Partner Visas And Domestic Violence

In a partner visa relationship, a visa applicant is reliant on an Australian sponsor for their visa status. If the relationship ends due to family and domestic violence, special provisions in the Migration Regulations 1994 can apply which allow for the visa to still be granted.

Family and domestic violence

Family and domestic violence includes any violent behaviour directed at people or property, such as:

• punching, hitting, pushing or choking;
• sexual assault;
• verbal or emotional abuse;
• controlling behaviour;
• stalking;
• online abuse;
• financial abuse;
• forced isolation.

Notification of domestic or family violence

Depending on the circumstances, a partner visa holder can notify the Department of Home Affairs in ways such as:

• online via the “Changes in your situation” section on the department website;
• completing a Form 1022 “Notification of changes in your circumstances”;
• contacting a visa processing officer;
• phoning the department on 131 881.

The matter cannot be referred to police without the consent of the visa holder or applicant unless there is an immediate threat to life or safety.

A victim of domestic or family violence should set up their own ImmiAccount, and if applicable, remove their application from any other ImmiAccounts, such as their former partner’s.

Applying for consideration

The family violence provisions in the Regulations apply to a person who:

• has married under a Subclass 300 Prospective Marriage visa and applied for a temporary or permanent partner visa (Subclass 820/801); or
• is awaiting the outcome of an application for a temporary partner visa (Subclass 820); or
• has been granted a temporary partner visa (Subclass 820); or
• has entered Australia on a provisional partner visa (Subclass 309).

To be considered under the provisions, a person needs to show that a genuine relationship with the sponsor existed, “relevant family violence” was perpetrated, and that the family violence occurred during the relationship.

“Relevant family violence” means conduct, actual or threatened, towards:

• the alleged victim or their property;
• a member of the alleged victim’s family or their property;
• a member of the alleged perpetrator’s family or their property;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

A person is taken to have suffered family violence, and the alleged perpetrator is taken to have committed it against the alleged victim, if:

• a court has granted an injunction against the alleged perpetrator;
• a court has made a protection order against the alleged perpetrator in relation to the alleged victim;
• the alleged perpetrator has been found guilty or convicted of violence against the alleged victim.

Protection orders can be made in every state and territory and are recognised nationally. The type of protection order depends on the state or territory in which it is made, and can be called a Domestic Violence Order, Family Violence Order, Restraint Order, Personal Protection Order, Intervention Order, Apprehended Violence Order, or Family Violence Intervention Order.

A visa applicant can also make a “non-judicially determined claim of family violence” if the alleged victim is:

• a spouse or de facto partner of the alleged perpetrator;
• a dependent child of the alleged perpetrator, a dependent child of the spouse or de facto partner of the alleged perpetrator, or a dependent child of both of them;
• a family member of the spouse or de facto partner of the alleged perpetrator.

The alleged victim or another person on their behalf must present a statutory declaration about the violence. Two other evidentiary documents must be supplied with the statutory declaration. These can be medical reports, police witness statements, reports from a child welfare or child protection authority, a letter from a women’s refuge or domestic violence crisis centre, a letter from a school principal or counsellor, or a statutory declaration from a social worker, psychologist or family relationship counsellor.

If an application contains a non-judicially determined claim of family violence, the minister must consider whether the alleged victim has suffered the family violence claimed, and if they are not satisfied the alleged victim has, the minister must seek the opinion of an independent expert.

These special provisions also apply to Subclass 858 Global Talent (Class BX) visas and sponsored skilled visas but are most commonly applied to partner visas.

Visa cancellations

Only a minister or delegated officer has authority to cancel a visa. A visa can be cancelled when a holder does not meet character requirements, which means a perpetrator of family or domestic violence may have their visa cancelled. A victim will not have their visa cancelled if the relationship breaks down due to family or domestic violence.

For advice or representation in any legal matter, please contact Armstrong Legal.