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Are you holding a partner visa and experiencing family violence? There is hope.

Dominic Cookman

18 Mar 2020

Topics

  • COVID-19
  • Migration

The terrible murder of Hannah Baxter and her three children in February 2020 has once again spotlighted the ongoing issue of domestic violence in Australia.

For women who experience domestic violence or abuse while holding a temporary partner visa (or holding a bridging visa while they await determination of a partner visa application), the situation can seem even more frightening.

Partner visas

A partner visa to Australia is granted in two stages:

  1. If the initial partner visa application to Australia is approved, the applicant is issued with a temporary two-year visa, and
  2. After two years have elapsed, the applicant must present evidence to the DHA confirming that the relationship is continuing, after which time the permanent partner visa (permanent residency) can be granted.

The grant of both a temporary and a permanent partner visa depends on showing the continued existence of an ongoing relationship, and where a relationship ends before a permanent partner visa has been granted – the sponsor is free (in fact, by the letter of the law, required) to approach the Department of Home Affairs (DHA) and tell them that the grounds for the grant of a partner visa to the applicant no longer exist. (The saving grace is that the dissolution of a relationship after permanent residence is granted does not and cannot affect the visa holder’s right to a permanent visa.)

It takes no great leap of imagination to see that, where a marriage or relationship involving a temporary visa holder is under strain, a sponsoring partner holds an extra lever of control over the visa applicant and their future. The psychological toll for the applicant of this power imbalance can be very great.

Domestic violence

However, where domestic violence has occurred, it is possible for certain visa holders to continue their application for a partner visa, even if the relationship that forms the basis of their application has broken down. This is the case even where the victim has not yet been granted the initial temporary two-year visa and remains the holder of a bridging visa. The applicant nevertheless retains a responsibility to show that the relationship was a genuine relationship before the violence occurred.

The violence must have occurred whilst the relationship was in existence but does not necessarily have to have been physical violence. The violence can constitute threats, intimidation or other abuse. Various supporting evidence must be provided to substantiate the domestic violence, and can include a police report, a report from a healthcare worker or mental health professional, or a report from a police officer. The applicant should also prepare a statutory declaration annexing any evidence, such as photographs, text messages and emails, that can show violence has occurred. The matrix of what is and is not sufficient evidence is complicated, and we would suggest that help be sought in preparing your submission.

ACT Legal Aid

ACT Legal Aid has also produced a great resource on this issue called ‘Stay Here Stay Safe’; you can read it here.

Family violence is one of the most stressful things a person can experience but leaving your relationship shouldn’t (and doesn’t) mean you have to leave Australia.

How can we help?

If you need assistance with a migration issue, please contact our Migration team on 02 6285 8000 or by email.

*The content of this article is provided for information purposes only, and we do not accept any liability for reliance upon the information contained in this article.  This information cannot be relied upon as legal advice.