O slideshow foi denunciado.
Seu SlideShare está sendo baixado. ×
Carregando em…3

Confira estes a seguir

1 de 75 Anúncio

Mais Conteúdo rRelacionado

Diapositivos para si (16)

Semelhante a DV Provisions (20)


DV Provisions

  3. 3. BACKGROUND  Australia’s migration program as a whole is divided into two distinct programs for permanent migrants:  Skilled and family migrants  Humanitarian program
  5. 5. QUESTION 1  Overall, has the number of migrants under partner visa schemes increased or decreased in the last four years (to the financial year ending 2013-14)?
  6. 6. ANSWER  Increased by almost 7000 migrants to 61 112 in the 2013-14 financial year. This number is predicted to drop slightly during the 2014-15 financial year to 60 885. http://www.immi.gov.au/media/statistics/statistical-info/visa-grants/migrant.htm
  7. 7. QUESTION 2 How many people were granted partner visas in the 2013-14 year? a) 47 752 b) 61 387 c) 85 276
  8. 8. ANSWER a) 47 752 This number is not predicted to change much for the 2014-15 financial year. http://www.immi.gov.au/media/statistics/statistical-info/visa-grants/migrant.htm
  9. 9. QUESTION 3 Roughly what percentage of the total migration program did partner visas account for in the 2013-14 financial year? a) 13% b) 46% c) 25%
  10. 10. ANSWER c) 25% In the 2013-14 year family migration accounted for 32.2% of the total migration to Australia. http://www.immi.gov.au/media/statistics/statistical-info/visa-grants/
  11. 11. PARTNER VISAS: OVERVIEW  Applications can be made either inside or outside Australia  Available to people who are married or in a de facto relationship with an Australian partner (the sponsor)  Applicants must meet requirements set out in the legislation
  12. 12. PARTNER VISA APPLICANTS  that they have a mutual commitment to a shared life together, to the exclusion of all others;  they have a genuine and continuing relationship; and  that they live together or do not live separately and apart on a permanent basis.
  13. 13. PARTNER VISAS: 2 STAGE PROCESS STAGE ONE  12 month requirement (waived in certain situations) Applicable visa subclasses: Applicant within Australia  Subclass 820 (temporary) Applicant outside Australia  Subclass 309 (temporary)
  14. 14. PARTNER VISAS: 2 STAGE PROCESS STAGE TWO Two year waiting period (waived in certain circumstances) Applicable visa subclasses: Applicant within Australia  Subclass 801 Applicant outside Australia  Subclass 100  Access to family violence provisions? Yes.
  15. 15. PROSPECTIVE MARRIAGE VISA  Subclass 300  Requirements:  18+  Have met their sponsor, in person, since they both turned 18;  Be known to their sponsor;  Possess a genuine intent to marry within the visa period;  Be able to enter into a marriage that is valid under Australian law (that is, there must be no impediment to their marriage).  Access to family violence provisions? Yes.
  16. 16. SKILLED MIGRANTS  Family violence provisions ONLY apply to pre- 1/7/2012 visa applicants in the following classes:  Established Business in Australia (subclass 845)  State/Territory Sponsored Regional Established Business in Australia (subclass 846)  Labour Agreement (subclass 855)  Employer Nomination Scheme (subclass 856)  Regional Sponsored Migration Scheme (subclass 857)  NOTE: this avenue was only available prior to 1 July 2012.
  17. 17. RECAP – WHEN CAN AN APPLICANT ACCESS THE FAMILY VIOLENCE PROVISIONS?  Partner visa applicants (second stage)  Prospective marriage visa applicants  Former Option: As secondary applicants on older skilled migration visas  Secondary applicant of a Distingushed Talent (subclass 858) visa who has experienced family violence by the primary applicant.
  19. 19. GENUINE PARTNER RELATIONSHIP  Must prove that the relationship was genuine until it ceased.  De facto relationships are under an additional requirement to have existed for more than 12 months prior to the application for a visa.  Exceptions:  compassionate and compelling circumstances;  Registered relationships as prescribed by Acts Interpretation (Registered Relations) Regulations 2008 (2008) – same sex and otherwise  If the exceptions apply, relationships less than six months are not fatal to an application
  20. 20. GROUP DISCUSSION  What considerations do you think the decision maker would take into account when assessing a relationship as “genuine”?
