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Family Violence and Australian Partner Visas

Potts Lawyers > Uncategorised  > Family Violence and Australian Partner Visas

Family Violence and Australian Partner Visas

1000 Partner visa application approvals each week and a very common problem

According to statistics published by the Department of Home Affairs, in the 2019 to 2020 financial year, 52,479 Australian Partner visa applications were lodged. That is about 1000 applications each week. 96,361 applications were in the pipeline at the end of June 2020, awaiting processing.

An article in the Medical Journal of Australia[1] explains that it is difficult to specify the incidence rate of family violence. The incidence rates depends upon the definition used; and whether the data comes from community crime victim surveys, community samples, or prevalence studies in clinical samples. The report states very simply:  It is now accepted that domestic violence is very common in Australia.

The problem is described as a complex pattern of behaviours that may include (in addition to physical acts of violence) sexual abuse and emotional abuse.

How many of the roughly 1000 Partner visa applicants per week will experience family violence at the hands of their Australian sponsors while awaiting the outcome of their visa application? We could not find reliable statistics. Even a low percentage adds up to a lot of people.

If a person is a Partner visa applicant experiencing family violence, they can feel trapped. They will feel concern about what will happen to their visa and wonder if they will be forced to leave Australia. They can feel depressed and anguish if their partner threatens to withdraw their sponsorship unless they capitulate and conform to demands. In addition to the suffering that an Australian citizen or permanent resident would experience in an abusive relationship, a Partner visa applicant will feel additional stress and concern relating to their immigration status.

If you or someone you know is a Partner visa applicant and in this sort of situation, please contact Potts Lawyers. We know how to help.

This article considers the family violence provisions in the Australian immigration legislation. The family violence laws differ from domestic violence provisions in other areas of law. We begin with the definition of relevant family violence in the Migration Regulations 1994. We then discuss the requirements that a Partner visa applicant would need to establish a legitimate claim of family violence. We explain the requirement to establish that the relationship was genuine and ongoing prior to break up. The family violence must have occurred during the course of the relationship (before the relationship ended). The different requirements of making judicially determined claims and non-judicially determined claims are then explained. The role of the Independent Expert is described. We conclude by stating what happens if a successful claim is made out – and what happens if it isn’t!

This article considers the point of view of a Partner visa applicant that is experiencing family violence by their Australian sponsor. The information provided here is general in nature. The laws are technical and complex. Partner visa applicants experiencing family violence should contact us for legal advice specific to their particular circumstances. We provide initial consultations at no cost. 

The definition of relevant family violence in the Migration Regulations 1994

Division 1.5 of the Migration Regulations provides for the Special provisions related to family violence. That part of the law explains the requirements for making out a successful claim of family violence. It begins with definitions.

A mere claim that a relationship has broken down and that the victim has experienced family violence is not sufficient to make a successful claim of family violence. The alleged victim will need to prove that family violence has occurred and that the situation meets the definition of relevant family violence.

Paraphrased, relevant family violence occurs when conduct, whether actual or threatened, causes the alleged victim (or one of their family members) to reasonably fear for, or to be reasonably apprehensive about, their wellbeing or safety.

There is no requirement that the relationship broke down because of family violence.

The first requirement that a Partner visa applicant would need to establish

Let’s assume that a Partner visa applicant feels apprehensive about their wellbeing because of conduct by their sponsor. What do they need to do first?

Before an assessment of the claims made under the family violence provisions, the decision maker must first assess whether the couple were in a genuine and continuing partner relationship up until the relationship ceased. That means that the visa applicant will need to establish that the relationship met the section 5F (spouse) or the section 5CB (de facto partner) definition in the Migration Act 1958 prior to the end of the relationship.

The family violence must have occurred while the relationship existed.

The visa processing officer has the right to interview the visa applicant to access the legitimacy of the relationship.

After the visa processing officer has determined that the relationship was not contrived but an authentic relationship that was genuine and continuing up until the point of the breakdown, the assessment of family violence can begin.

Judicially determined claims and non-judicially determined claims

The visa applicant can make out two different types of family violence claims: judicially determined claims and non-judicially determined claims.

Judicially determined family violence claims

Judicially determined claims are easier for the visa applicant to substantiate. A Court will have had the opportunity to consider the merits of a claim and determine whether family violence has occurred. The alleged perpetrator will have had their opportunity to put forth their case and respond to allegations.

The departmental decision maker will check the veracity of the court documents, which include Court Orders; a Court Injunction under the Family Law Act; or a conviction or finding of guilt against the alleged perpetrator. Some Court Orders are not accepted. Examples include bail orders, and orders made ex parte.

It would be possible for a victim to begin the process using a non-judicially determined claim and later switch to judicially determined claim. If that happens, the judicially determined claim would take precedence.

Non-judicially determined family violence claim – Joint Undertaking

The process for making a non-judicially determined claim is more complicated and the explanation provided here is simplified. There are two different methods of establishing a family violence claim under this category. One method involves making a joint undertaking before a Court. The alleged perpetrator and the alleged victim engage in proceedings before the Court that the perpetrator has committed an act of violence against the victim.

Joint undertakings do not involve a ‘finding’ on family violence by a magistrate or judge based on contested evidence. They are merely court-sanctioned agreements by parties to act in certain ways.

States and Territories have different rules about how joint undertakings are accepted. The decision maker will need to ensure that the undertaking has been made to a Court in the manner required by that State or Territory.

In most cases where a properly made joint undertaking has been submitted, there would be no reason for a decision maker to doubt the version of events described in it. It is, however, open to officers to refer a case where a joint undertaking that conforms to the Court’s rules has been presented if, after considering all relevant evidence, they are not satisfied that the person can be taken to be the victim of family violence.

