On 15 October 2007 the Department of Immigration and Citizenship (DIAC) amended the wording of its Migration Regulation 1.23(2)(b) from relevant domestic violence to relevant family violence to provide consistency with the definition of family violence under the Commonwealth Family Law Act of 1975. Their definition of family violence is as follows:
Family violence means conduct, whether actual or threatened, by a person toward or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
There have been two significant decisions of the Full Federal Court of Australia which have impacted on the interpretation of legislation about the family violence provisions. The first was the judgement in the Cakmak v MIMIA case (2003) which rejected a definition of domestic violence that incorporated emotional or psychological violence. In that case the court decided that the definition of relevant domestic violence did not offer the scope required to incorporate cases where the applicant had clearly been psychologically abused, but not subjected to physical violence or threats of physical violence.
However, subsequent to that was the judgement in the case of Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 56. The judgement states in part:
“Australian legislatures can also be seen to understand the expression ‘domestic violence’ to encompass more than acts of physical violence (see, for example, Domestic and Family Violence Protection Act (Qld) (1)(c); (SA) s 4(2); Domestic Violence Act 1992 (NT) s 4; Protection Orders Act 2001 (ACT) s 9)…Further, I agree with Hely J that the inclusion of registered psychologists (and I would add social workers and those involved in positions of responsibility in women’s shelters and crisis and counselling services that specialise in domestic violence) within the class of persons who may provide statutory declarations as evidence that the alleged victim has suffered relevant domestic violence points towards the word ‘violence’ being used in regulation 1.23(2)(b) in a sense that extends beyond physical violence.”
The family violence provisions are intended to enable applicants for prescribed visas who are subjected to domestic/family violence to pursue permanent residence without having to rely on an abusive partner or remain in an abusive relationship until a permanent visa is granted.
Family violence provisions apply to a range of spousal relationships including married and de facto couples. The term de facto has recently been amended to include samesex relationships. Couples in Australia under labour agreements, employer nomination schemes and other temporary skilled and business visas may also access the family violence provisions. However, partner visas are the most common visas under which domestic/family violence claims are made in Australian immigration law. Partner visas are generally a two, three or, in limited cases, a one-step process. The three step process commences with a fiancé visa which requires the visa holder to enter Australia and marry the sponsor within nine months. After marriage the visa holder applies for an onshore spouse visa and is usually granted a temporary visa which lasts for two years. After two years DIAC assesses the relationship on which the visa was based and if it remains ongoing, a permanent visa is granted. If the relationship should end prior to attainment of a permanent visa, applicants in limited circumstances may still be able to obtain permanent residence. The prescribed circumstances include incidence of domestic/family violence committed by their sponsor; death of the sponsoring spouse; or that there is a child from the relationship both parties have ongoing commitments towards.
However, a great deal of evidence that domestic/ family violence has occurred is required by DIAC in order for the case to fall within the required provisions. Firstly the alleged victim can be only one of the following: a spouse of the perpetrator; a member of the family unit of the spouse of the alleged perpetrator; or a dependent child of either the alleged perpetrator, the alleged perpetrator’s spouse, or person in an interdependent relationship with the alleged perpetrator. Additionally, in partner visa cases the domestic/family violence must have been perpetrated by either the sponsoring spouse or the sponsoring interdependent partner.
Once these requirements are satisfied, an additional two categories of either judicial or non-judicial evidence must be provided. Judicial evidence includes either: the granting of an injunction against the perpetrator granted by the court; a domestic violence protection order; or a conviction of assault against the spouse/sponsor. Non-judicial evidence includes either: a joint undertaking by both parties filed in court; the production of statutory declarations by the applicant and two ‘competent’ people; or a police report and a statutory declaration provided by the applicant and one ‘competent’ person.
If domestic/family violence is proven and the applicant meets health, public interest and character requirements they will be granted a permanent visa. If, however, domestic/family violence is not proven, the case may be sent for independent assessment by a Centrelink social worker, who makes the final decision.
In 2007/8 DIAC reported 502 claims of immigration related domestic/family violence nationally. This figure is very small in relation to Australia’s overall migration program and can either be interpreted as indicating minimal incidence of abuse, or lack of awareness that the domestic/family violence provision exists. However, practitioners should be aware that immigration law is complex and professional advice should only be delivered by competent registered migration agents. Further information and free legal assistance on immigration and refugee cases can be accessed from the Refugee Immigration Legal Service website at http://www.rails.org.au/.
* Annie Webster, CDFVR and Lesley Hunt, Lecturer, Australian Migration Law and Practice, Griffith University.
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