The Migration Regulations 1994 contains ‘family violence provisions’ (FVP) aimed at protecting victims of family violence who have been sponsored by their partner to reside in Australia, from remaining in an abusive relationship to obtain permanent residency in Australia.

In cases where an individual falls under these provisions (ie – where they can provide evidence as required by the Migration Regulations 1994 that they or their dependants have been the victim of family violence committed by their Australian spouse or partner), the individual can still be considered for permanent Australian residency even if the relationship has broken down or the sponsor has withdrawn their support for the application.

Definition of Family Violence:

According to the Migration Regulations 1994, ‘family violence’ is defined as where the partner of the alleged victim has committed violence or threats of violence against;

• the alleged victim
• a member of the family unit of the alleged victim or of the alleged perpetrator
• the property of the alleged victim
• the property of a member of the family unit of the alleged victim or of the alleged perpetrator

AND - as a result of this violence or threat of violence, the alleged victim or a member of their family unit reasonably fears for, or are reasonably apprehensive about their personal safety or well-being.

It is interesting to note that in these provisions, while the ‘violence or threat of violence’ does not need to be directed toward the ‘alleged victim,’ it must cause the alleged victim to subsequently hold a fear for their own safety and wellbeing.

Eligibility:

The family violence provisions outlined in the Migration Regulations 1994 apply to applicants for the following visa classes;

Family Stream Visas:

Primary applicants for:

• Partner (permanent) – offshore
• Spouse (permanent) – offshore*
• Interdependency (permanent) – offshore*
• Partner (temporary and permanent) – onshore
• Spouse (temporary and permanent) – onshore*
• Interdependency (temporary and permanent) – onshore*

*Note that these visas are no longer available from 1st July 2009, however, existing applicants are still covered by the family violence provisions.

Skilled Stream (Business) Visas:

• Established Business in Australia
• State/Territory Sponsored Regional Established Business in Australia
• Labour Agreement
• Employer Nomination Scheme
• Regional Sponsored Migration Scheme
• Distinguished Talent

There are some variations as to how the Family Violence Provisions apply to each particular visa class. Your migration agent/lawyer will be able to help you determine the specifics of how the FVP applies to your particular visa subclass.

It’s important to understand that while you are still living with your partner (sponsor), you will not be considered as coming under the Family Violence Provisions. These provisions only come into effect when the relationship between the nominating sponsor and the applicant has ceased. If you are still living with your partner, it will be difficult to prove that the relationship has ‘ceased’ in any real sense, and therefore unlikely that your application will succeed.

What To Do If There Is Family Violence:

If you are an applicant for one of the above visa subclasses and you have experienced family violence, you should inform the Department of Immigration and Citizenship (DIAC) immediately. Once DIAC has been notified, they are able to suspend the processing of your application until a court order or other evidence of family violence can be established.

You may wish to inform your migration case officer of the family violence or you may wish to speak with one of the Family Violence Liaison Officers at each DIAC office. DIAC will require you to lodge a formal statement in writing noting the breakdown of your relationship, the existence of family violence in your relationship, and any change of address since that breakdown.

If you do not contact DIAC regarding the alleged family violence in your relationship, and your partner withdraws their sponsorship of you, then your application may be refused by DIAC because they are unaware that family violence is present in your relationship.

The Evidence Required To Establish Family Violence:

You must provide DIAC with evidence of the family violence that has occurred within your relationship, in order to fall within the Family Violence Provisions.

This ‘evidence’ can include things like;

• a restraining order, protection order or an injunction issued by a court against your sponsor. This must be a final court order, not an interim order.
• legal evidence that your sponsor has been convicted of an assault or some other violent act against you, your child or other family member.
• any documentation that has been filed during any court proceedings indicating there was allegations your sponsor had committed violence.
• a legal statutory declaration signed by you and two other ‘competent’ people stating that family violence has been experienced.
• a legal statutory declaration signed by you and one other ‘competent’ person submitted along with a copy of a police record of an assault committed against you by your sponsor.

‘Competent’ People and Statutory Declarations:

DIAC accepts statutory declarations regarding the family violence you or your family members have experienced as evidence that such family violence has been committed by your nominating spouse against you or your family.

You as the applicant must provide DIAC with a statutory declaration explaining the nature of the violence committed against you or your family members, and the details of your sponsor who committed the violence.

You must also provide DIAC with two additional statutory declarations, stating that this violence did indeed occur, from people considered ‘competent’ by DIAC. These people include;

• a doctor
• a registered psychologist
• a registered nurse;
• a social worker (who must be a member of the Australian Association of Social Workers);
• a Family Court counselor
• a child protection worker
• a manager or coordinator of a women’s refuge or domestic violence crisis or counseling service, or a worker within one of these types of services whose position involves responsibility for domestic violence cases.

