CW: This article contains discussions of domestic violence including physical violence and sexual violence.
If you have an ongoing partner visa application but are no longer in a relationship with your sponsor due to family violence, you may be able to be considered for the family violence provisions.
A partner visa to Australia is granted in two stages:
- The applicant is issued a temporary two-year visa if the initial partner visa application is approved; and
- Two years from the date of lodgement of the partner visa application, the applicant is eligible for the permanent visa. The applicant must prove that the relationship is ongoing before the Department can grant a permanent partner visa.
The grant of a temporary and permanent partner visa depends on the applicant showing a genuine and ongoing relationship. Therefore, visa applicant relies on the Australian sponsor for their visa status.
If the relationship breaks down before a permanent partner visa is granted. The Australian partner is required to advise the Department that the applicant is no longer eligible for the visa grant.
As a result, the sponsoring partner substantially influences the visa applicant’s future in Australia.
We understand that this power imbalance can be psychologically detrimental, especially in abusive relationships.
Fortunately, if the relationship ends before you are granted permanent residency, you may still be able to get a permanent visa if you can prove that:
- you have experienced family violence during the relationship; or
- there is a child in the relationship, and both parents have ongoing responsibilities for the child; or
- the sponsoring partner dies.
FAMILY VIOLENCE AND YOUR ONGOING PARTNER VISA APPLICATION
Family violence is a crime in Australia.
A partner or family members cannot threaten your visa status, and you do not have to stay in an abusive relationship to remain in Australia.
If you have an ongoing partner visa application but are no longer in a relationship with your sponsor due to family violence, you may be able to be considered for the family violence provisions.
The family violence provisions are available to you if you have applied for a:
- Temporary Partner visa (subclass 820)
- Provisional Partner visa (subclass 309)
- Dependent Child (subclass 445), where the visa holding parent has applied under the family violence provisions
- Distinguished Talent (subclass 858), where you are the secondary applicant and your partner (who is the primary applicant) has been granted their permanent visa
The family violence provisions are also available to you if you hold a:
- Temporary Partner visa (subclass 820); or
- Provisional Partner visa (subclass 309) and entered Australia on this visa; or
- Provisional Partner visa (subclass 309), which was granted while you were in Australia, under a COVID-19 visa concession; or
- Prospective Marriage visa (subclass 300) and have entered Australia and married your sponsor (you will need to apply for a Temporary Partner visa).
WHAT IS FAMILY VIOLENCE?
Both men and women can claim family violence. However, the domestic violence (or part of it) must have been perpetrated by your sponsor during the relationship.
Generally, family violence is conduct, actual or threatening, towards:
- you; or
- a member of your family; or
- a member of your sponsor’s family; or
- your property; or
- the property of a member of your family; or
- the property of a member of your sponsoring family
that causes you to reasonably fear or be apprehensive about your wellbeing and safety.
The table below (extracted from the Department’s website) provides examples of violence and abuse, but it is not an exhaustive list.
