by Linda Geronimo Santos
DOMESTIC VIOLENCE AND IMMIGRATION APPLICATIONS SOME RECENT CHANGES
1. Who can access Family Violence provisions?
Partners of Australian citizens or Australian permanent residents and eligible New Zealand residents who apply to live permanently in Australia undergo a two-stage application process; stage 1 is the temporary residence visa, and stage is the permanent residence visa.
If the family relationship breaks down before the grant of permanent resident’s visa, the primary applicant (spouse or partner) can still be considered for permanent residence if he or she can provide evidence that he/she and/or dependants are victims of family violence occasioned by the Australian partner.
There are some conditions for eligibility to access the Family Violence provisions including;
a) the visa applicant must be Partner visa applicants who are already in Australia, (b) the visa applicant is a Prospective Marriage visa holder who is already in Australia, and married to the sponsor, (c) A visa applicant/partner who has custodial rights under the family law legislation, of the children under age l8 that the visa applicant and the Australian partner have.
2. What is family violence?
Family violence, as it relates to visa applicants, refers to ‘conduct, whether actual or threatened towards the alleged victim or a member of the family unit of the victim, or a member of the family unit of the alleged perpetrator, or the property of the alleged victim or the property of each of the previously mentioned parties, that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.”
Violence may not only refer to physical violence, but also to psychological or financial abuse
3. Acceptable evidence of family/domestic violence
4.1 Judicial evidence
The evidence could be judicial, i.e. court orders against the partner, or certain court injunctions under the Family Law Act Legislation.
4.2 Non-judicial evidence
Non-judicial evidence could take the form of reports of health professionals who were consulted by the visa applicant, e.g. social workers, psychologists and psychiatrists.
5. Changes to acceptable evidentiary material
The Minister for Immigration, in the Ministerial Instrument IMMI 12/116 provides a wider range of evidentiary material for claims of domestic violence filed ON OR AFTER 24 November 2012 to include:
- Medical reports, hospital report, discharge summary or statutory declaration made by a registered medical practitioner or a registered nurse, performing the duties respectively of a medical practitioner or of a nurse under the meaning of section 3 of the Health Insurance Act l973;
- A report of assault, witness statements or statutory declaration made by a police officer or a statutory declaration by someone other than the alleged victim to a police officer during the course of police investigation;
- Report/statutory declaration of an officer of a child welfare authority or child protection authority of a State or Territory;
- Assessment report made by a women’s refuge or family domestic violence crisis centre, or by a member of the Australian associati n of social Workers who had provided counseling to the alleged victim, by a registered psychologist who has treated the alleged victim while performing duties of a psychologist;
- Statutory declaration made by a family consultant appointed under the family law act or a family relationship counselor; statutory declaration or a letter on the school principal’s letterhead in their professional capacity.
6. Implications of changes of acceptable evidentiary material
The changes effected by the Ministerial Instrument provides a wider range of acceptable evidence in support of a visa applicant’s claim of domestic violence.
The statement should be by way of statutory declaration and must include the following:
-details of allegation of relevant family violence
-name of the perpetrator of domestic violence
-name of alleged victim
-evidence or reasons for forming the opinion or assessment
-details about their professional relationship with the alleged victim or their family members and information about any services or support they have offered in re alleged family violence.
If there are doubts about the strength of a non-judicial evidence, the Department may refer the matter to an independent expert.
7. What to do if you are a victim of domestic violence
The victim of domestic violence should move away from the perpetrator of violence. If there is physical violence, see your treating medical practitioner immediately, consult the medical practitioner, and where possible, have pictures taken of the sites of injury on the body, sustained as a result of domestic violence. Seek police assistance as soon as possible, but move away from the perpetrator of violence. Notwithstanding your concerns for success or failure of your visa application, your safety should be your first concern.
Also note that domestic violence under migration law is not confined to physical violence.
In applying for access to domestic violence provision, it is always prudent to see a migration professional to assist you in making your application.