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Australian visas and domestic violence

The current global pandemic has been a difficult time for many. Sadly, in Australia, there has been a rise in domestic violence, with many victims/survivors quite literally trapped with their abusers due to the rules around isolation and lockdown.

In partner visa relationships there can be a power imbalance because the visa applicant is reliant on the Australian sponsor for their visa status. In some abusive relationships, this imbalance is exploited by the Australian sponsor to control their partner and the threat to ‘withdraw sponsorship’ can make visa applicant feel like they have to stay in the relationship.

In this blog post we will run through the ‘family violence exception’ that means partner visa applicants can leave their abusive partner and still be granted their partner visa. This exception also exists for distinguished talent visa applicants and dependent child (in the extended eligibility visa class), though it is most commonly applied for partner visas. We will discuss the family violence exception requirements in detail and the process followed in practice.

Eligibility for ‘Family Violence Exception’

It is important that visa applicants or holders know there may be a way to leave an abusive partner without losing their visa status. The ‘family violence exception’ is available to most partner visa applicants, with the exception of offshore partner visa (subclass 309) or prospective marriage visa (subclass 300).

If you have applied for one of the visas listed in the following group, you may be eligible to ask the Department of Home Affairs (the Department) to apply the ‘family violence exception’ to grant your visa despite the breakdown of your relationship with your partner:

  • Partner visa (subclass 100)
  • Dependent Child (in the Extended Eligibility visa class) (subclass 445)
  • Partner visa (subclass 801)
  • Partner visa (subclass 820)
  • Distinguished Talent (subclass 858)

Requirements for proving family violence

There are very specific requirements that you need to meet to satisfy the Department that they should apply the family violence exception in your case.

The Department will need to be satisfied that:

  • you were in a genuine ongoing relationship to the exclusion of all others up until the relationship broke down
  • the family violence occurred while the relationship was on ongoing
  • you have provided evidence that meets either the judicially determined family violence requirements or the non-judicially determined family violence requirements (see below)

It may seem counter-intuitive, but this means you still need to provide evidence that you were in a relationship up until the relationship ended. It also means that the violence cannot have only occurred after the relationship ended.

Judicially determined requirements

In some cases you may have the necessary documents to the meet the ‘judicially determined’ family violence requirements. To do this you will need at least one of the following:

  • a court injunction under the Family Law Act 1975, or
  • an Australian court order, or
  • a conviction or finding of guilt against the alleged perpetrator in respect of the alleged victim.

A final intervention order in Victoria is generally considered to be an acceptable form of evidence that meets these requirements. If a final intervention order was made by a court, a statement around the history of the relationship and the family violence should also be submitted, along with the final intervention order.

If the police have been called to intervene or have taken a report from you at any time in relation to an altercation between you and your partner, then an intervention order may exist, regardless of whether you applied for one. In many cases the police proceed to apply to the Court to issue an intervention order, regardless of whether the victim wishes to proceed with the case.

You can contact the Magistrates Court to find out whether an intervention order was issued against your partner (and if it was ‘interim’ or ‘final’) by emailing the Magistrate’s Court. The email address for Victoria is: mmcfamilylawoffice@magistratescourt.vic.gov.au.

Non-judicially determined

If you don’t have one of the official court documents listed above you may still be able to meet the requirements of the non-judicially determined family violence requirements. To do this you will need a statutory declaration around history of the relationship and the family violence AND at least 2 other pieces of evidence from this list:

  • A medical report, hospital report, discharge summary or statutory declaration by a registered medical practitioner or registered nurse
  • A report, record of assault, witness statement or statutory declaration by a police officer or witness statement from someone other than the alleged victim to a police officer
  • A report or statutory declaration made by an officer of a child welfare or protection authority
  • A letter or assessment report made by a women’s refuge or family/domestic violence crisis centre
  • A statutory declaration made by a registered social worker who has provided counselling or assistance to the alleged victim
  • A statutory declaration made by a registered psychologist who has treated the alleged victim
  • A statutory declaration made by a family consultant or family relationship counsellor
  • A statutory declaration made by a school counsellor

It is important to know that you must give two different pieces of evidence from the above list. For example, you cannot give two statutory declarations made by a school counsellor.

Generally, the contents of the statutory declaration, reports and letters should include the following:

  • The name of the alleged victim, and
  • The name of the alleged perpetrator, and
  • Details an incident/s of family violence
  • If written by anyone other than the victim/survivor, it should state that in their opinion, the alleged victim was subjected to family violence and provide reasons for the opinion.

It is important to know that the requirements for the non-judicially determined pathway are very specific and must be carefully followed. If something is missing from the report then it may not count towards meeting the requirements.
Other resources

If you are in a relationship affected by family violence and require assistance, the following support services and resources are available to you:

For confidential advice on your migration situation, please contact our office on 03 9088 6264.

We note the above is information only and is not legal advice. This information is current as at the time of publishing. We recommend you speak to one of our migration lawyers for a free 15 minute phone or video call to discuss your visa application if you have any questions.

An experienced migration lawyer can make all the difference when you need.