| Type | Description | This can include: |
| Physical abuse | Physical violence is any violent behaviour or threats of violence. It can be directed at you, your children, other family, friends, pets or property. | · hitting, punching, hair pulling, choking, pinching, pushing, stabbing or restraining you in any way (physical injuries are often directed at parts of the body that cannot be seen by other people) · using weapons to frighten you · causing damage to property · not letting you sleep, eat, or take your medication |
| Sexual abuse | Sexual abuse is unwanted sexual activity. | · forcing you to have intercourse when you do not want to (either with your partner or other people) · making you engage in sexual practices or acts you are not comfortable with (either with your partner or other people) · making you wear clothes you are not comfortable with · making you watch sexual acts you do not want to |
| Verbal abuse or emotional abuse | Emotional abuse is any behaviour that makes you feel worthless and put down. | · threatening your life, or that of your family or pets · calling you abusive or insulting names or names that are culturally offensive · harassing or threatening you · saying things to frighten you, for example telling you that the children will live with him/her if you leave · undermining you as a parent in front of the children · threatening you with respect to immigration status or deportation |
| Social abuse | Social abuse is behaviour that aims to cut you off from your family, friends, or community. | · insulting you in public and in front of community members · not letting you attend community events · not letting you use community organisations, programs and/or services · putting you down in front of others · lying to others about you · isolating you from your community and family · isolating you from those people who do support you · not letting you visit a doctor on your own · controlling your life; not letting you have a life outside the home |
| Financial abuse | Financial abuse is behaviour limiting your access to money. | · controlling the money, so you are dependent on them · forcing you to sign for loans or contracts · questioning you about purchases you make or where you spend your money · only giving you money for purchases they agree to or requiring receipts or proof of purchases for items · using joint finances for personal use against your wishes or without your knowledge · incurring debts which you are also responsible for · incurring fines in your name – including speeding, toll roads, parking fines and so forth · not allowing you to work so you cannot have an income |
PROCESS TO TAKE IF YOUR RELATIONSHIP BREAKS DOWN DUE TO FAMILY VIOLENCE
- Notify the Department (but it is best to get legal advice first).
- You can do this using the “notification of relationship cessation form” in the “Update Details” tab in your ImmiAccount.
- If you do not have access to ImmiAccount, you can let the Department know by completing the Permanent (Partner) Processing Enquiry Form.
- Rest assured that when you notify the Department of family violence, departmental officers cannot interview the alleged perpetrator to protect your safety.
- The Department will likely ask you to provide evidence about your relationship via email. You should gather documents to prove that you were in a genuine ongoing relationship with your prior sponsor before your relationship ceases.
- The Department will then check and assess the genuineness of your relationship and the family violence.
EVIDENCE YOU SHOULD PROVIDE – GENUINENESS OF RELATIONSHIP
Assessment of your relationship is the first stage of a family violence application.
The Department will assess all aspects of the relationship, including social and financial aspects.
To prove the genuineness of your relationship, you should give the Department evidence of the following:
- Financial aspects of your relationship, including household bills, joint bank account statements, loan documents, rent, any joint purchases, etc
- Nature of household aspect, which includes a statement about how you shared housework, household bills in both names, mail or emails addressed to you both, documents that show joint responsibility for children, documents that prove your living arrangements
- Social aspects of your relationship, including proof of friends in common, proof you travelled and attended social events together, etc
- Your commitment to each other, including proof of day-to-day communication, knowledge of each other’s personal details, terms of your Wills, etc
If the Department is not satisfied that the relationship was ever genuine, they will refuse the visa application without making a finding on the family violence.
If the Department is satisfied that your relationship is genuine, they will proceed to the next stage, assessing your family violence claims.
EVIDENCE YOU SHOULD PROVIDE – FAMILY VIOLENCE
This can be done by ‘judicial evidence’ or ‘non-judicial evidence’ to prove family violence.
Judicial Evidence
Judicial evidence includes a record of a Domestic Violence Protection Order against your former sponsor/partner, a criminal violence conviction, etc
Non-judicial evidence
Non-judicial evidence is a statutory declaration from you using Form 1410 and two pieces of evidence from two different professionals.
Please refer to the table below for examples of the types of evidence from the two professionals
[Insert table]
If you have provided non-judicial evidence of your family violence and if the Department is not satisfied that there was family violence in your relationship, the Department will refer your case to an “Independent Expert” for assessment.
The Department will provide the independent expert with all the information you have provided them. The independent expert will then contact you to arrange a time for an interview.
If the independent expert determines that you did not experience family violence, the Department will provide you with an opportunity to comment on this.
If the independent expert has assessed that you experienced family violence during your relationship with the sponsor, the Department will continue processing your application. They generally will then ask you to complete health and police checks.
Family or domestic violence is a complex issue and problem. Talk to us at Migration Affairs and find out how we can assist you.
1800 RESPECT is a free service that provides online chat or telephone support to people experiencing family violence. The service is confidential and available 24/7.