The statutory declarations you provide to DIAC must come from two different categories of ‘competent’ people. You cannot provide two signed by doctors, for example. The statutory declarations provided by these two ‘competent’ people must explain;

• the name of the victim of the family violence.
• the name of the perpetrator of the family violence.
• their opinion about the family violence that you, your child or other family member has experienced while living in a relationship with your nominating sponsor.
• the basis on which they have formed that opinion. For example, they should note every contact they have had with you and your family where this violence has been witnessed, discussed etc. They should note the psychological, physical or emotional state of the victim of the violence, and whether this is consistent with the reaction of other victims of domestic violence they have encountered. They should also note their previous experience with other victims of domestic violence.

The ‘competent’ person must also provide evidence of the basis on which they are considered ‘competent’ to make a statutory declaration. It is advisable that they attach a copy of their relevant credentials and/or qualifications to the statutory declaration provided to DIAC.

Note that migration agents/lawyers, church officials or community workers who do not have a qualification in social work will not be considered ‘competent’ people for the purpose of the Family Violence Provisions in the Migration Regulations.

Form 1040:

DIAC has created Form 1040 in order to provide you the applicant and the ‘competent’ people testifying for your case with a form to use in making statutory declarations. It is not mandatory that Form 1040 is used, but it is helpful to do so as it provides the writer with an indication of the types of information needed by DIAC.

If an assault committed by your sponsor has been reported to and recorded by police, the police record can be used in place of one of the statutory declarations required by DIAC. Note however that a ‘statement’ given to police does not constitute by itself a ‘police record.’

Once Family Violence is Established:

Once DIAC is satisfied that the relationship you had with your sponsor was genuine at the time you lodged your application, but that family violence has occurred in the relationship which led to its breakdown, you will be granted a permanent Australian visa.

Applicants who were applying for a Spouse visa will be granted permanent visa status in Australia even if two years has not passed since the temporary Spouse visa application was lodged. If you are a secondary applicant for a business or employer nominated visa, you can only be granted a permanent Australian visa if the primary applicant has been granted a permanent visa.

If Family Violence Is Not Established:

If DIAC is not satisfied that family violence within your relationship has been established by the evidence provided by you, they are able to refer your case to Centrelink for an independent assessment.

DIAC is bound to consider any judicially determined evidence (ie – evidence documented in Australia’s legal system) of family violence as proof that family violence has occurred. However, they are not bound to consider any non-judicial evidence (ie – statutory declarations or police records) as evidence establishing that family violence has occurred.

Some points that may cause DIAC to doubt the validity of a case include;

• where the information in relevant statements concerning the case is vague or ambiguous.
• where there is conflicting evidence, including evidence provided previously, evidence within the statutory declarations, or where court cases have been lost of dismissed.
• where the information in the statements is not detailed or appears to lack individual input.
• the length of time the parties had been involved in the relationship.
• the length of time taken by the alleged victim of the violence to report that violence to authorities.
• where the sponsor has lodged court proceedings against the applicant for family violence.
• where the applicant is an adult male. In this case, DIAC requires ‘strong evidence’ that the claim that violence has occurred against the adult male is genuine.

In order to prevent there being any doubt about the validity of your case, you should in all cases provide DIAC with as much additional evidence that family violence has occurred as possible. For example, if you have medical or psychological reports which support your claim, these should be shown to your DIAC case officer who will then consider these in their assessment of your case.

Cases Referred To Centrelink:

DIAC will notify you if it is decided that your claim of family violence will be referred to Centrelink for an independent assessment of your circumstances. All of the information you have provided to DIAC will be passed on to Centrelink, and they will consider this evidence to determine the validity of your case. Centrelink will contact you directly from that point on, should they need to discuss anything with you or if they require further evidence.

The final determination made by Centrelink is binding on you and your DIAC case officer.

Your Rights To Appeal if Family Violence Is Not Established:

If DIAC rejects your application to remain in Australian under the Family Violence Provisions, then in most cases you are entitled to seek a review of that decision at the Migration Review Tribunal (MRT).

If this applies to you then it is crucial that you seek professional immigration legal advice, from an experienced Australian immigration lawyer. They will be able to represent you in MRT proceedings, and will know best what aspects of your case need strengthening in order to give your appeal the best chance of success. Also, strict time limits apply to lodging applications for review at the MRT, and an immigration lawyer will ensure your application meets this limit as well as any other requirements of the MRT.