KASAMA Vol. 26 No. 3 / July-August-September 2012 / Solidarity Philippines Australia Network

Family Violence Provisions in Australian Migration Law

This article is a summary of a presentation by Raquel Aldunate [*] delivered at the Queensland Domestic and Family Violence Research’s seminar: Domestic violence related laws - Then and Now, held in Brisbane on 3 August 2012.

Access to justice and equality before the law are important principles underpinning any notion of fairness in the legal system of a democratic country such as Australia. It is these principles which saw the introduction of the domestic violence provisions (the fore-runner of the current family violence1 provisions) into Australian migration law in 1991.

The provisions are intended to protect people (the vast majority of whom are women) sponsored by a partner for permanent residence in Australia, or included in their partner’s permanent resident application, and they are being subjected to violence by that partner. The power imbalance which is fundamental to an abusive relationship is often characterised in the immigration context by statements from abusive partners along the lines of “I am an Australian citizen/permanent resident and I can get you Australian permanent residence but without me you can’t have it” (i.e. ‘I have control over you’).

Lobbying by immigrant women’s services and others led to the introduction of the domestic violence provisions in migration law to protect women who were either forced to leave the abusive relationship, thereby losing their access to permanent residence; or remaining in the abusive relationship and being subjected to continued domestic violence. Leaving the relationship and returning to their home country often meant returning with nothing; no money, no home to return to, no job to go back to, and in some cases being faced with shame, blame, and social isolation by family and community and even physical harm, in their home country. Even when an abused woman left the relationship, the man often simply sponsored another and when she left, he sponsored another, and so on. This practice became known as ‘serial sponsorship’. A sponsor is now limited to only two overseas sponsored partners and the sponsorships must be five years apart; although this limitation may be waived in exceptional circumstances.

The proportion of visa applications involving claims of family violence is very small. Only 2.4% (1,023) of the 41,994 partner visas granted in 2011-2012 involved family violence claims.2 Yet, the family violence provisions, controversial since their introduction in 1991, have often been under the microscope. There have been at least five previous reviews and a further review is currently underway.

The current legislation
The migration legislation requires that an applicant for a permanent partner visa must be in a genuine, continuing and exclusive relationship with their sponsoring spouse when an application for, and a decision on, a visa is made. If the relationship breaks down before the application is decided the visa will be refused as the applicant no longer meets the relevant criteria. However a visa can still be granted in certain circumstances. These include where the sponsoring Australian resident/citizen has died and the applicant has close ties to Australia; or the sponsoring partner has perpetrated family violence against the applicant or against a member of the applicant’s family; or the applicant and their sponsoring partner both have ongoing legal responsibilities towards a child or children of the relationship. The latter is commonly referred to as the ‘child of the relationship exception’.

The family violence exception
To qualify for permanent residence under the family violence provisions the applicant must satisfy the definition of family violence, found in regulation 1.21, by providing evidence of family violence in a prescribed form, found in regulations 1.22 to 1.27. The violence, or part of the violence, must have occurred during the marriage or de facto relationship. Evidence to substantiate family violence is categorised as judicial, or non-judicial, evidence.

Judicial evidence refers to a restraining order or domestic violence protection order or injunction issued by a court against the sponsor; a conviction or finding of guilt against the perpetrator in respect of violence against the applicant or a member of the applicant’s family; or a court injunction under the Family Law Act 1975. A temporary order or injunction is not permissible evidence, which is limited to court orders made only after the alleged perpetrator has been given reasonable opportunity to be heard, or to make submissions to the court on the matter.

Non-judicial evidence refers to a joint undertaking made before a court by the alleged victim and the alleged perpetrator (signed by the Magistrate); or a statutory declaration by the visa applicant (victim), or a person on behalf of the visa applicant (victim), which is supported by: either two statutory declarations by competent persons in different categories of profession; or one statutory declaration by a competent person and one police record of assault.

