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Changes to Evidence Required to Prove Family Violence

The contents of this article are correct as at 3 December 2012.

The Migration Regulations 1994 contain pathways to permanent residency for people who have applied for a partner or a business skills visa and can prove that they have been the victim of family violence by their partner. The Migration Regulations require permanent visa applicants relying on family violence provisions for grant of the visa to produce judicially determined, or non-judicially determined, evidence that the family violence has occurred.

In November 2012 the Family Violence provisions to the Migration Act 1958 were amended to broaden the evidentiary requirements for applicants who make non-judicially determined claims of family violence. Non-judicially determined claims are claims of family violence made by visa applicants who have not had their claims tested in a court of law. In those cases DIAC will accept other evidence to assess whether family violence has occurred.

From November 2012 the following evidence will be required to prove a non-judicially determined claim of family violence:

  1. A statutory declaration using DIAC Form 1410, or a generic statutory declaration, completed by the victim of family violence, which sets out the allegations of family violence and names the offender; and

  2. At least two of the following:
    1. Medical report, hospital report, discharge summary or statutory declaration that is made by either a person who is
      • registered as a medical practitioner and is performing the duties of a medical practitioner, or
      • registered as a nurse within the meaning of section 3 of the Health Insurance Act 1973 and is performing the duties of a registered nurse
    2. Either a report, record of assault, witness statement or statutory declaration that is made by:
      • a police officer of a State or Territory
      • a police officer of the Australian Federal Police
      OR a witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation.
    3. Report or statutory declaration made by an officer of:
      • a child welfare authority, or
      • a child protection authority of a State or Territory.
    4. Letter or assessment report made by:
      • a women’s refuge, or
      • family/domestic violence crisis centre
      on the organisation’s letterhead.
    5. Statutory declaration made by:
      • a member of the Australian Association of Social Workers, or
      • a person who is eligible to be a member of that Association
      who has provided counselling or assistance to the alleged victim while performing the duties of a social worker.
    6. Statutory declaration made by a registered psychologist in a State or Territory who has treated the alleged victim while performing the duties of a psychologist.
    7. Statutory declaration made by a family consultant appointed under the Family Law Act 1975 or a family relationship counsellor who works at a Family Relationship Centre listed on the Australian Government Family Relationships website.
    8. Statutory declaration or a letter on the school’s letterhead made by a school counsellor or school principal in their professional capacity.

The Migration Regulations specify certain information which must be included in the statutory declarations provided by the expert witnesses listed at 2(i)-(viii).

While only two of the above types of evidence are required for DIAC to process a claim of family violence, applicants will have better chances of securing a permanent visa if they provide as many of the above types of evidence as possible to prove the violence has occurred.

Where DIAC has reasonable doubt about a non-judicially determined claim of family violence the department may refer the evidence to an independent expert for assessment. An independent expert’s opinion must be accepted by DIAC.

The family violence provisions have been included in the Migration Regulations to ensure that victims of family violence are not left dependent on their violent partner for their visa status in Australia. If you are a partner or business skills visa applicant and are experiencing family violence you may be eligible to apply for a permanent visa without having to stay in the relationship.

If you need assistance with the preparation of a family violence claim as part of a partner or business skills visa application or have any questions in relation to the above, please contact us.