“I Lost My Identity!”
Migration sometimes means you might have to change your social and family roles completely when adapting to the new social and economic environment. Unfortunately, some changes might be very painful.
“I don’t know whether I am still useful as my wife has a better job and income than I do. Our kids think they know more than me. I feel stressed and frustrated.”-claimed Joda, an Australian immigrant from Russia.
When Australian immigrants have difficulties in adjusting themselves to the new roles either with work or family after migration, the first thing you might notice is that their families have new conflicts.
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 behaviour with the dominant purpose of controlling the other person. The primary impact is fear.
Australian Immigrants in Family Violence
According to a report by Monash University, in 2017, of the annually approved 36,450 provisional partner visa applications made by women, 9,112 were assumed to be suffering from family violence.
Family /Domestic Violence
to temporary visa-holder
Australian law protects the victim of family violence.
But if the victim is a visa-holder and not an Australian citizen or permanent resident, the protections to the victim might be limited.
Generally, the temporary visa-holder who is suffered from family (domestic) violence will have a range of issues, such as:
• physical and mental health,
• accommodation, employment,
• social security,
• Children’s education,
• immigration and visa issues,
• state and federal police involvement, or
• child welfare involvement.
The Legal Steps towards Solving Family Violence
Family violence is a crime in Australia.
Although each case of family violence has its own specific situation, the legal steps in the followings are generally involved:
- Applications for Apprehended Domestic Violence Orders (ADVOs),
- Disputes about children, divorce and dividing property,
- Child support order,
- Children’s Court matters about the care and protection of children,
- Family dispute resolution (mediation to help resolve disputes concerning 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 a visa cancellation for one of the involved individuals,
- Victims’ compensation,
- Representation for defendants in ADVO matters, or
- Representation for defendants in family violence criminal charge matters.
Protections to The Victims in Family Violence
The complexity associated with family violence, makes the victim’s protection likely invoking many laws at once, such as criminal law, child protection or family law, and migration law.
It could be very stressful and confusing for the immigrant victim to manage all the arrange of issues if they do not have help from an experienced professional.
As a psychological result of family violence, victims in family violence are likely to lose self-confidence and the strength to battle on for proper protections. This also requires more than just a legal professional to deliver the needs of victims.
Which Temporary Visa-holders Are Protected from Family Violence in Australia?
To keep a visa is always an issue for immigrants.
You and your family members do not have to stay in a violent relationship to keep a visa in Australia. You may be able to apply for a permanent visa even if your sponsor has withdrawn their sponsorship for your visa.
The “family violence provisions” of the Migration Regulations 1994 allows victims of family violence to apply for a visa if the victim:
- has applied for a Partner (subclass 820/801) visa,
- is in Australia as the holder of Partner (subclass 309) visa,
- holds a prospective marriage visa (subclass 300) and has married their sponsor,
- is the holder of Dependent Child visa (subclass 445) or,
- is the holder of a Distinguished Talent (subclass 858) visa.
How to Keep A Visa for A Victim of Family Violence?
You will need to take either Path A or Path B to prove that you are a victim of family violence if you are a temporary visa holder and want to keep a valid visa in Australia.
Path 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 conviction of assault by your partner against you or your dependant(s)
- a court has recorded a finding of guilty against your partner for assaulting you or your dependant(s).
Path B: If you can’t prove family violence through a court document
You will need to make a statutory declaration about family violence along with one of the following documents:
- Medical report, hospital report, discharge summary, or
- A report, record of assault, or witness statement from a medical practitioner, a police officer, a child welfare authority, a women’s refuge, or a member of the Australian Association of Social Workers.
Can You Prove to be The Victim of Family Violence?
If family violence is proven
If family violence is shown, and the Department of Immigration is satisfied that the relationship was genuine before the breakdown, the applicant will be granted a permanent visa. Spouse visa applicants will be granted a permanent visa even if it has not been two years since the temporary spouse visa application was lodged.
Secondary applicants in business / employer-nominated visas can only be granted a permanent visa if the primary 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 sufficiently demonstrates that there was domestic violence, then they can refer the case to Centrelink for an 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 a 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.
Often the victims who suffer from family violence are depressed, traumatised and isolated.
If you are finding it difficult to battle over family violence, especially as a new immigrant in Australia, Then refer to the Ultimate Guide for Immigrants to Solving Family Conflicts for the essential guidance.