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The following information was provided by the Department of Immigration and Citizenship, from their Factsheet 38. The information was produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.

Introduction

The Family Violence Provisions allow certain people applying for permanent residence in Australia to continue with their application after the breakdown of their married or de facto relationship, if they or a member of their family unit have experienced family violence by their partner.

The provisions were introduced in response to concerns that some partners might remain in an abusive relationship because they believe they may be forced to leave Australia if they end their relationship.

Recent amendments to the Family Violence Provisions

The provisions were amended on 24 November 2012 to streamline the evidence that applicants need to provide when making a non-judicial claim of family violence.

Eligibility

The Family Violence Provisions apply to the following visa subclasses:

Family stream

Primary applicants for:

  • Partner (permanent) (subclass 100) visa
  • Spouse (permanent) (subclass 100) visa*
  • Interdependency (permanent) (subclass 110)*
  • Partner (temporary and permanent) (subclasses 820/801) visas
  • Spouse (temporary and permanent) (subclasses 820/801) visas*
  • Interdependency (temporary and permanent) (subclasses 826/814)*.

*These visas have been closed to new applicants from 1 July 2009, existing applicants are covered by family violence provisions.

Skilled stream (business):

Partners of primary applicants for:

  • Established Business in Australia (subclass 845)*
  • State/Territory Sponsored Regional Established Business in Australia (subclass 846)*
  • Labour Agreement (subclass 855)*
  • Employer Nomination Scheme (subclass 856)*
  • Regional Sponsored Migration Scheme (subclass 857)*
  • Distinguished Talent (subclass 858).

* These visas have been closed to new applicants from 1 July 2012, existing applicants are covered by family violence provisions.

Resolution of Status visa

Partners of primary applicants for Resolution of Status (subclass 851) visas only, who lodged their application before 9 August 2008. All applicants must also satisfy all other relevant legal requirements, including health and character requirements.

How the family violence provision works

Partner visa applicants

Partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens who apply to live permanently in Australia undergo a two-stage visa application process.

If the applicant's relationship breaks down after they have applied for permanent residence, the applicant can still be considered for permanent residence if they provide acceptable evidence that they or their dependants have been the victim of family violence committed by their Australian partner.

The applicant will also have to satisfy the delegate that their relationship was genuine until it ceased and that the family violence took place during the relationship. There are some variations within the Partner category visas regarding eligibility to access the Family Violence Provisions. The provisions can only be accessed by Partner visa applicants who are already in Australia and by Prospective Marriage visa holders who are already in Australia and have married their sponsor.

A permanent visa may also be granted if your relationship breaks down and you and your partner have custodial rights under the Family Law Act 1975 for any children aged under 18 years that you and your partner may have.

Prospective Marriage visa holders

Some Prospective Marriage visa holders may be eligible to apply for permanent residency under the Family Violence Provisions. If the visa holder married their sponsor before their Prospective Marriage visa ceased and the marriage breaks down, they can still lodge a Partner visa application and seek access to the provisions if they or their dependants have been the victim of family violence committed by the sponsoring partner.

Skilled stream (business) visa classes

The partners of primary applicants for certain business visa classes may be considered for permanent residence if both of the following apply:

  • the married or de facto relationship broke down after the application for the business or skilled visa had been lodged
  • they provide acceptable evidence that they or their dependants have been the victim of family violence committed by the primary applicant.

If the primary applicant is granted permanent residence then the partner may be granted permanent residence at the same time under the Family Violence Provisions.

Definition of relevant family violence

Relevant family violence is defined as:
' conduct, whether actual or threatened, towards:

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

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

Relevant family violence is not limited to physical harm. It may also include other forms of abuse such as psychological and/or financial abuse, which is consistent with the above definition.

Forms of acceptable evidence

For the purposes of the Family Violence Provisions, acceptable evidence may be judicially or non-judicially determined.

