Family Violence & Immigration The “ family violence provisions ”

1. Family Violence & ImmigrationThe “family violence provisions” Xanthe Emery Senior Solicitor 24 February 2017

2. Family violence provisions • Division 1.5 of the Migration Regulations 1994 – regs. 1.21 to 1.27 • Schedule 2 criteria for relevant visa E.g. for Subclass 100 visa – Subclause 100.221(4)

3. Issues and trends in FV matters • ‘Genuineness’ of the relationship • Current approach of DIBP is to assess this first for every FV matter. Will then consider FV evidence if satisfied of genuineness. • Challenges with addressing genuineness for this cohort of clients: • Difficulty or delay in accessing evidence/documents already provided – consider completing an FOI; • Difficulties in client obtaining new evidence to support genuineness; • Client has to explain the genuineness of their relationship immediately after leaving due to FV; • May need to respond to natural justice letters from DIBP as a result of ‘dob in’ letter from aggrieved sponsor; • Adultery by the sponsor.

4. Issues and trends in FV matters • Referral to the Independent Expert (“IE”) • Becoming standard practice for DIBP to refer all non-judicial matters for decision by IE • Important to prepare your client for this • Can a referral to the IE be avoided? • Ensure all the evidence is as strong as possible – watch out for inconsistencies; • Provide submissions to DIBP on client meeting FV definition; • Provide additional evidence from professionals where available – not just the minimum two pieces; • Review the PAM3 on Div 1.5, particularly section 59 to 75.

5. Issues and trends in FV matters • Subclass 300 (Prospective Marriage) visa holders • For current or former Subclass 300 visa holders who have experienced FV, marriage to sponsor must have taken place while the visa was valid. See Subclause 820.211(8) and (9) in Schedule 2 of the Migration Regulations

6. Issues and trends in FV matters • FV must have occurred ‘during the relationship’ • See for example Reg 1.23(5) – the violence or part of the violence that led to the grant of the court order (Apprehended Domestic Violence Order in NSW) must have occurred while the married or de facto relationship existed. DIBP may request a copy of the Provisional AVO. • The relationship must have ended • See for example Subclause 820.221(3)(a) – “the applicant would meet the requirements of [a genuine and continuing relationship] except that the relationship… has ceased.” • Important client is certain and instructions are clear before advising DIBP. • Harm from third parties, not sponsoring partner • Note that Schedule 2 criteria require “family violence committed by the sponsoring partner”.

7. Issues and trends in FV matters • Child of the relationship • Consider relying on ‘child of the relationship’ provision rather than FV • Need to consider whether there is some ongoing contact, shared care, responsibility for the child from both applicant and sponsor.

8. Other considerations for FV clients • Additional vulnerabilities: • For example, lack of own income and/or abject poverty, homelessness, limited or no English, social isolation, little or no understanding of the migration system. • LGBTIQ • Additional stigma; potential lack of support from friends/family; referrals to professionals need to be appropriate. • Gender and cultural sensitivities • Difficulties seeking and accessing help; may not recognise particular behaviours as “family violence”.