The Domestic Violence Provisions In Migration Law
Prepared by Lesley Hunt of Lesley Hunt Migration and Consultancy Services
On behalf of the Immigrant Womens Support Service
March 2002
This information was correct as at March 2002, however please note that immigration regulations are subject to amendment by government.
Introduction
This paper has been commissioned by the Immigrant Womens Support Service to be presented to the Magistrates Conference 2002.
The “domestic violence provisions” were introduced into Australian migration law in 1991. The provisions are intended to protect those people, the vast majority of whom are women, who are being sponsored for permanent residence in Australia by a spouse and they, or a member of their family unit, are being subjected to domestic violence by that spouse. The provisions were introduced in response to concerns raised by social workers, women’s refuge workers, and others, at the incidence of abuse occurring in relationships where one partner was being sponsored for residence in Australia. Anecdotal and statistical evidence at the time revealed significant levels of verbal, emotional, social, racial, physical, sexual and financial abuse in spousal relationships occurring in this context.
The Immigration Context
Sponsorship for immigration purposes generally occurs in the following situations.
When a person who is:
• the fiance of, or
• is married to, or
• in a de facto relationship with, or
• an interdependent relationship with,
an Australian citizen or permanent resident. In these circumstances the person may be sponsored for permanent residence in Australia on the basis of that relationship.
The first three categories are fairly self-explanatory. However, an interdependent relationship for immigration purposes is defined at regulations 1.03 and 1.09A. In part those regulations state that a person is in an interdependent relationship with another person if:
(a) they are not in a prohibited degree of relationship; and
(b) they have both turned 18; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life to the exclusion of any spouse relationships or any other interdependent relationships; and
(ii) the relationship between them is genuine and continuing; and
(iii) they live together; or do not live separately and apart on a permanent basis.
In addition, the regulations require that the couple have been in the relationship for at least twelve months and have lived together at the same address for six months or longer.
Regulation 1.09A(3) states:
For the purposes of this regulation, persons are within a prohibited degree of relationship if either of them is:
(a) an ancestor or descendant of the other person; or
(b) a brother or sister of the other person (whether or not they have both parents in common).
Ancestry through adoption is also a prohibited degree of relationship.
The interdependent category is generally used by gay and lesbian couples, but is not restricted to gay and lesbian couples.
A person who is the spouse of someone who has applied for permanent residence on skilled or business grounds, or under the resolution of status visa category, is also eligible for permanent residence in Australia through being the spouse of that applicant.
Generally an applicant for a permanent visa must continue to meet the eligibility criteria throughout the processing of their application. Therefore, for example, with regard to spouse visa applications, the applicant must continue to be in a genuine, continuing relationship at the time the application is lodged and the time the application is decided. If the relationship breaks down before the application is decided the application will be refused as the applicant no longer meets the relevant criteria. The only exceptions are when the following circumstances apply:
• the Australian resident/citizen spouse has died and the applicant has close ties to Australia; or
• the sponsoring/nominating spouse has perpetrated domestic violence against the applicant or against a member of the family unit of the applicant; or
• the applicant has an acceptable order under the Family Law Act regarding a child or children of the relationship.
Therefore prior to the introduction of the domestic violence provisions in Australian migration law, women sponsored for residence by an Australian resident/citizen spouse and who were subjected to domestic violence, were in a position of either:
• Leaving the relationship and thereby losing their right to permanent residence in Australia; or
• Remaining in the relationship and being subjected to continued domestic violence.
The provisions ensure that visa applicants do not remain in abusive relationships in order to obtain permanent residence in Australia. A person who qualifies under the provisions is entitled to obtain permanent residence even if the relationship has broken down and the nominator/sponsor has withdrawn their support for the visa application.
The Domestic Violence Provisions in the Migration Regulations
The relevant regulations are contained in Part 1, Division 1.5, Regulations 1.21-1.27 of the Migration Regulations 1994.
Under the regulations domestic violence is defined as violence or threats of violence against a person or their property which causes fear or apprehension about personal well being or safety. (See regulation 1.23).
To qualify under the provisions the visa applicant must provide evidence of domestic violence, in a prescribed form. The regulations specify that at least one of the following forms of evidence must be provided. No other forms of evidence are acceptable.
• A restraining order or protection order or injunction issued by a court against the sponsor/nominator. An interim order is usually not sufficient; or
• A conviction order against the sponsor/nominator regarding the domestic violence; or
• Joint undertakings filed in court proceedings where there was an allegation of violence; or
• Three statutory declarations stating that domestic violence as occurred. One from, or on behalf of, the visa applicant (d.v. victim); and two from “competent” people; or
• One statutory declaration by, or on behalf of, the applicant, plus one statutory declaration from a “competent” person, plus a police record of assault.
