1.
FAMILY VIOLENCE
& PARTNER
MIGRATION
RAILS Seminar – 2015

2.
SPOUSE AND PARTNER VISAS

3.
BACKGROUND
 Australia’s migration program as a whole is divided into two distinct programs
for permanent migrants:
 Skilled and family migrants
 Humanitarian program

4.
INTRODUCTORY QUESTIONS

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.
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.
QUESTION 2
How many people were granted partner visas in the 2013-14 year?
a) 47 752
b) 61 387
c) 85 276

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

18.
GENUINE PARTNER RELATIONSHIP

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.
GROUP DISCUSSION
 What considerations do you think the decision maker would take into
account when assessing a relationship as “genuine”?

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.
FINANCIAL ASPECT OF RELATIONSHIP
 Joint names on a lease/mortgage;
 Being a guarantor for the partner’s debt;

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.
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.
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.
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.
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.
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.
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.
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

31.
FAMILY VIOLENCE & THE
MIGRATION REGULATION

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.
WHERE ARE THE FAMILY
VIOLENCE PROVISIONS?
MIGRATION REGULATION 1994
The Migration Regulations Div 1.5 (Regulations 1.21-1.27)

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.
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.
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.
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.
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.
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.

40.
EVIDENCE OF FAMILY
VIOENCE
JUDICIALLY
DETERMINED
EVIDENCE
NONJUDICIALLY
DETERMINED
EVIDENCE
STATUTORY
DECLARATION
EVIDENCE JOINT
UNDERTAKING
ITEMS FROM
THE
INSTRUMENT
NON-JUDICIAL EVIDENCE

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.
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.
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.
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.
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.
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.
 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

48.
GATHERING THE EVIDENCE TO
PROVE FAMILY VIOLENCE

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.
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.
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.
PROBLEMS WITH BEING
REFERRED TO THE INDEPENDENT
EXPERT
 Denial of procedural fairness
 Interrogation, rather than an assessment

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.
QUESTIONS?

55.
QUIZ TIME!

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.
ANSWER
 Physical abuse
 Emotional abuse
 Financial control

58.
QUESTION 2
 Why can it be hard to prove family violence?

59.
ANSWER
 Occurs privately
 Language barriers
 Individual has been threatened
 No trust in the authorities to help

60.
QUESTION 3
 How can we avoid the case being sent to the independent expert?

61.
ANSWER
 Using judicial evidence where possible
 Strong evidence if having to rely on non-judicial evidence

62.
QUESTION 4
 What are the main four considerations for a genuine partner
relationship

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.
QUESTION 5
 What challenges might a visa applicant encounter in proving a genuine
relationship? What solutions would you suggest to counteract these?

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.
QUESTION 4
 Why do we want to avoid the case being sent to the independent
expert?

67.
ANSWER
 Potential re-victimisation due to interrogation by the independent
expert
 Lack of natural justice

68.
QUESTION 5
 What are the 2 ways to establish family violence?

69.
ANSWER
 Judicial and non-judicial evidence.

70.
QUESTION 6
 What are the 3 types of Judicial evidence?

71.
ANSWER
 Injunction, conviction & court order.

72.
THANK YOU