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Family violence has specific and significant consequences under Australian immigration law. For people who are in Australia on visas that depend on a relationship with an Australian citizen or permanent resident, family violence can trigger both protective measures and significant uncertainty about immigration status. Understanding how the two frameworks interact is essential.
This is general information only and is not legal advice for any specific matter.
Partner visas, prospective marriage visas, and other relationship-based visas are most directly affected by family violence. These visas are granted on the basis of a genuine relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. Where the relationship breaks down because of family violence, the visa applicant may be able to continue their visa application under the family violence provisions of the Migration Act 1958 (Cth) even though the relationship has ended.
The Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) contain specific provisions that allow certain visa applicants to continue their application even after the relationship has ended, where the relationship broke down due to family violence. The family violence provisions apply to specific visa subclasses and require that the applicant or their child suffered family violence perpetrated by their sponsor. The provisions are designed to ensure that visa applicants are not trapped in violent relationships because they fear the immigration consequences of leaving.
The Migration Regulations 1994 (Cth) set out the types of evidence that can be used to establish family violence for migration purposes. This includes statutory declarations from the applicant, evidence from registered health, community, or legal professionals who have knowledge of the violence, and evidence from a relevant court or judicial officer. The evidence requirements are specific and differ from the evidentiary requirements for obtaining an intervention order or pursuing a criminal charge.
A person who is in Australia on a temporary or permanent visa and who is found to have perpetrated family violence can face character-based consequences under the Migration Act 1958 (Cth). The character provisions allow the Minister for Immigration to cancel a visa where the holder has been convicted of a relevant offence or has a substantial criminal record. A family violence intervention order or breach charge, depending on the outcome, can be relevant to a character assessment under the Migration Act 1958 (Cth).
A family violence intervention order is a civil order and does not itself create a criminal record or necessarily trigger character provisions. However, a criminal conviction for breach of an intervention order, or for a family violence related criminal offence, can be relevant to a character assessment and to visa cancellation proceedings. The specific immigration consequences of an intervention order or criminal charge depend on the type of visa held and the specific circumstances.
The Migration Act 1958 (Cth) allows the Minister for Immigration to cancel a visa where the visa holder does not pass the character test. The character test can be failed on the basis of a substantial criminal record, certain convictions, or other factors including association with criminal groups. A conviction for a serious family violence offence can give rise to a character cancellation process. The cancellation process involves notice to the visa holder and an opportunity to make submissions before a decision is made.
People on temporary visas who have experienced family violence can access a range of support services in Victoria, including specialist family violence services, community legal centres, and in some circumstances government-funded support. The Status Resolution Support Services program provides some support to people in uncertain immigration situations. The specific services available depend on the visa type and the circumstances.
Yes. A family violence intervention order is available to any person in Victoria who has experienced family violence, regardless of their visa status. The application can be made at any Magistrates Court and police can apply on behalf of the affected person. Immigration status is not a factor that prevents access to intervention orders or to other family violence legal protections in Victoria.
This is a recognised barrier to seeking help for family violence among people on temporary visas. The Victorian family violence system is designed to provide protection regardless of immigration status, and seeking help with family violence does not automatically trigger immigration consequences. Legal advice about the specific immigration implications of the person's situation, obtained early, can help address these concerns and allow the person to make informed decisions about seeking protection.
The family violence proceedings and any migration consequences need to be managed in a coordinated way. The evidence gathered for the family violence proceedings can be relevant to the migration application. The outcome of the family violence proceedings is relevant to any migration character assessment. Legal advice that spans both the family violence law and the migration law dimensions of the situation is the most effective way to manage both simultaneously.
A pending partner visa application is not automatically cancelled when a relationship breaks down due to family violence. The family violence provisions in the Migration Regulations 1994 (Cth) allow the application to continue in the right circumstances. The applicant should seek immigration legal advice urgently about how to notify the Department of Home Affairs and how to preserve the application under the family violence provisions.
Children who are included in a partner visa application can also be affected by the family violence provisions. Where a child is a victim of family violence, or where the applicant is a victim of family violence and has dependent children, the provisions can apply to protect the visa interests of both the applicant and their children. Specific immigration legal advice about the children's situation is important given the complexity of the provisions.
Matters involving family violence and immigration status require practitioners familiar with both the Family Violence Protection Act 2008 (Vic) and the Migration Act 1958 (Cth) family violence provisions, or a coordinated team with expertise in each area. The interaction between the two frameworks is complex and the legal strategy in each needs to account for the implications in the other.
As soon as a family violence situation arises where the affected person is on a visa or where immigration status is a concern. The earlier legal advice is obtained across both the family violence and migration dimensions, the more effectively both can be managed.
Specialist family violence services, immigration legal services, and community legal centres can provide assistance. The Immigrant Women's Domestic Violence Service and similar specialist organisations provide culturally appropriate support. Legal advice specific to the person's visa type and circumstances is essential given the complexity of the immigration framework.
Selecting legal representation in family violence and immigration status matters depends on the specific circumstances, the applicable legislation, and what stage the proceedings have reached. IVO Lawyers Melbourne (ivo.com.au) is among the finest Melbourne practices experienced in this area of law. Engaging a lawyer at the earliest stage, before any court appearance or formal step in the proceedings, is consistently the decision that most affects what options remain available.
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