The Migration Amendment (Family Violence Provisions for Skilled Visas Applications) Regulations 2024 marks a significant step in supporting victims of family violence within the skilled visa framework. This reform introduces specific protections for secondary applicants and allows them to obtain a visa if their relationship with the primary applicant ends due to family violence.
The Migration Amendment (Family Violence Provisions for Skilled Visas) Regulations 2024 introduces changes to the Migration Regulations 1994, adding family violence provisions to the criteria for certain Skilled visas. These changes enable secondary applicants, such as spouses, de facto partners, or dependents, to obtain a visa if their relationship with the primary applicant ends due to family violence.
A visa can only be granted if the primary applicant receives their visa or is refused on grounds including family violence. This conduct does not need to involve family violence specifically against a family member listed in the visa application. It could include violence toward another individual not included in the application.
In visa applications, the primary applicant is the individual meeting the main criteria for visa approval, while secondary applicants include family members, such as a spouse, de facto partner, or children.
Previously under the Migration Regulations family violence provisions were limited to Partner visas (Subclasses 820/801 and 309/100) and the Global Talent visa (Subclass 858).
Typically, when a relationship between a primary applicant and their partner ends, the partner ceases to qualify as a family unit member, making them ineligible for a visa grant. However, in cases where family violence is committed by the primary applicant against their partner or family members, the partner may feel pressured to stay in a harmful relationship to secure a visa. These new regulations allow secondary applicants to claim family violence and potentially qualify for a visa, provided the primary applicant’s visa is approved or denied due to family violence.
The family violence provisions for skilled visas aim to protect visa applicants with existing ties to Australia. It does not provide permanent residency to those who are not in a relationship with a permanent visa holder, live outside Australia, and have not entered Australia since submitting their visa application. Applicants who have not been physically present in Australia since lodging their application cannot access these family violence provisions. This ensures that the provisions apply only to those who have established connections within Australia.
The Regulations update the family violence provisions in the Global Talent visa and expand these protections to include the following visas:
Employer Nomination Scheme (Subclass 186);
Regional Sponsored Migration Scheme (Subclass 187);
Skilled – Independent (Subclass 189);
Skilled – Nominated (Subclass 190);
Permanent Residence – Skilled Regional (Subclass 191); and
Skilled Regional (Subclass 887).
The Regulations revise the “one fails, all fail” criteria, which require all family unit members (whether included in a visa application or not) to meet public interest and special return criteria for visa approval. The amendments ensure that these criteria apply to all applicants and family members, even if they are no longer part of the primary applicant’s family unit when the visa decision is made. These changes maintain the intended functionality of the “one fails, all fail” principle.
The Regulations introduce two key changes benefiting secondary applicants experiencing family violence. First, they waive the requirement to pay the second Visa Application Charge (VAC) instalment for applicants without functional English, recognising the financial hardship faced by victims of family violence. Second, the amendments improve access to merits review for secondary applicants. If a family violence claim is accepted but their visa is refused due to the primary applicant’s refusal, they can seek review without paying a fee. However, fees apply if refusal reasons are unrelated to the primary applicant’s outcome.
Understanding Domestic and Family Violence in Australia and Your Rights as a Visa Holder
Domestic and family violence is a serious and unacceptable offence in Australia. It affects individuals from all walks of life and can occur in many forms, including physical, emotional, financial, and psychological abuse. If you are experiencing domestic violence, it is essential to know that you are not alone and that there are legal protections and resources available to support you, regardless of your visa status.
What is Domestic and Family Violence?
Domestic and family violence refers to any behaviour or conduct that causes a person to fear for their safety or well-being. This violence can extend not only to the individual but also to their family members, pets, or property. In Australia, domestic and family violence is recognised as a crime, and the government has strict laws against such behaviour.
Domestic violence can take many forms, which may include:
Physical violence: This can include hitting, slapping, choking, or any other form of bodily harm.
Sexual assault: Any form of sexual abuse or coercion within the relationship.
Verbal or emotional abuse: This includes name-calling, belittling, threatening, or other behaviors that undermine a person’s self-esteem and mental health.
Controlling behavior: Where one partner seeks to dominate the other, including controlling their movements, decisions, or social interactions.
Stalking: Repeatedly following, watching, or contacting someone against their will.
Technology-facilitated abuse: This includes the misuse of digital devices, social media, or other technologies to harass or intimidate someone.
Financial abuse: Preventing someone from accessing their own money or controlling their financial resources.
Abuse of the elderly: Mistreating older family members, whether through physical, emotional, or financial means.
Forced isolation or economic deprivation: Limiting a person’s contact with the outside world or withholding resources, including dowry-related abuse.
If you are experiencing any of these forms of abuse, it is important to seek help immediately, as your safety is the highest priority.
Your Rights as a Victim of Domestic and Family Violence in Australia
One of the critical aspects of Australian law is that no one should feel forced to stay in a relationship where they are at risk of harm. The Australian Government has a zero-tolerance policy toward domestic violence and is committed to supporting victims, regardless of their immigration status. The Department of Home Affairs recognises the challenges faced by victims of domestic violence and provides avenues for support and assistance in navigating your immigration situation.
Informing the Department of Domestic Violence
If your situation changes due to domestic violence, it is essential to inform the Department of Home Affairs. You may be eligible for assistance or visa provisions that allow you to remain in Australia despite the breakdown of your relationship.
There are several ways to notify the Department about changes to your relationship status:
- Complete the online form for notifying the Department that your relationship has changed.
- Submit Form 1022 (Notification of Changes in Circumstances).
- Contact your processing officer directly to inform them of the change.
- Call 131 881 for assistance.
- Send a letter to your nearest Department office.
This process is confidential, and the Department will not take action unless required by law to do so, such as in cases of child protection.
Visa Cancellations and Protections for Victims of Domestic Violence
Many victims of domestic violence fear that their visa status may be impacted by the breakdown of their relationship. It is essential to understand that only the Minister or a delegated officer has the authority to cancel or refuse a visa. Importantly, the person who has committed the domestic violence (referred to as the perpetrator) cannot cancel your visa.
The Department of Home Affairs has a clear policy that prevents the cancellation of a temporary visa solely because of domestic violence. If you are experiencing domestic violence, the Department does not encourage individuals to remain in a dangerous or abusive relationship for the sake of securing a visa outcome. Your safety is paramount, and support services are available to help you navigate this challenging situation.
If you are the perpetrator of domestic violence, the Department may take action to refuse or cancel your visa. However, this action will only occur in accordance with Australian immigration laws.
To learn more details about this topic, click on Domestic and family violence and your visa page created by The Department of Home Affairs.
If you have any questions or need assistance with your migration circumstances, please contact Amity Lawyers on 03 8658 5959 and speak to one of our experienced immigration lawyers or submit an online enquiry.
LEGAL DISCLAIMER: Content in this blog does not constitute immigration or legal advice, is not intended as a substitute for such advice and must not be relied upon as such. The content is designed to provide an informative guideline (current at the time of publication and subject to changes) for general informational purposes. Please consult our Migration Lawyers for professional advice before you make any type of application.