The statutory declaration from the victim (visa applicant) must set out the allegation and name the person alleged to have committed the domestic violence. (See regulation 1.25).
The statutory declaration on behalf of the victim (visa applicant) must:
• name the visa applicant; and
• set out the allegation; and
• identify their relationship with the visa applicant; and
• name the person alleged to have committed the relevant domestic violence;
• and set out the evidence on which the allegation is based. (See regulation 1.25).
Statutory declarations by “competent persons”:
(a) must be made by a competent person; and
(b) must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by a person; and
(d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
(e) must name the person who in the opinion of the competent person, committed that relevant domestic violence; and
(f) must set out the evidence on which the competent person’s opinion is based. (See Reg.1.26)
A competent person is defined at regulation 1.21 as follows:
Competent person means:
(a) in relation to domestic violence committed against an adult:
(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii) a person who:
(A) is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B) is performing the duties of a registered nurse; or
(iv) a person who:
(A) is a member of the Australian Association of Social Workers or is recognised by that Association as person who is eligible to be a member of that Association; and
(B) is performing the duties of a social worker; or
(v) a person who is a court counsellor under the Family Law Act 1975; or
(vi) a person holding a position of a kind described in subregulation (2); or
(b) in relation to domestic violence committed against a child:
(i) a person referred to in paragraph (a); or
(ii) an officer of the child welfare or child protection authorities of a State or Territory.
(2) The persons referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:
(a) manager or coordinator of:
(i) a women’s refuge; or
(ii) a crisis and counselling service that specialises in domestic violence; or
(b) a position with:
(i) decision-making responsibility for:
(A) a women’s refuge; or
(B) a crisis and counselling service that specialises in domestic violence;
that has a collective decision-making structure; and
(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.
When two declarations from competent persons are being submitted as evidence of domestic violence, the competent persons must be from two different categories, not from the same category.
The Visa Assessment Process
As referred to above, the primary criteria for the partner visas under the Family Migration Program are that the relationship is genuine and continuing. Once this has been established a temporary residence visa for two years will be issued to the applicant. If the relationship continues to be assessed as genuine and continuing at the end of that two year period, permanent residence is granted.
If the relationship breaks down during that two year period, and evidence of domestic violence is submitted in accordance with the regulations, the permanent residence will be granted. It is important to note that at this stage, the relationship has already been assessed by the immigration department officials, as being genuine and continuing. Therefore it cannot be construed that women are not in genuine marriages and are making false allegations of domestic violence in order to obtain permanent residence.
On this point, it should also be noted that protection orders or restraining orders are not the only form of evidence required to establish domestic violence for immigration purposes. The other forms of evidence, including statutory declarations from competent persons, are also appropriate means of evidencing domestic violence under the Migration Regulations.
Once the specified evidence of domestic violence has been obtained, the permanent residence visa must be granted. The immigration department has no discretion with regard to the assessment of domestic violence, where the evidence is submitted in the prescribed manner. The law does not require there to be a cause and effect relationship between the domestic violence and the breakdown in the relationship. The domestic violence may have occurred before the relationship broke down, or even after the relationship broke down. All that is required is for the relationship to have broken down, and for domestic violence to have occurred.
The Fiance Visa
A person who is the holder of a fiance (prospective spouse) visa will not always be able to access the domestic violence provisions. On being granted their visa they are able to enter and remain lawfully in Australia for 9 months. They must marry their Australian resident/citizen fiance within that 9 month period.
If their relationship breaks down due to domestic violence prior to the marriage taking place they will not be able to access the domestic violence provisions.
If they have married but have not lodged their application for residence, they can access the d.v. provisions. The assessment of a genuine spouse relationship is not required, as that is a “time of application” criteria.
If they have married and lodged their application for residence, they can access the d.v. provisions. An assessment will be made regarding the genuineness of the marriage and whether they have provided the evidence of domestic violence as required by the migration regulations.
Conclusion
Domestic violence orders are sought for protection purposes, they are not sought in order to gain permanent residence. In order to obtain permanent residence in Australia, the Migration Regulations clearly require an assessment as to the genuineness of the marriage, or de facto relationship, or intended marriage, which is independent from any issues of domestic violence and therefore independent from any evidence submitted regarding domestic violence. Furthermore, protection orders are not the only form of prescribed evidence required to establish whether or not domestic violence has occurred.
Copyright © Immigrant Womens Support Service 2002.