Securing an Australian Partner Visa is a significant milestone for many couples wishing to establish their lives together in Australia. However, relationships do not always proceed as planned, and in some cases, they may end due to unfortunate circumstances such as family violence.
The Australian government recognises these situations and has provisions in place to support victims of family violence, ensuring they are not forced to remain in abusive relationships to retain their visa status. This article outlines the process and protections available for those whose relationships have ceased due to family violence.
Kris Ahn, the founder and principal lawyer at Kris Ahn Lawyers and an Accredited Specialist Immigration Lawyer, offers a comprehensive look at this case.
Domestic and family violence and your visa
Understanding the Family Violence Provisions
The Department of Home Affairs provides specific provisions under the Migration Regulations 1994 for visa applicants experiencing family violence. These provisions are designed to protect individuals who are suffering from family violence and ensure that they can still be eligible for permanent residency despite the cessation of their relationship with their sponsor.
Who is Eligible?
The family violence provisions apply to:
- Applicants for a Partner Visa (subclass 820/801 or 309/100).
- Applicants for a Distinguished Talent Visa (subclass 858) who were granted this visa based on their relationship.
- Secondary applicants on certain skilled or temporary work visas.
To qualify, the family violence must have occurred while the relationship was still ongoing and before the visa decision was finalised. The applicant must provide evidence to support their claim of family violence.
Domestic and family violence and your visa
Steps to Apply Under Family Violence Provisions
1. Understanding and Gathering Evidence
Evidence is a critical component in these applications.
Relationship Evidence
Before the Department assesses the claims of family violence, they must be satisfied that you and your sponsoring partner were in a genuine relationship when the family violence took place.
Therefore, proving that you were in a genuine and ongoing de facto or married relationship until you separated from your sponsoring partner is essential.
Evidence of Family Violence
The evidence can be judicial or non-judicial.
- Judicial Evidence: This includes court orders, police reports, and affidavits from legal professionals.
- Non-Judicial Evidence: This encompasses statutory declarations from family, friends, or community leaders, as well as medical reports and documents from domestic violence organisations.
2. Submitting Your Claim
When submitting your claim, it is essential to document the family violence experienced and provide all supporting evidence. The process typically involves:
- Notifying the Department: Inform the Department of Home Affairs about the cessation of the relationship due to family violence.
- Completing the Statutory Declaration: Fill out Form 1410 – Statutory declaration for family violence claims.
- Submitting Judicial and Non-Judicial Evidence: Attach all relevant evidence to support the claim.
3. Assessment by the Department
The Department of Home Affairs will assess the provided evidence to determine the credibility of the family violence claims. They may consult with external experts, such as the Independent Expert Panel, for a professional opinion on the case.
Domestic and family violence and your visa
The Importance of Support Services
Experiencing family violence can be traumatic and isolating. Victims must seek support from relevant services, including:
- Domestic Violence Helplines: Provide immediate assistance and advice.
- Legal Aid Services: Offer legal advice and help with gathering evidence.
- Counseling Services: Support mental health and well-being during this challenging time.
Rights and Responsibilities
While the family violence provisions are there to protect victims, applicants must be honest and provide truthful evidence. Providing false or misleading information can have serious legal consequences and affect the outcome of a visa application.
Rights
- Safety and Protection: The Australian government prioritises the safety of individuals over their visa status.
- Continued Visa Processing: Victims of family violence can continue their visa application process independently of their sponsor.
Responsibilities
- Truthfulness: Providing accurate and honest information is crucial.
- Timeliness: Submitting claims and evidence promptly is essential for a smooth process.
Common Misconceptions
Several misconceptions surround the family violence provisions in the context of partner visas:
1. Myth: Claims of family violence will always be believed without question.
- Reality: While the government takes these claims seriously, each claim is thoroughly assessed based on the provided evidence.
2. Myth: You can only apply for a partner visa if the relationship is ongoing.
- Reality: The family violence provisions allow individuals to continue their visa applications even if the relationship has ended due to family violence.
3. Myth: Providing non-judicial evidence is not enough.
- Reality: Non-judicial evidence is also considered valid when comprehensive and corroborated by credible sources.
Conclusion
Navigating the Australian Partner Visa process under the cloud of family violence can be daunting. However, the family violence provisions are a testament to Australia’s commitment to protecting the rights and safety of individuals facing such circumstances. By understanding the eligibility criteria, gathering substantial evidence, and seeking support from relevant services, victims can pursue their right to live safely in Australia without the threat of visa cancellation. For more detailed information, it is recommended that victims visit the official Department of Home Affairs website.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.
Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