Acceptable judicially determined evidence

Any one of the following is acceptable judicially determined evidence:

  • certain court injunctions under the Family Law Act 1975
  • certain court orders against the partner made under an Australian state or territory law
  • evidence that the partner has been convicted (or has recorded a finding of guilt) of an act of violence against the visa applicant or their dependants.

Acceptable non-judicially determined evidence

The requirements to provide non-judicially determined evidence for family violence claims have been streamlined and the new requirements are effective from 24 November 2012.

The minimum evidence required from an applicant who is making their first written claim of family violence on or after 24 November 2012 are the following:

  • a statutory declaration using Form 1410 — Statutory declaration for family violence claim or a generic statutory declaration completed by the alleged family violence victim, which sets out the allegation of family violence and names the person alleged to have committed it
  • at least two documents from the list of evidence specified in the legislative instrument.

Alternatively, evidence of a family violence claim can be in the form of a joint undertaking by the visa applicant and their partner, related to an allegation that is before the court that the partner has committed an act of violence against the visa applicant or their dependants.

Any other evidence, in addition to the minimum requirements outlined above may be provided to the department for consideration. This additional evidence cannot be in place of the minimum evidence that is required.

Instrument IMMI12/116 lists the acceptable forms of evidence that can be provided in support of a non-judicial family violence claim.

Form 1410 — Statutory declaration for family violence claim

For family violence claims first made on or after 24 November 2012, applicants who have suffered family violence may use Form 1410 for the purpose of providing a statutory declaration under the family violence provisions.

Other generic statutory declarations are acceptable as long as the following information is provided:

  • details of the allegation of the relevant family violence
  • name of the person who allegedly committed the relevant family violence

if the relevant family violence was not committed towards the applicant the statutory declaration must also

  • provide the name of the alleged victim
  • identify the relationship between the maker of the statutory declaration and the alleged victim
  • identify the effect the alleged family violence has had on visa applicant.
Agencies, services, professionals and other bodies
 

If evidence (such as a statutory declaration or official letter) is being provided by a professional or other agency as required under the legislative instrument it is expected that such a statement will include detailed information about the family violence claim.

The statement should include the following information:

  • details of the allegation of the relevant family violence
  • the name of the person who allegedly committed the relevant family violence
  • the name of the alleged victim
  • evidence or reasons that have informed this opinion or assessment
  • details about their professional relationship with the alleged victim or their family members and information about any services or support they have offered in relation to the alleged family violence.

Note: There are penalties under both the Statutory Declaration Act 1959 and the Migration Act 1958 for providing false information. 

Persons who first made a family violence claim prior to 24 November 2012.

Where the first family violence claim was made before 24 November 2012, the relevant version of Form 1040, Statutory Declaration relating to family/domestic violence, should be used for the purpose of providing a statutory declaration under the Family Violence Provisions.

See: Form 1040 (07/07) Statutory declaration relating to domestic violence (for partner category visa applications lodged before 15 October 2007); or Form 1040 Statutory declaration relating to family violence (for applications lodged on or after 15 October 2007).

Referral for independent assessment

Where there are reasonable doubts regarding the strength of a non-judicially determined claim of family violence, the department may refer the evidence supporting the claim to an independent expert for assessment. The independent expert will provide an opinion to the department either that family violence has or has not occurred. An independent expert's opinion must be accepted by the department.

The referral of evidence to an independent expert only applies to non–judicially determined claims of family violence. Acceptable judicially determined claims are not referred.

Information regarding a claim of family violence is provided to the independent expert on the understanding it will be treated in confidence.

Help and support for family violence victims

The Beginning a Life in Australia booklet contains useful information for new migrants in Australia, including services and support for people suffering family violence. It is available in a number of languages.

The department is not in a position to provide emergency assistance or social support to victims of family violence. However, family violence victims are encouraged to seek professional assistance.

For general visa-related enquiries

The department's national general enquiries line.

Telephone: 131 881

Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.

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