A ‘competent person’ is either: a registered medical practitioner; a registered psychologist; a registered nurse who is performing the duties of a registered nurse; a social worker who is a member, or eligible to be a member, of the Australian Association of Social Workers, and is performing the duties of a social worker; a person who is a family consultant under the Family Law Act 1975; the manager or coordinator of a women’s refuge or a crisis and counselling service specialising in family violence; or a person with decision making responsibilities in a women’s service or family violence counselling service that has a collective structure.

The law is very specific about the requirements of the statutory declarations from the visa applicant, and also from the competent persons, they must meet seven criteria. The legislation is set out in Division 1.5 of the Migration Regulations, Special Provisions Relating to Family Violence. The declarations must be worded in accordance with the legislation at regulation 1.26 and the definition of family violence at regulation 1.21. If these requirements are not satisfied, the visa application will fail, irrespective of whether the applicant suffered family violence.

In circumstances where the decision maker is dissatisfied with the non-judicial evidence, the matter may be referred to an ‘independent expert’ - a Centrelink social worker. The decision of the independent expert is final.

Australian Law Reform Commission (ALRC) review of Commonwealth laws
Following the release of the National Council’s Plan for Australia to Reduce Violence Against Women and their Children, Time for Action; and consistent with its principle that ‘no law, policy or practice should jeopardise the safety or well-being of women and their children’, the Federal Attorney-General asked the ALRC to identify improvements required in commonwealth laws to safeguard those affected by family violence.

ALRC recommendations
The following is a list of the key recommendations of the ALRC (2011).

1. A common definition of family violence be adopted in all commonwealth, state and territory jurisdictions;
2. Targeted training regarding the nature, features and dynamics of family violence for Department of Immigration and Citizenship (DIAC) case officers and Centrelink independent experts;
3. A new visa subclass for victims of family violence who hold temporary visas because they are the spouse or de facto partner of a temporary visa holder;
4. Extension of the coverage of the family violence exception provisions to all onshore permanent visas;
5. A greater range of non-judicial evidence that can be considered by the visa decision maker;
6. Repeal of the prescriptive criteria for the statutory declarations;
7. Greater transparency and consistency in referrals to the independent expert;
8. Procedural fairness on the part of the independent expert (i.e. the applicant has the right to know any adverse information or assessment and is given the right to respond to it, before the independent expert makes their final report);
9. The totality of the evidence provided by a victim should be considered, taking into account the circumstances of the individual.

Impending changes to the family violence provisions in migration law
On 17 June this year the Minister for Immigration and Citizenship, Chris Bowen, and Minister for the Status of Women, Julie Collins, jointly announced they would be introducing amendments designed to improve the assessment of family violence in migration law.

The amendments include the provision of a wider range of evidence to support claims of family violence, as recommended by the ALRC. Minister Bowen acknowledged that the current process of obtaining statutory declarations, with a set of technical requirements, can be quite difficult for some victims, particularly those in rural or regional areas or those who do not speak English, and that it is both fair and sensible to allow victims to provide other forms of evidence where they exist.

Implementation of the amendments is scheduled for 24 November 2012. In the interim, DIAC will update policy guidelines to confirm that any evidence provided by applicants, in addition to the statutory declarations required under the existing legislation, should be considered.

The Ministers both saw it as unacceptable for women to face obstacles in leaving violent relationships and that they should receive the support and assistance they need. However they also state that ‘to ensure the integrity of assessments, applicants will still need to provide a minimum standard of evidence’. To know exactly what the new regime will involve we will have to wait and see. There is nothing as yet to suggest that the Minister is considering implementing any of the other recommendations of the ALRC.


1. In Commonwealth law ‘family violence’ is used instead of ‘domestic violence’.
2. DIAC Annual report 2011-2012


ALRC (Australian Law Reform Commission), Family violence and commonwealth laws — Improving legal frameworks, Sydney: Commonwealth of Australia, 2011.

Raquel Aldunate
About the Author:

[*] RAQUEL ALDUNATE is the Director of the Refugee and Immigration Legal Service, Inc. Qld.

This article originally appeared in the September 2012 issue of “CDFVReader”, Vol. 11 No. 1, published by the Queensland Centre for Domestic and Family Violence Research, CQUniversity, Mackay, Qld., Australia.