REMOVAL OF RECENT MIGRANTS: DOMESTIC VIOLENCE AND EARLY SEPARATION

normally if spouse migrants separate within two years of entering Australia, they are not permitted to stay.

The Domestic Violence Provisions of Australia’s migration program allow applicants for permanent residence to continue with their application after the breakdown of their relationship if they or other members of their family have experienced domestic violence by their spouse or de facto partner. These provisions were introduced because of concerns that some spouses might feel compelled to remain in abusive relationships rather than end the relationship and be forced to leave Australia.

What the Department Requires

The two types of evidence the Department of Immigration will accept are:-

Judicial evidence

One of the following:

• orders or injunctions for personal protection made against a spouse or partner under the Family Law Act or an Australian State or Territory law;
• a conviction of the spouse or partner for assault against the visa applicant or their dependant (or a finding of guilt); or
• evidence of joint undertakings to a court made by the visa applicant and the spouse or partner that relate to an allegation that the spouse or partner has committed an act of violence against the visa applicant or her/his dependant.

Non-judicial evidence

Both of the following:

• a statutory declaration by the applicant which sets out the domestic violence and names the person who committed it, and
• two statutory declarations, completed by competent persons in two different professions, that:

  o set out the evidence on which they have based their opinion that domestic violence has occurred, and

  o name the person alleged to have committed it.

A police record of assault can be provided as an alternate for one of the latter statutory declarations.

Competent persons

“Competent persons” are certain authorised professional people. They are, to list a few:

• doctors and psychologists;
• registered nurses;
• court counsellors under the Family Law Act;
• managers or coordinators of women’s refuges;
• managers or coordinators of domestic violence crisis and counselling services

Various other agencies and professionals who are “competent persons” are on the Department of Immigration website.

Important issues to consider

It is important to remember that if your client wishes to remain in Australia and has suffered violence, it is not essential that they obtain an Intervention Order to support their application - there are other options as referred to above.

The Court process can be a distressing and stressful reliving of the trauma of domestic violence and can in some cases be avoided.

Renai Mitchell, Family Law Group