Have you applied for a partner visa but are now facing domestic violence? We are sorry that you are going through this. There is light at the end of the tunnel at least in terms of your visa; you may still receive a grant of your visa even though the relationship has broken down. It isn’t necessary either that the relationship has broken down due to family violence.
The visas in which these special provisions apply to are:
- Partner visa (subclass 100)
- Partner visa (subclass 820)
- Partner visa (subclass 801)
Family violence
Family violence as defined by the Department of Home Affairs (DOHA) is conduct, whether actual or threatened, towards the alleged victim or property of the alleged victim that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about his or her own wellbeing or safety.Violence does not only relate to physical harm but may include psychological and financial abuse. Family violence must have occurred whilst the relationship existed.
Relationship requirements
What are the conditions in which one may still be eligible for their visa? It differs slightly based on the subclass of visa applied for. The alleged victim that qualifies for each subclass are as follows.
Partner visa (subclass 100)
- The main visa applicant
- A member of the sponsor’s family unit
- A member of the applicant’s family unit that was included in the application, be it the partner or dependent child
Under this visa, family violence must have occured after the applicant entered Australia as a Partner visa (subclass 309) holder.
Partner visa (subclass 820) if the applicant held/holds a Prospective Marriage visa (subclass 300)
- The main visa applicant
- A dependent child of the applicant and/or the sponsor
In such a situation, a Partner 820 visa application made be made after the relationship has broken down if the Prospective Marriage 300 visa holder suffered family violence whilst in the relationship and married their sponsor.
Partner visa (subclass 820) if the applicant never held a Prospective Marriage visa (subclass 300)
- The main visa applicant
- A dependent child of the applicant and/or the sponsor
In this situation, the relationship must have existed when applying for the Partner 820 visa.
Partner visa (subclass 801)
- The main visa applicant
- A dependent child of the applicant and/or the sponsor
Read: When Is A Child Considered Dependent?
Given the above requirements, the DOHA will take into consideration:
- The date which the DOHA was advised that the relationship commenced and ceased, including the date of the withdrawal of sponsorship
- Previous advice from either the applicant or sponsor that the relationship had broken down
- Advice about separation/divorce proceedings
- If the relationship was genuine and continuing until it ceased
As relationships are not 1+1=2 and it can be difficult to put a stamp on a specific date on which the relationship concluded, the DOHA will consider information such as when a couple ceased living together, if others were notified of the end of the relationship or of the separating of financial affairs.
Material evidence
You will of course, need to provide evidence to the DOHA. There are two types of evidence – non-judicially determined claims of family violence and judicially determined evidence.
Non judicially determined claims of family violence
A statutory declaration has to:
- Be in English
- Must be made by the applicant, whether or not the applicant is the alleged victim
- The statutory declaration and any attachments must be signed by the maker of the statutory declaration and witnessed by a person authorised to witness statutory declarations and
- The statutory declaration and any attachments must be must be signed by the witness on all pages
- Identify the alleged perpetrator and the alleged victim
- Identify all the relationships between the alleged perpetrator (abusive partner) and applicant and alleged victim, if the alleged victim is not the applicant
- Details of the family violence that has occurred
Alongside a statutory declaration, at least two other documents (but more can be submitted) form the following must be provided:
- Medical or hospital report or statutory declaration issued by registered medical practitioners, including psychiatrists and nurses that relates to physical injuries or treatment for mental illness that is associated with family violence
- A report or record of assault, witness statement of statutory declaration by an Australian Federal Police (AFP), State or Territory police officer
- A witness statement made by a person other than the victim to a police office during the course of a police investigation
- A report or statutory declaration made by an office of a child welfare authority or child protection authority of a State or Territory that details the fear of a dependent child’s safety
- A letter or assessment report made by a women’s refuge or a family or domestic violence crisis centre that has been made on their organisation’s letterhead (Migrant Resource Centres not accepted)
- Statutory declaration made by a member of the Australian Association of Social Workers or a person who is eligible to be a member of that association who has provided counselling or assistance to the alleged victim while performing the duties of a social worker
- Statutory declaration made by a registered psychologist in a State/Territory who has treated the alleged victim while performing the duties of a psychologist
- Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre that is listed on the Australian Government Family Relationships website
- Statutory declaration or letter made by a school counsellor or school principal on the school’s letterhead
The DOHA will give weight to evidence that comes from official and credible sources over letters and testimonies from friends and relatives.
Judicially determined
Judicially determined family violence includes:
- A court injunction
- An Australian court order
- A conviction or finding of guilt against the alleged perpetrator in respect of the alleged victim
Court orders that are confirmed are naturally accepted. Interim court orders are only accepted if the alleged perpetrator has been given an opportunity by the court to respond to the allegations made against them and these claims have been tested by the court.
Judicially determined claims can be submitted after non-judicially determined claims are submitted. Judicially determined claims have more sway than non-judicially determined claims.
Watch out for our next article
In our next article we will explore:
- Insufficient evidence
- Conflicting evidence
- Referral to an independent expert (where the DOHA is not satisfied with the evidence provided)