  21. 21. PRESCRIBED CONSIDERATIONS  The Regulations prescribe a list of considerations to be taken into account:  The financial aspects of the relationship;  The nature of the household;  Social context of the relationship;  The nature of the commitment to each other These matters MUST be taken into account for certain visas, and are discretionary considerations for others.
  22. 22. FINANCIAL ASPECT OF RELATIONSHIP  Joint names on a lease/mortgage;  Being a guarantor for the partner’s debt;
  23. 23. NATURE OF THE HOUSEHOLD  Living together at the same date with the partner;  Household duties roster;  Advertisement of the property listing them as a couple;
  24. 24. SOCIAL ASPECTS OF THE RELATIONSHIP  Proof of joint travel, participation in sports  Statements from family and friends regarding the relationship  Joint invitations to social events  Registration of the relationship in the State;
  25. 25. NATURE OF THE COMMITMENT TO EACH OTHER  Birth certificates of children;  Copies of wills, superannuation and/or life insurance;  Knowledge of each other’s background
  26. 26. STATUTORY DECLARATIONS  Form 888 – Statutory declaration by a supporting witness Statutory Declaration – Partner Visa (Applicant)  Stat Decs play an important role in considering a “genuine partner relationship”, particularly where no evidence can be provided.  If this is the case, the Statutory Declaration should be of a high standard to explain the relationship thoroughly.
  27. 27. CASE STUDY 1: 13311376 [2013] RRTA 889  Pregnancy of applicant to the partner;  Documents of financial transfer;  Letters of support from witnesses and religious leaders;  Oral evidence given in the hearing. HELD: The applicant had been in a genuine partner relationship
  28. 28. CASE STUDY 2: 1011421 [2012] MRTA 3220  Gay couple  Moved in together after one month;  Travelled on holidays together;  Delegation of household duties;  Familiarity with each other’s family members;  Pooled funds. Found to be a genuine and continuing relationship.
  29. 29. CASE NUMBER 3: 1401877 [2014] MRTA 2039  Joint bank account statement;  Lease in joint names;  Loan for applicant taken in partner’s name for financial purposes;  Financial support for the individual and her family;  Moved into a share house with him when entering Australia, commenced a relationship two weeks weeks later;  Sworn statement of partner and witness;  Photographs HELD: Found to be in a genuine partner relationship
  30. 30. CHALLENGES  Practical considerations – partners of abusive relationships may be sheltered socially and financially – difficulty in obtaining evidence of joint relationship  Cultural standards and gender roles – one partner may be responsible for the finances, etc  Evidentiary standard of evidence  Solutions: May need to perform an inquisitive role which can be overlooked by the client e.g. couple pays a visit to the fertility clinic
  32. 32. FAMILY VIOENCE PROVISIONS IN THE MIGRATION REGUALTIONS  Usually a person who has obtained a visa because of a relationship must be sponsored by their partner for 2 years before they can obtain permanent residency  Exceptions  There is a child to the relationship  Death of a spouse  There has been family violence during the relationship
  33. 33. WHERE ARE THE FAMILY VIOLENCE PROVISIONS? MIGRATION REGULATION 1994 The Migration Regulations Div 1.5 (Regulations 1.21-1.27)
  34. 34. WHAT IS FAMILY VIOLENCE? Migration Regulation – Regulation 1.21  Conduct (whether actual or threatened)  Towards the:  alleged victim OR  family member of the alleged victim/ perpetrator OR  Property of the alleged victim or a family member of the alleged victim/perpetrator  That causes the alleged victim to reasonably fear for, or be reasonable apprehensive about, his or her own wellbeing or safety
  35. 35. WHAT CONDUCT WILL FALL WITHIN THE DEFINITION OF FAMILY VIOLENCE? Sok v MIMIA (2005) FCAFC 56 provides that family violence includes a wide range of behaviour  Involves an abuse of power  Not limited to physical violence or threats of physical violence
  36. 36. WHAT IS REQUIRED TO PROVE FAMILY VIOLENCE?  Currently, regulation 1.23 of the Migration Regulations indicates that domestic/ family violence can be established using either judicial or non-judicial evidence. EVIDENCE OF FAMILY VIOENCE JUDICIALLY DETERMINED EVIDENCE NONJUDICIALLY DETERMINED EVIDENCE
