When relationship goes bad, unfortunately sometimes the violence could be involved. Victim of family violence can have the right protection under Australian law, but if family violence against a visa holder not an Australian, the protections to the victim are limited to a few visa holders.
What is family violence?
Family violence occurs when one person tries to dominate and control another person in a family-like or domestic relationship. Family violence involves an abuse of power and can take the form of:
- physical violence;
- sexual abuse;
- emotional or psychological abuse;
- verbal abuse;
- stalking and intimidation;
- social and geographic isolation;
- financial abuse;
- cruelty to pets;
- damage to property; or
- threats to be violent in these ways.
Family violence usually features a repeating pattern of behavior with the dominant purpose of controlling the other person. The major impact is fear.
Family (Domestic) Violence
against a visa holder
Issues associated with immigrant family violence
The victims suffered from family (domestic) violence often have a range of issues, such as:
- physical and mental health;
- accommodation, employment;
- social security;
- their children’s education;
- immigration and visa status;
- state and federal police involvement; or
- child welfare involvement.
It is always depressing when you are facing family violence. In most of case, a victim of family violence likely being losing the self-confidence and strength to battle on with the complicated legal issues as psychological results of family violence.
The nature of complexity associated with family violence, it most likely invokes criminal law, child protection or family law, migration law all at once. It could be very stressful and complicated for the victim to deal with all the issues without the help of an experienced professional.
Legal steps in dealing with immigrant family violence
- Applications for Apprehended Domestic Violence Orders (ADVOs);
- Disputes about children, divorce and dividing property;
- Child support;
- Children’s Court matters about the care and protection of children;
- Family dispute resolution (mediation to help resolve disputes about children);
- Financial problems such as paying the mortgage, credit and debt, and housing;
- Visa and immigration issues where the marriage or relationship has broken down could cause the visa cancellation for victim;
- Victims’ compensation;
- Representation for defendants in ADVO matters; or
- Representation for defendants in family violence criminal charge matters.
Family violence against visa holder
According to a report by Monash University, out of 36,450 annually approved temporary partner visa applications made by women in 2017, 9,112 are assumed to be suffering from family violence.
You and your family don’t have to stay in a violent relationship in order to keep a visa in Australia. You may be able to apply a permanent visa even your sponsor has withdrawn their sponsorship for your visa.
Who can apply for the visa in family violence?
The “family violence provisions” of the Migration Regulations allows the following victim of family violence to apply for a visa, if the victim:
- have applied for a Partner (subclass 820/801) visa or;
- are in Australia as the holder of Partner (subclass 309) visa; or
- hold a prospective marriage visa (subclass 300) and have married your sponsor.
- are the holder of Dependent Child visa (subclass 445), or;
- are the holder of Distinguished Talent (subclass 858) visa.
How to prove that family violence happened to you?
A. Provide one of the following from an Australian Court:
- a court injunction under the Family Law Act 1975 against your partner
- a court order against your partner made under a state or territory law
- a court has convicted your partner of assault against you or your dependant(s)
- a court has recorded a finding of guilt against your partner of assaulting you or your dependant(s).
B. If you can’t prove family violence by a court document
You will need to make a statutory declaration about the family violence along with the following one of the documents:
- Medical report, hospital report, discharge summary; or
- Either a report, record of assault, witness statement from a medical practitioner, a police officer, a child welfare authority, a women’s refuge, a member of the Australian Association of Social Workers.
If family violence is proven
If domestic violence is proven, and the Department of Immigration is satisfied that the relationship was genuine prior to the breakdown, the applicant will be granted a permanent visa. Spouse visa applicants will be granted the permanent visa even if it has not been two years since the temporary spouse visa application was made.
Secondary applicants in business / employer-nominated visas can only be granted a permanent visa if the main applicant is granted a permanent visa.
If family violence is not adequately proven
If the case officer from the Department of Immigration is not satisfied that the evidence provided adequately demonstrates that there was domestic violence, then they can refer the case to Centrelink for independent assessment.
The assessment made by Centrelink is final and binding on the case officer. Therefore if Centrelink determines that domestic violence has not occurred the case officer must accept this decision.
If you are refused a visa after family violence
If the Department of Immigration rejects your application to remain in Australia, you are most likely eligible to seek review of that decision at the Administrative Appeals Tribunal (AAT) or Federal Circuit Court (FCC).
Strict time limits apply for lodging AAT or FCC appeal, so you should make sure you obtain legal advice from the lawyer specialised in migration law.
Family violence for immigrants is likely involved with criminal law, child protection or family law, migration law and financial stress. It takes a great amount of strength and confidence to end the bad situation.