Family violence is not accepted in Australia under any circumstances. If you are in Australia and have applied as a partner for certain permanent residence visas, you (and any member of your family unit included in your application) do not have to stay in an abusive relationship just to secure permanent residency. Your safety is paramount, and it is important to be aware of your rights around this area.
Our office will outline the relevant provisions of the Migration Act 1958 (‘the Act’) and the Migration Regulations 1994 (‘the Regulations’) which may be specific to your circumstances.
What permanent residence visas are covered?
If you hold a temporary Partner visa (subclass 309 or 820) or a Prospective Marriage visa (subclass 300) and experience family violence, and your relationship has ended, there are provisions in Australia’s migration laws to allow you to continue with your permanent Partner visa (subclass 100 or 801) application.
What constitutes family violence?
A common misconception is that family violence only includes physical violence. In reality, the definition of family violence is far broader. It extends to psychological abuse or harm, unreasonable withholding of financial support, and forced isolation from family, friends and culture. You should note that family violence is any conduct that makes you reasonably fear for your safety or wellbeing. This can be actual or a threat, and directed at you, your family members, or your property.
How do I access the family violence provisions?
You must first satisfy the definition of spouse as outlined in the Migration Act 1958. All circumstances of your relationship will be considered by the Department of Home Affairs, including the matters listed in regulation 1.15A if you are married to your sponsoring partner.
On the other hand, if you are in a de facto relationship, you must first meet the definition of de facto partner. The Department will consider the matters listed in regulation 1.09A.
Whether you are married or in a de facto relationship, you will need to demonstrate that you and your sponsoring partner have a “genuine and continuing relationship.”
The recent case of Liu v Minister for Home Affairs [2019] FCA 1925 confirms that if the Department forms the view that the relationship is not genuine and continuing, it is not required to then go on and consider whether the appellant had in fact suffered family violence committed by the sponsoring partner.
So, how do you prove a genuine and continuing relationship?
Firstly, the Department will consider the financial aspects of your relationship. If you and your sponsoring partner have a joint bank account or jointly own property, this will be most helpful. Alternatively, you may be renting together, with both of you listed as tenants on the lease. Ideally, you are both jointly responsible for everyday household expenses, utility bills and other major expenditure.
The second aspect of your relationship which is relevant is the nature of your household. You will need to show evidence about how you and your sponsoring partner share your everyday household duties and arrangements. If you have children, you may wish to give evidence on matters such as who takes them to school, who assists with homework, and the like.
The third aspect which you need to give evidence on is the social aspect of your relationship. This might include documentation highlighting joint travel, as well as photos taken of you and your sponsoring partner overseas. It is also a worthwhile exercise obtaining written statements from family and friends who can verify that you and your sponsoring partner are a couple.
Finally, the Department will consider the nature of your commitment to one another. This will include the duration of the relationship, the extent of companionship, and that you intend to stay together in the long term. Evidence that you have maintained contact whilst apart may also be provided.
If your visa application does not contain supporting documentation to demonstrate the factors outlined above, then it is vital for you to explain why certain information or documentation is unavailable.
Assuming the Department is satisfied there is a genuine relationship between you and your sponsoring partner, and it has been established that family violence occurred while the relationship was intact (that is, that the violence did not occur after the relationship had broken down), then family violence provisions can be accessed.
How do I show family violence has occurred?
The Department must be satisfied that you have suffered family violence. You can do this with different kinds of evidence.
- Court documents
Provide one of the following from a court of law:
- a court injunction under the Family Law Act 1975 against your sponsoring partner;
- court order against your sponsoring partner made under a state or territory law;
- a court has convicted your sponsoring partner of assault against you or your dependant(s);
- a court has recorded a finding of guilt against your sponsoring partner of assaulting you or your dependant(s);
- other court documents such as a family violence intervention order.
- A statutory declaration and official documents
If you cannot provide a document from a court of law, complete Form 1410 – Statutory declaration for family violence claim. If the victim is a dependent child, complete the declaration for them.
You will also need to provide two (2) official documents with the statutory declaration. For a full list of the types of documents you can provide, please visit the Department of Home Affairs website.
If your first written claim of family violence was made prior to 24 November 2012 you will need to complete Form 1040 – Statutory declaration relating to family violence.
Please feel free to schedule a consultation with us today by contacting 131 LAW [131 529] or email us at Info@madisonmarcus.com.au
4 December 2019