  37. 37. JUDICIAL EVIDENCE EVIDENCE OF FAMILY VIOENCE JUDICIALLY DETERMINED EVIDENCE NONJUDICIALLY DETERMINED EVIDENCE INJUNCTION CONVICTION COURT ORDER  The 3 types of judicially determined evidence are found under regulation 1.23 in the Migration Regulations.
  38. 38. JUDICIAL EVIDENCE  If it is at all possible, it is better to provide the decision-maker with judicial evidence in order to prevent the claim from being referred to the independent expert under regulation 1.23(10).  If your evidence is determined judicially, then there is no need for non-judicial evidence.
  39. 39. TIMING  The Regulations state that the violence that led to the making of the injunction, court order or conviction must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.
  41. 41. JOINT UNDERTAKING  Under the Regulations, a joint undertaking made to a court by the applicant (alleged victim) and the sponsor (alleged perpetrator) in relation to proceedings in which an allegation of violence is before the court will be considered non- judicially determined evidence.  However, it is often difficult for this form of non-judicial evidence to be utilised successfully in a claim under the family violence provisions.
  42. 42. EVIDENCE  Under regulation 1.23(9), evidence presented in accordance with reg 1.24 must show that the applicant has suffered “relevant family violence”. Relevant family violence is defined in reg 1.21. “relevant family violence means conduct, whether actual or threatened, towards: (a) the alleged victim; or (b) a member of the family unit of the alleged victim; or (c) a member of the family unit of the alleged perpetrator; or (d) the property of the alleged victim; or (e) the property of a member of the family unit of the alleged victim; or (f) the property of a member of the family unit of the alleged perpetrator; that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.”
  43. 43. CHANGES TO NON-JUDICIALLY DETERMINED EVIDENCE  New non-judicial evidentiary provisions came into effect on 24 November 2012  From this date the required evidence in regulation 1.24 has been;  Statutory declaration from the spouse or de factor partner of the sponsoring spouse; and  the type and number of items of evidence as prescribed in Legislative Instrument IMMI 12/116 Evidentiary Requirements Paragraph 1.24(b) (the Legislative Instrument).
  44. 44. A) STATUTORY DECLARATION  Applicants are encouraged to use Form 1410; if this is not used then applicants must include the following information in a statutory declaration;  set out the allegation; and  name the person alleged to have committed the relevant family violence; and  if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:  name the person whom the conduct of the alleged perpetrator was towards; and  identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.
  45. 45. B) EVIDENCE IN LEGISLATIVE INSTRUMENT  The Legislative Instrument provides that a minimum of two items (and no more than one of each type) from the list in Schedule 1 be presented.  Schedule 1 lists each type of evidence and prescribes what information is to be provided in each type. It is important to note that the two documents do not necessarily have to relate to the same victim. For example, one document may relate to the partner of the alleged perpetrator (eg a statutory declaration of a psychologist), and another may relate to their dependent child (eg medical report).
  46. 46. GENUINE & CONTINUING RELATIONSHIP  Applicants seeking to rely on the special exception provisions after the relationship has ceased must also establish that the relationship was of a genuine and continuing nature until the relationship ended.  The decision maker must determine whether a spousal relationship existed under regulation 1.15A (for married relationship) or regulation 1.09A (for de facto relationship) of the Migration Regulation.
  47. 47.  In determining whether the requisite relationship existed, the decision maker must consider  all of the circumstances of the relationship, including:  financial aspects of the relationship,  nature of the household,  social aspects of the relationship and  nature of the persons’ commitment to each other (see subregulation 1.15A(3) in relation to a married relationship; see subregulation 1.09A(3) in relation to a de facto relationship). CONSIDERATIONS
