Family Violence provisions of Australia’s Partner visa

The Partner visa is an important visa in the Migration Program. Not only is it the biggest visa in the Family Migration Program, but it is also one of the largest visas issued.

A partner visa allows the partner or spouse of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen to live in Australia.

Partner visa applications are a 2-stage process; in applying for a Partner visa, the candidate will be applying for a Provisional and Permanent visa concurrently. This is known as a “combined” visa application.

• Offshore application: Partner Visa (Provisional) (Subclass 309) & Partner Visa (Migrant) (Subclass 100)
• Onshore application: Partner (Temporary) Visa (Subclass 820) & Partner (Residence) Visa (Subclass 801)

But what happens when a relationship terminates, and the visa is still under processing?

There will be instances when a relationship ceases, or it terminates. When this occurs, and the visa holder is on a provisional visa (Subclass 820 or 309), the reason for being in Australia to be with the partner is no longer there.  When this occurs, the department may cancel the Provisional visa. The visa holder will then have to either apply for another visa or leave Australia.

However, in certain circumstances, the law permits the visa holder to remain in Australia if:

• the sponsoring partner has died.
• there is a child or children from the relationship, & the Family Court provides the visa holder shared access, or
• there is domestic violence perpetrated against the visa holder.

The Family Violence provisions are additional grounds under the Migration Act and Regulations that allow a partner to apply for a visa on the basis of experiencing family violence.

Family violence can cover a range of behaviours including physical, sexual, emotional, psychological, or economic abuse. Family violence provisions apply to all partner visas, regardless of whether the relationship is married or de facto and whether the applicant is in Australia or overseas.

Permanent Residence based on Family Violence

To obtain permanent residency in Australia based on family violence, visa applicants must demonstrate that they:

• had a genuine, committed, and continuing married or de facto relationship, before its breakdown.
• experienced family violence during the relationship.

Additionally, visa applicants must pass both health and character checks before the visa is granted.

Break Down of the Relationship

If the relationship breaks down before the visa applicant obtains permanent residency, the standard process to follow is:

• Notify the Department of the change in circumstances. It is recommended to seek legal advice first.
• The Department will contact the applicant.
• Upon submission of the relevant claims, the Department will assess the genuineness of the relationship. If satisfied, the Department will then assess if there was any family violence.

Genuine Relationship

To prove a genuine relationship, DHA will consider all aspects of the relationship, including financial and social aspects, the nature of the household, and the commitment to each other.

Proving Family Violence

Proving family violence can be complex and requires migration legal advice. In migration law, family violence is defined as actual or threatened conduct that causes fear for one’s safety or well-being.

Family violence can be proved through:

• Judicial evidence, such as a Domestic Violence Protection Order or a criminal violence conviction or,
• Non-judicial evidence, such as two reports from family violence professionals and a statutory declaration from the applicant or a joint court undertaking between the applicant and sponsor regarding an allegation of violence against the sponsor.