Changes to the special provisions relating to domestic violence and the limitation of sponsorships for spouse, prospective spouse and interdependency visas
1 July 2005 - Legislation change
Client summary
On 1 July 2005 amendments to the Migration Regulations 1994 ("the Regulations") enhance the integrity of provisions relating to applicants who seek to obtain a spouse, prospective spouse or interdependency visa, or a specified permanent skilled or business visa on the grounds that the applicant or another person has suffered domestic violence.
These amendments enable the Minister to assess evidence of domestic violence that is not supported by a court order or court finding. If the Minister is not satisfied that the alleged victim has suffered domestic violence, the Minister must refer the evidence to an independent expert for an opinion, which the Minister is to take as being correct.
Unsupported statements by the alleged victim from police records of assault are excluded because this information generally reflects the statutory declaration made by the applicant in support of their claim.
Where a visa has already been granted as a result of domestic violence committed by the sponsor, the sponsor is prevented from lodging more than one further partner sponsorship. This provision avoids an unintended outcome of the previous legislation. While limits were previously imposed on the number and frequency of partner migration sponsorships, visas granted following cessation of the relationship as a result of domestic violence committed by the sponsor were not counted against the sponsor. As a result, these sponsors previously encountered no obstacle to continued sponsorships in multiple applications.
Technical details
Subparagraph 1.20J(1)(c)(ii) prevents the approval of further sponsorships where more than one person has previously been granted a visa on the grounds of having ceased a partner relationship with the sponsor after the person (or another person such as a member of the sponsor's family unit) suffered domestic violence committed by the sponsor.
Definitions of "independent expert", "non-judicially determined claim of domestic violence" and "relevant domestic violence" are in subregulations 1.21(1) and 1.23(1A) and paragraph 1.23(2)(b) of the Regulations.
Paragraph 1.23(1)(f) provides that domestic violence is taken to have occurred if the Minister is satisfied, in accordance with paragraph 1.23(1B)(a), that the alleged victim has suffered relevant domestic violence.
Paragraph 1.23(1)(g) provides that domestic violence is taken to have occurred if the Minister is required by subregulation 1.23(1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence.
Subregulation 1.23(1A) describes the circumstances under which an application for a visa is taken to include a non-judicially determined claim of domestic violence.
The circumstances are where an applicant claims that they, or another person, have suffered domestic violence from a specifed perpetrator, and, either the alleged victim and alleged perpetrator have made a joint court undertaking in proceedings concerning the alleged violence, or, the alleged victim, or a person acting on their behalf, presents evidence that the alleged victim has suffered domestic violence from the alleged perpetrator.
The evidence includes Statutory Declarations by specified persons, and copies of police records of an assault on the alleged victim by the alleged perpetrator. A statement made by the alleged victim, that is in the police records, is excluded from the evidence.
Paragraph 1.23(1B)(a) provides that the Minister must, if an application includes a non-judicially determined claim of domestic violence, be satisfied that the alleged victim has suffered relevant domestic violence, and if satisfied must then consider the application on that basis.
Paragraph 1.23(1B)(b) provides that if the Minister is not satisfied that the alleged victim has suffered relevant domestic violence, the Minister must seek the opinion of an independent expert as to whether relevant domestic violence has occurred.
Subregulation 1.23(1C) provides that when the Minister obtains the opinion of an independent expert as to whether relevant domestic violence occurred, in accordance with paragraph 1.23(1B)(b), the Minister must take the opinion to be correct.
New regulation 1.27 retains the provisions of the previous regulation 1.27 and also includes the provision that an opinion given by an independent expert under paragraph 1.23(1B)(b) is not admissible as evidence in some circumstances.
Subregulation 1.27(a) allows the relevant documents to be admitted in evidence in proceedings relating to an application for judicial or merits review of a decision to refuse to grant a visa where the application included a non-judicially determined claim of domestic violence supported by the relevant statutory declaration or opinion. This amendment rectifies an unintended effect that the statutory declaration or opinion may not have been admissible in proceedings for review of the decision to which it related.
Additional information: Nil.
Transitional arrangements: The amendments apply to:
- visa applications made on or after 1 July 2005
- to visa applications made, but not finally determined, before 1 July 2005.
Forms: Form 1040 has been amended.
Instructions: PAM3 Div 1.5 PAM3 has been amended.
Effect on delegations: Nil.
Effect on systems: Nil.