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Immigration status and family violence

 

The Migration Regulations 1994 (Cth) have special rules about family violence and how it can affect applications for permanent residency.

If you have already put in an application for a visa, and you are a victim of family violence, you may still get permanent residency even if you separate from your partner.

What is relevant family violence?

If your partner has been violent, or has threatened violence towards:

    a) you, or
    b) a member of your family unit who is included in your application, or
    c) a member of the family unit of your partner, or
    d) your property, or the property of a member of your or your partner's family unit

that has caused you or a member your family unit to reasonably fear for, or to be reasonably apprehensive about, your or their personal safety or wellbeing it is family violence.

Do the family violence provisions apply to me?

See the Department of Immigration and Border Protection's (DIBP) Fact Sheet on the family violence provisions to see if you are eligible to apply.

How can I prove that I am a victim of family violence?

You need to have sought help about the family violence before the visa can be granted. You may have acceptable evidence that may be judicially (by a court) or non-judicially determined:

Acceptable judicially determined claims, being any one of the following:

  • A Family Court injunction against your partner.
  • A final violence restraining order against your partner.
  • Your partner's criminal record showing violence against you or your dependants.

Acceptable non-judicially determined claims:

For people making their first family violence claim on or after 24 November 2012

  • Both of the following:
    • a statutory declaration using Form 1410- Statutory declaration for family violence or a generic statutory declaration completed by you setting out the allegation of family violence and naming the person alleged to have committed it, and
    • at least two documents from the list in Schedule 1 of this legislative instrument. This type of evidence does not always have to be in the form of a statutory declaration.

      OR

  • Evidence of a joint undertaking to a court by you and your spouse or partner that relates to an allegation before the court that the spouse or partner has committed an act of violence against you or your dependants.

Persons who first made a family violence claim prior to 24 November 2012

  • Both of the following:
    • a statutory declaration using Form 1040- Statutory declaration relating to family violence completed by you setting out the allegation of family violence and naming the person alleged to have committed it, and
    • two statutory declarations from "competent persons" from different professions that
      • set out the evidence on which they base their opinions that family violence has occurred and
      • name the person alleged to have committed it.

Note: a copy of a police record of assault on the alleged victim by the alleged perpetrator, that does not include a witness statement by the alleged victim, can be provided as an alternative to one of the statutory declarations from a competent person

OR

  • Evidence of a joint undertaking to a court by you and your spouse or partner that relates to an allegation before the court that the spouse or partner has committed an act of violence against you or your dependants.

"Competent persons" can be:

  • Doctors who are registered in Australia.
  • Psychologists who are registered in Australia.
  • Nurses who are registered under section 3 of the Health Insurance Act 1973 (Cth)
  • Social workers (have to be members of the Australian Association of Social Workers or recognised as eligible for membership Association)
  • Family consultants employed by the Family Law Court of Australia or the Family Court of WA
  • Managers or coordinators of a women's refuge or specialist domestic violence crisis and counselling service.
  • Child welfare and protection officers (if there is violence or abuse of a child).

In all of the above cases the competent person must be currently performing the duties of the profession or position in Australia.

For claims made at any time, where there are reasonable doubts regarding non-judicially determined claims of family violence, evidence supporting the claim may be referred for assessment by an independent expert. The independent expert will provide an opinion on the evidence provided (including an interview) as to whether or not family violence has or has not occurred. The information is provided to the independent expert on the understanding that it is to be treated in confidence.

Get legal advice.


Will I be interviewed by the DIBP?

Yes, you could be asked questions about your relationship such as:

  • When and how did you meet each other?
  • Do you have any children?
  • What are your plans for the future?
  • Who gets the meals in your household?
  • Describe the house where you live.

You may also be asked to talk about the family violence. These questions are to try and check that your story is truthful.

Can I get compensation if I have been injured as a result of family violence?

If you have been injured or suffered loss as a result of a criminal offence, you may be able to claim a compensation payment from the government.

For more information see Compensation for victims of crime.


Where can I get more information?

  • Contact the Multicultural Women's Advocacy Service on (08) 9227 8122 or (08) 9328 1200  for women and children from non-English speaking backgrounds. They can put you in touch with women's refuges, welfare and legal services.
  • Contact the Department of Immigration and Border Protection on 131 881 (recorded information is available after hours) for a Fact Sheet on the family violence provisions. The electronic version of the fact sheet includes a link to the forms needed for statutory declarations. Family violence contact officers are located at DIBP offices. The immigration officers are experienced in handling applications from people seeking permanent residence on the grounds of family violence.
  • Contact CASE for Refugees on (08) 9227 7311 for assistance with spouse visas  where family violence is involved.

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Last reviewed: 28/11/2012

Last Modified: 25/09/2014

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.