Partner visas for victims of family violence

If you have suffered family violence at the hands of your sponsor and your relationship has broken down, you can still be granted a permanent partner visa under what I will call the family violence related criteria. Family violence is defined very broadly as conduct, whether actual or threatened, that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety. The conduct itself can be directed towards the partner visa applicant, a member of the partner visa applicant’s family unit, a member of the sponsor’s family unit or the property of any of those people. Family unit is relevantly defined as your spouse/partner and your children. There is no requirement for actual physical violence, anything that makes you worry about your wellbeing or safety will suffice.

To meet the requirements of the family violence related criteria, the family violence must have occurred, at least in part, prior to the end of your relationship. In the case of offshore applicants, the family violence has to have occurred while you were in a relationship with your sponsor and after you entered Australia on a prospective marriage (subclass 300) visa or temporary partner (subclass 309) visa. In the case of onshore applicants, the family violence has to have occurred while you were in a relationship with your sponsor and after you applied for the temporary partner (subclass 820) visa.

You can establish that there has been family violence in 2 main ways. The first way is to make a claim of judicially determined family violence which requires that a Court has in some way made a determination that you suffered family violence from the sponsor. This in turn can come in different forms, such as an injunction by the Family Court, a violence restraining order and criminal convictions for family violence offences. You can make a claim of judicially determined family violence by providing the Department with a copy of the relevant Court order. The Department will then accept without further inquiry that you have suffered family violence.

The second way is to make a claim of non-judicially determined family violence. This is much more difficult. In order to establish a claim of non-judicially determined family violence you need to submit to the Department evidence which is prescribed by the Migration Regulations 1994. If you do not submit the right evidence, then you cannot get the visa - it is a very strict and inflexible requirement. All applicants for non-judicially determined family violence have to submit a statutory declaration which sets out the family violence claims and names the perpetrator of the family violence (there are additional requirements if it is not the partner visa applicant who is the alleged victim). The applicants will then also have to submit 2 pieces of evidence set out in a legislative instrument. I have deliberately not gone into any further detail due to the complexity of the requirements and the risk that they may change - however, I am always happy to provide victims of family violence with this information free of charge and would be happy to take a call which can be booked here.