  49. 49. WHAT ARE THE PROBLEMS WITH PROVING FAMILY VIOLENCE? Practically it can be very difficult to prove family violence  It is often conducted in the private sphere  It may be conducted in front of members that don’t see anything wrong with the conduct due to cultural differences  The vulnerability to coercion and control of victims whose migration status is uncertain http://www.alrc.gov.au/publications/6.%20Other%20Statutory%20Definitions%20of%20Family%20Violence%20/migration- legislation#_ftnref185
  50. 50. WHAT IF THE DECISION MAKER IS NOT SATISFIED THAT FAMILY VIOLENCE HAS OCCURRED?  The matter may be referred to an independent expert to determine whether family violence has occurred.  The decision maker MUST follow the decision of the independent decision maker, and for this reason is it VERY important that the strongest case possible is put forward to the decision maker
  51. 51. WHERE WILL A CASE BE REFERRED TO THE INDEPENDENT EXPERT?Only cases that rely on non-judicial evidence can be referred to the independent expert. The cases may be referred where there are:  Questions of credibility  Information in application is vague or ambiguous  Where family violence is not committed against the alleged victim but a family member, and the alleged victim is having trouble providing sufficient evidence as resulted in them being reasonably fearful or apprehensive about their own wellbeing and safety  Dismissed or lost court cases  Conflicting evidence (i.e. a statutory declaration from a professional that conflicts with a statutory declaration from another professional)  The circumstances of the relationship (amount of time in Australia, amount of time spent apart, the length of the relationship etc.)  Sequence of events (i.e. where the client notifies the department that the relationship has ended but does not initially state that family violence has occurred)
  52. 52. PROBLEMS WITH BEING REFERRED TO THE INDEPENDENT EXPERT  Denial of procedural fairness  Interrogation, rather than an assessment
  53. 53. FAMILY VIOLENCE AND RAILS Family violence is –  A priority  The highest caseload of RAILS  A core service delivery of RAILS RAILS will –  Provide legal support  Provide non-legal support  Abide by professional obligations
  54. 54. QUESTIONS?
  55. 55. QUIZ TIME!
  56. 56. QUESTION 1  What conduct could fall within the definition of family violence – remembering that the behaviour must cause the person to reasonably fear or be reasonably apprehensive about their wellbeing or safety?
  57. 57. ANSWER  Physical abuse  Emotional abuse  Financial control
  58. 58. QUESTION 2  Why can it be hard to prove family violence?
  59. 59. ANSWER  Occurs privately  Language barriers  Individual has been threatened  No trust in the authorities to help
  60. 60. QUESTION 3  How can we avoid the case being sent to the independent expert?
  61. 61. ANSWER  Using judicial evidence where possible  Strong evidence if having to rely on non-judicial evidence
  62. 62. QUESTION 4  What are the main four considerations for a genuine partner relationship
  63. 63. ANSWER  Financial aspects – joint ownership; shared finances/bills; shared legal commitments  Nature of the household – living arrangements; joint responsibility of children  Social context – social acceptance as a couple; public declarations of relationship; joint travel  Nature of commitment to each other – knowledge of partners background; future plans; inclusion into legal documents (e.g. wills)
  64. 64. QUESTION 5  What challenges might a visa applicant encounter in proving a genuine relationship? What solutions would you suggest to counteract these?
  65. 65. ANSWER Some examples are… • Scared witnesses afraid evidence might be leaked; • A potential lack of evidence resulting from a restrictive and controlling relationship; • The applicant may have forgotten, or may not be aware of, evidence would could prove crucial to the consideration of a genuine relationoship. Did you think of any others?
  66. 66. QUESTION 4  Why do we want to avoid the case being sent to the independent expert?
  67. 67. ANSWER  Potential re-victimisation due to interrogation by the independent expert  Lack of natural justice
  68. 68. QUESTION 5  What are the 2 ways to establish family violence?
  69. 69. ANSWER  Judicial and non-judicial evidence.
  70. 70. QUESTION 6  What are the 3 types of Judicial evidence?
  71. 71. ANSWER  Injunction, conviction & court order.
  72. 72. THANK YOU