A person who has experienced family violence may still be granted the permanent Partner visa even though the relationship with the sponsor has ended. You do not have to stay in the relationship to keep your visa application alive. These are called the family violence provisions, and they are part of the Migration Regulations 1994.
If you are in immediate danger, call 000. Support is available. The Department of Home Affairs sets out how the provisions work and lists support services on its Domestic and family violence and your visa pages.
Who the family violence provisions apply to
The provisions apply to people whose partner visa application is still on foot — most often someone who holds a subclass 820 visa and is waiting on the subclass 801 permanent visa, and someone whose 820 has not yet been decided. Separate provisions in the regulations cover a person who holds or has held a Prospective Marriage visa; see moving from a subclass 300 visa.
The violence must have been committed by the sponsoring partner. The person who experienced it can be the applicant, a dependent child of the applicant or of the sponsor or of both, or, in some of the provisions, a member of the applicant's family unit who applied with them.
The regulations define relevant family violence as conduct, actual or threatened, towards the alleged victim, a member of their family unit, a member of the alleged perpetrator's family unit, or the property of any of those people, that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, their own wellbeing or safety. Violence includes a threat of violence. The violence, or part of it, must have occurred while the relationship existed.
What the Department must be satisfied of
Two separate things have to be made out.
- That the relationship was genuine and ongoing before it ended. The Department of Home Affairs is explicit about this. The family violence provisions do not replace the relationship assessment; they sit on top of it. The evidence is the ordinary partner visa evidence — see relationship evidence — and it is assessed for the period before the relationship ended.
- That family violence took place in the relationship. This is assessed under Division 1.5 of the Migration Regulations 1994, described below.
People sometimes assume the second point is the hard one. In practice the first is refused just as often, because the relationship evidence stops at the point things went wrong and there is little from the earlier period.
The two ways a claim is made out
Judicially determined claims
A claim is made out on the court record if any of the following exists:
- a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator, on the application of the alleged victim;
- a court has made an order under a State or Territory law against the alleged perpetrator for the protection of the alleged victim from violence, and that order was made after the court had given the alleged perpetrator an opportunity to be heard or to make submissions; or
- a court has convicted the alleged perpetrator of an offence of violence against the alleged victim, or recorded a finding of guilt.
The wording matters. An interim or consent order made without the other person having had an opportunity to be heard does not meet the second limb, even though it may be very real protection. If your order does not fit, your claim is not lost — it is made out the other way instead.
Non-judicially determined claims
Where there is no qualifying court outcome, the claim is made out by evidence. The regulations require:
- a statutory declaration by the applicant (or by the spouse, de facto partner or prospective spouse of the alleged perpetrator) that names the person alleged to have committed the violence, sets out the allegation, and, where the conduct was towards someone else, identifies that person and the relationships involved; and
- the type and number of items of other evidence specified by the Minister in a legislative instrument for that purpose.
The Department publishes what is required on its Family violence evidence page, and Form 1410i explains how to complete a statutory declaration for a family violence claim. Check that page for the current requirements before you prepare anything, because the specified evidence is set by instrument and can change.
A claim is also treated as non-judicially determined where the alleged victim and the alleged perpetrator have made a joint undertaking to a court in proceedings in which an allegation of violence was before the court.
The independent expert
If the claim is non-judicially determined and the Minister is not satisfied that the applicant experienced relevant family violence, the regulations do not allow a refusal on that basis. Instead, the Minister must seek the opinion of an independent expert — a suitably qualified person employed by, or contracted to, an organisation specified by the Minister for that purpose.
Two features of this are worth knowing in advance. First, the expert will contact you, usually to arrange an interview, and that interview is where the claim is really assessed. Second, the Minister must take the independent expert's opinion on whether you experienced the violence to be correct. It binds the decision. That is a protection, but it also means the interview carries a great deal of weight, and it is worth being prepared and supported for it.
Confidentiality and online safety
The regulations restrict what can be done with the material. A statutory declaration made under the family violence provisions, and the independent expert's opinion, are not admissible in evidence before a court or tribunal other than in an application for judicial review or merits review of a decision to refuse that visa application, or in a prosecution of the maker of the declaration for a false declaration.
The Department also gives practical online safety advice to partner visa holders in unsafe relationships: change your ImmiAccount password, do not rely on saved passwords, and consider setting up a new email account that only you can access. If your sponsor or anyone else has your ImmiAccount details, they can see your application and your correspondence.
Important
Your sponsor cannot be changed and cannot be replaced part-way through. If a new relationship has begun, that is a separate question from the family violence claim, and it should not be raised with the Department before you have had advice about how it affects this application.
Getting help with a claim
The requirements above are technical: which court orders count, which items of evidence the instrument specifies, how the statutory declarations must be framed, and how the relationship period before the violence is evidenced. Claims prepared with an Australian migration lawyer are more likely to succeed, largely because the evidence is assembled in the form the regulations require rather than in the form that feels natural to describe. A lawyer can also deal with the Department on your behalf, so that correspondence does not have to come to you directly.
A family violence claim is not the only route after a relationship ends. Where there are children and court orders, the child of the relationship provision may also be open, and the two are not mutually exclusive. If a decision has already been made on your application, see why 820 visas are refused.
What to do next: read the Department's Family violence provisions page for the current process, and if the relationship ends for what else changes when a partner visa relationship ends, including what has to be notified and by when.
Common questions
Do I have to stay with my sponsor to keep my visa application alive?
No. The family violence provisions in the Migration Regulations 1994 allow the permanent Partner visa to be granted where the relationship with the sponsoring partner has ended and the applicant, or a dependent child of the applicant or the sponsor, has experienced family violence committed by the sponsoring partner. Leaving the relationship does not by itself end the application.
What does the Department have to be satisfied of?
Two things. First, that the relationship was genuine and ongoing before it ended, which is assessed on the ordinary relationship evidence. Second, that family violence took place in the relationship. Both have to be made out, and they are assessed separately.
What counts as evidence of family violence?
There are two routes. A judicially determined claim rests on a court outcome, such as an injunction under the Family Law Act 1975, a State or Territory protection order made after the alleged perpetrator had an opportunity to be heard, or a conviction or finding of guilt for an offence of violence. A non-judicially determined claim rests on a statutory declaration by the applicant setting out the allegation, together with the type and number of items of evidence the Minister specifies by legislative instrument.
What happens if the Department does not accept my claim?
If the claim is non-judicially determined and the Minister is not satisfied that the applicant experienced relevant family violence, the regulations require the matter to be referred to an independent expert for an opinion. The expert contacts the person, usually to arrange an interview. The Minister must take the independent expert's opinion on that question to be correct.
Will my sponsor be told what I have said?
The statutory declarations made for a family violence claim, and the independent expert's opinion, are not admissible in evidence before a court or tribunal except in judicial or merits review of a refusal of that visa application, or in a prosecution of the person who made a false statutory declaration. If you are worried about your safety, the Department's own advice is to change your ImmiAccount password, avoid saved passwords and consider setting up a new email account.
Sources
Keep reading
If Your Sponsor Dies During Processing
What happens to an 820 or 801 partner visa application if the sponsoring partner dies: the clause that applies, what must be established, and the evidence.
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The Child-of-the-Relationship Provision
How clause 801.221(6) lets a partner visa be granted after the relationship ends where there is a child, custody or access, and a maintenance obligation.
Read the guide →