Non-judicially determined family violence claim – Statutory Declaration with Prescribed Documents

Statutory declaration

The other method of establishing a family violence claim under this category requires the submission of a statutory declaration and prescribed documents. The victim will need to make a statutory declaration that meets precise requirements.

The statutory declaration from the victim must include an allegation of family violence that meets the definition of relevant family violence as defined in the Migration Regulations 1994. Relevant family violence is not limited to physical harm. It also includes other forms of abuse such as psychological and financial abuse, consistent with the definition in the legislation.

Prescribed documents

In addition to the statutory declaration, the visa applicant will also need to provide at least two documents that are prescribed in a legislative instrument. The prescribed documents must come from different fields, but only one of each type can be submitted.

There are eight different categories that are suitable for the prescribed documents. A medical practitioner or a registered nurse can make a medical report, hospital report, discharge summary, or a statutory declaration. A Police Officer could provide a report, a record of assault, a witness statement, or a statutory declaration. A Women’s Refuge or a Family/ Domestic Violence Crisis Centre can make a letter or assessment report on their letterhead. A member of the Australian Association of Social Workers (or a person that meets the membership requirements) who has provided counselling or assistance to the victim can make a statutory declaration. A registered psychologist who has treated the victim can make a statutory declaration. A Family Relationship Counsellor or a Family Consultant appointed under the Family Law Act can make a statutory declaration. If the family violence includes children, then a report by an officer of a child welfare authority can be used. A statutory declaration or a letter on school letterhead made by a school counsellor or school principal in their professional capacity is also suitable.

Some evidence carries more weight than others

If a letter or statutory declaration expressing an opinion that family violence has occurred has been provided by a professional, officers take into consideration the history of the treatment in determining how much weight to attribute to such an opinion. A psychologist or social worker who has been treating an alleged victim over an extended period may have a stronger understanding of the situation. Similarly, a family relationship counsellor who jointly counselled a couple may have a more complete picture of the alleged family violence.

If there is evidence that a professional, like in the examples above, has an extensive and intimate knowledge of the relationship, the letters or statutory declarations may be given significant weight.

Evidence from an expert in matters of family violence should be given significant weight.

Other evidence including testimonials from friends may also be submitted (but only if the threshold requirements are met). Evidence by objective, official, and credible sources will be given more weight than more subjective forms of evidence such as letters and testimonies from friends and relatives.

Officers should consider whether the evidence provided conflicts with any other relevant information.

Referral to an Independent Expert

If the decision maker is satisfied that threshold requirements are met but not satisfied that the claim of family violence has been established, they will refer the claim to an Independent Expert. Independent experts are properly qualified people employed by LSC Psychology (the agency specified by legislative instrument for the purpose of assessing family violence claims).

If the decision maker sends a file to an Independent Expert for assessment and they determine that family violence has not occurred, they will provide the visa applicant the opportunity to comment on any adverse information that was relevant to their decision. If, after giving the opportunity to comment, the Independent Expert is still not satisfied that sufficient evidence has been provided to satisfy the definition of relevant family violence, they will send the department their finding. The department will consider this “adverse information” and give another chance to comment. If a response is received within the prescribed period, the officer must determine whether the new information includes a recent change in circumstances or any other information that has not already been provided to the department that may be relevant. The will then pass the new information to the Independent Expert for further consideration.

The consequences of making a successful (or unsuccessful) family violence claim

If a claim of family violence is successfully made out, the decision maker will continue assessing the Partner visa application against the other eligibility criteria. They will (for example) ask the applicant to take medical assessments and to provide police clearances.

Ultimately a decision will be made whether the visa applicant has made out a successful claim of family violence and also meets the other criteria for grant of the visa. If the decision maker comes to that conclusion, the application will be approved. The applicant will become an Australian permanent resident.

If on the other hand, the family violence claim is unsuccessful, a review of the application with the Administrative Appeals Tribunal may be lodged. The Tribunal Member will review the decision and consider all the information put before it. They will make a fresh decision on the information they have in front of them. They have the ability to overturn the decision made by the Family Violence processing unit and remit the application back to the Department of Home Affairs for continued processing.

Conclusion

That family violence is a common problem in Australian is beyond dispute. Partner visa applicants experiencing family violence suffer not only from the consequences of the family violence but also feel additional pressure and concern about their immigration status.

A Partner visa applicant experiencing a relationship breakdown and family violence would first need to establish that they were in a genuine and continue relationship before the breakdown. They need to prove that family violence occurred while the relationship was in place.

A decision must be made whether to rely upon judicially determined family violence provisions or non-judicially determined family violence provisions. If they go to Court, the visa processing officer can rely upon the assessment made by the judge. If they choose to provide evidence of non-judicially determined family violence, they will need to decide whether to provide evidence of making a joint undertaking, or whether they will provide a statutory declaration and prescribed documents. Non-judicially determined claims might be further assessed by an Independent Expert.

The legislation and policy covered in this post aim to simplify very complex immigration law provisions. The information provided here should be considered general advice and not immigration assistance or immigration advice.

If you or someone you know is an Australian Partner Visa applicant that is experiencing family violence, please ask them to discuss their circumstances with us so that we can provide further and customised advice. Contact Craig DoRozario (Director and Immigration Lawyer) or Tom Foran (Immigration Lawyer) from Potts Lawyers for assistance.

[1]  https://www.mja.com.au/journal/2000/173/7/domestic-violence-australia-definition-prevalence-and-nature-presentation published online 4 November 2020.

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