdown of your relationship.

In other words, you should not be prevented from continuing with an application for permanent residency, for having ended a relationship because of violence.

These provisions are aimed at ensuring people do not stay in abusive relationships simply for fear of being deported.

If you or your dependants have experienced violence and your relationship has ended, it is important to get legal advice, so you can consider your options and, obtain the relevant supporting information to make a family violence claim.

What is family violence?

Family violence is conduct, either actual or threatened, that causes you to fear for your safety or wellbeing. The conduct can be directed at you, your dependants (children) or your property. Family violence includes physical and psychological harm, forced sexual relationships, isolation and financial deprivation.

To continue with your visa application, you must prove to the Department of Immigration that:

• your relationship was genuine until it ended; and
• family violence took place during the relationship.

Proving family violence

A family violence claim may be supported by judicial evidence or non-judicial evidence.

Judicial evidence can be proven by a court ordered injunction or restraining order made against your ex-partner either under the Family Law Act 1975 or under a state or territory law. Alternatively, a court conviction or finding of guilt made against your ex-partner for assault against you or a dependant can be used.

Upon presentation of judicial evidence, a decision maker must make a finding of family violence against the victim. This of course provides a more streamlined process for an applicant to prove the existence of family violence and continue with the permanent residency visa application.

Non-judicial evidence requires the applicant to complete a statutory declaration. This is a sworn or affirmed statement made by you attesting to the truth of the facts contained in the statement. The statutory declaration sets out the events regarding the family violence and names the person alleged to have committed the violence.

The statutory declaration must be supported with two other forms of evidence from at least two of the following categories:

• a medical or hospital report or discharge summary, or statutory declaration from a registered medical practitioner or nurse;
• a record of assault, police report or statutory declaration by a police officer or witness statement provided to a police officer during an investigation;
• a report or statutory declaration made by an officer of a child welfare or protection authority;
• a letter of assessment or report from a staff member of a women’s refuge or family/domestic violence crisis centre;
• a statutory declaration made by a social worker who has provided counselling and assistance to the alleged victim;
• a statutory declaration made by a registered psychologist who has treated the alleged victim;
• a statutory declaration by a counsellor or family consultant from a Family Relationship Centre;
• a statutory declaration made by a school counsellor or school principal.

The documents must generally identify the alleged victim of violence and perpetrator. The Regulations set out the specific criteria to be addressed for each category of evidence. For example, medical documents should provide details of the physical injuries sustained or mental health treatment provided for a condition that would be consistent with the psychological abuse claimed.

What next?

Once family violence is established, a visa applicant may be granted the visa applied for, providing he or she still meets all other relevant criteria.

If the Department of Immigration is not satisfied, on the evidence provided, that family violence has occurred, it must seek, and rely on, the opinion of an independent expert.

Policy currently requires that all evidence submitted (even if more than what is required) must be considered by the decision maker. Accordingly, in some cases it will be beneficial to provide as much evidence as possible.

Conclusion

Special rules apply which allow victims of abuse who are on certain visas to qualify for permanent residency despite the breakdown of their relationship.

The regulations require proof of family violence before a permanent residency application can be further considered.

Victims of family violence are urged to contact an experienced migration agent or immigration lawyer to ensure that their rights are fully protected, and the  appropriate evidence can be obtained to support an application for permanent residency.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.