Fact Sheet 38 - Family Violence Provisions

The Family Violence Provisions (FVP) of Australia's migration program allow certain people applying for permanent residence in Australia to continue with their application after the breakdown of their married, or de facto relationship if they, or a member of their family unit, have experienced family violence committed by their partner.

The FVP were introduced in response to community concerns that some partners might feel compelled to remain in abusive relationships rather than end the relationship and be forced to leave Australia.

Definition of relevant family violence

Under the Migration Regulations, relevant family violence is defined as:

'a reference to conduct, whether actual or threatened, towards:

• the alleged victim, or
• a member of the family unit of the alleged victim, or
• a member of the family unit of the alleged perpetrator, or
• the property of the alleged victim, or
• the property of a member of the family unit of the alleged victim, or
• the property of a member of the family unit of the alleged perpetrator,

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety'.

Eligibility

Under the FVP, people who are in Australia and who are applicants for the following visa classes may be eligible to continue with their application for permanent residence:

Family stream visa classes
Primary applicants for:

• Partner (permanent) - offshore
• Spouse (permanent) - offshore*
• Interdependency (permanent) - offshore*
• Partner (temporary and permanent) - onshore
• Spouse (temporary and permanent) - onshore*
• Interdependency (temporary and permanent) - onshore*.
  *Although these visas have been closed to new applicants from 1 July 2009, existing applicants are covered by family violence provisions.

Skilled stream (business) visa classes:
Partners of primary applicants for:

• Established Business in Australia
• State/Territory Sponsored Regional Established Business in Australia
• Labour Agreement
• Employer Nomination Scheme
• Regional Sponsored Migration Scheme
• Distinguished Talent

Other:
Partners of primary applicants for Resolution of Status (subclass 851 only)

All applicants must also satisfy all other relevant legal requirements, including health and character requirements.

How the family violence provision works

Family stream visa classes

Partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens who apply to live permanently in Australia undergo a two-stage visa application process.
See: Fact Sheet 30 - Family Stream Migration - Partners

Partner visa applicants

If the relationship breaks down after the person has applied for permanent residence, and they can provide evidence that is acceptable under the Migration Regulations that they or their dependants have been the victim of family violence committed by their Australian partner, the person can still be considered for permanent residence.

They will also have to satisfy the delegate that their relationship was genuine and continuing until it ceased.

Note: There are some variations within the Partner category visas in the eligibility to access the FVP. More information can be obtained from family violence contact officers in each state and territory office of the department.
See: Contact Us

Prospective Marriage visa holders

Some Prospective Marriage visa holders may be eligible to apply for permanent residency under the FVP.

If, having married their sponsor before their Prospective Marriage visa ceased, the marriage breaks down and they provide evidence that is acceptable under the Migration Regulations that they have been the victim of family violence committed by that sponsor, they can access the FVP regardless of whether they had already lodged the Partner visa application.

Skilled stream (business) visa classes

The partners of primary applicants for business visa classes listed above may still be considered for permanent residence in the following circumstances:

• the married or de facto relationship broke down after the application for the business or skilled visa had been lodged
• they provide prescribed acceptable evidence that they or their dependants have been the victim of family violence committed by the primary applicant.

If the primary applicant is granted permanent residence then the partner may be granted permanent residence at the same time.

The above also applies to applicants for a Resolution of Status visa (subclass 851 only).

Forms of evidence

For the purposes of the FVP, prescribed acceptable evidence may be judicially or non-judicially determined.

Acceptable judicially determined claims

Any one of the following:

• certain court injunctions under the Family Law Act 1975
• certain court orders against the partner made under an Australian state or territory law
• evidence that a court has convicted the partner of an act of violence against the visa applicant or their dependants (or has recorded a finding of guilt against the partner).

Acceptable non-judicially determined claims

Both of the following:

• a statutory declaration completed by the partner of the person alleged to have committed the family violence which sets out the allegation of family violence and names the person alleged to have committed it
• two statutory declarations, completed by competent people in two different professions, that:
  • set out the evidence on which they have based their opinion that family violence has occurred
  • name the person alleged to have committed it.

A police record of assault, not including a witness statement made by the alleged victim, can be provided as an alternative to one of the statutory declarations from a competent person.

Evidence of a joint undertaking to a court made by the visa applicant and the partner that relates to an allegation which is before the court that the partner has committed an act of violence against the visa applicant or their dependants. A joint undertaking by itself constitutes an acceptable non-judicially determined claim of family violence.

Competent person

A 'competent person' is a certain professional who is authorised to provide statutory declarations as forms of evidence of family violence. They are:

• doctors and psychologists who are registered in Australia
• nurses who are registered in Australia and currently working as registered nurses
• social workers (who are members - or are eligible for membership - of the Australian Association of Social Workers) and currently working as social workers
• family consultants under the Family Law Act 1975
• managers or coordinators of women's refuge centres or specialist family violence crisis and counselling services; or people with decision–making responsibility for matters concerning family violence in a women's refuge centre or specialist family violence crisis and counselling services
• Australian state and territory government child welfare and protection authorities (if there is violence or abuse, including sexual abuse, of children).

Statutory declaration form

Department Form 1040, Statutory Declaration relating to family violence, should be used for the purpose of providing a statutory declaration under the FVP.

The form is available from the department's website or from departmental family violence contact officers.
See:
Form 1040 (07/07) Statutory declaration relating to domestic violence (for partner category visa applications lodged before 15 October 2007) (108KB PDF file)
Form 1040 Statutory declaration relating to family violence (for partner category visa applications lodged on or after 15 October 2007) (106KB PDF file)

Referral for independent assessment

Where there are reasonable doubts regarding the veracity of a non-judicially determined claim of family violence, evidence supporting the claim may be referred by the department for assessment to an independent expert, gazetted by the Minister for this purpose. The independent expert will provide an opinion to the department either that family violence has or has not occurred, basing this finding on the evidence submitted by the applicant and any other evidence available, including an interview.

An independent expert's opinion on whether or not family violence has occurred must be taken as correct by the department.

This referral mechanism only applies to non-judicially determined claims of family violence (that is, statutory declarations, police records of assault or joint undertakings before a court). Acceptable judicially determined claims (see above) must be accepted by the department as conclusive evidence of family violence and are not subject to referral.

Information regarding a claim of family violence is provided to the independent expert on the understanding it will be treated in confidence.

Family violence contact officers

Family violence contact officers are located at department offices in each state and territory. They are immigration officers who are experienced in handling applications from people seeking permanent residence on the grounds of family violence.

They provide information on the FVP as well as details of organisations that offer a range of welfare and legal services.

 

Further information is available on the department's web site.
See: www.immi.gov.au

The department also operates a national telephone service inquiry line.
Telephone: 131 881
Hours of operation: Monday to Friday from 9 am to 4 pm (recorded information available outside these hours) for the cost of a local call anywhere in Australia.

Fact Sheet 38. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Revised 1 July 2009.

© Commonwealth of Australia 2009.