New Non-Judicial Types of Evidence That Can Be Used for Family Violence Claims
The Department of Home Affairs (‘the Department’) has released an updated legislative instrument providing for more expanded forms of non-judicial evidence in support of family violence claims associated with Partner visa applications. Non-judicial evidence is the common category utilised by those visa applicants who have not gone through the courts to enforce orders or have had a related criminal prosecution against their partner.
Division 1.5 in Part 1 of the Migration Regulations 1994 (Cth) (‘the Regulations’) outlines special provisions which relate to the inclusion of non-judicially determined claims of family violence on visa applications.
Previously, the Migration Regulations 1994 – Evidentiary Requirements – IMMI 12/116 (F2012l02237) outlined the type and number of items of evidence that needed to be provided by Applicants when claiming family violence under the Regulations. However, commencing on 31 March 2023, the Migration (Specification of evidentiary requirements – family violence_ Instrument (LIN 23/026_ 2013 (‘the new Instrument’) has repealed the previous instrument.
Subregulation 1.23(9) of the Regulations specifies the requirements that must be met in order to include a non-judicially determined claim of family violence on a visa application, namely:
The applicant, or another person mentioned in the criterion, has suffered family violence; and
The alleged victim is:
The spouse or de facto partner of the alleged perpetrator; or
The dependent child of the alleged perpetrator, the spouse or de facto partner of the alleged perpetrator, or both the alleged perpetrator and his or her spouse or de factor partner; or
A member of the family unit of the spouse or de facto partner of the alleged perpetrator; and
The member of the family unit must have made a combined visa application with the spouse or de facto partner.
The alleged victim or another person on their behalf has presented evidence in accordance with subregulation 1.24 that the alleged victim suffered family violence committed by the alleged perpetrator.
Subregulation 1.24 outlines the evidence that must be presented and includes a statutory declaration made by the spouse or de facto partner of the alleged perpetrator and the specific number and type of evidence that has been specified by the Minister in a legislative instrument.
The current legislative instrument specifying the number and types of evidence has been outlined below.
The Purpose of These Legislative Changes
According to the explanatory statement, these legislative changes were enacted in response to stakeholder feedback as well as to uphold the Australian government’s commitment to supporting victims of family violence.
The changes to the types of evidence acceptable for the purposes of satisfying subregulation 1.23(9)(c) were made in hopes to improve the accessibility to the family violence provisions in the Regulations.
Types of Evidence
Section 5 of the new Instrument requires that a minimum of two items of evidence, listed in Schedule 1, must be submitted and they must be different types of evidence. The Schedule 1 table of types of evidence has been extracted below.
What has Changed?
The new Instrument has implemented 5 significant changes according to the explanatory statement, namely:
Midwives have been added to the list of medical professionals that can provide documentary evidence of family violence;
Risk assessment and reports have been added as items of evidence that can be provided in lieu of a statutory declaration;
Community, multicultural and other crisis services that provide domestic and family violence assistance have been added to the list of support service providers that can provide documentary evidence of family violence;
This includes any organisation that provides domestic and family violence assistance or support, a list of these organisations can be found on Services Australia.
Previously it included only Women’s refugees and domestic and family violence crisis centres.
Clarifies that any documentary evidence is to be provided in the individual professional capacity; and
Removes the requirement for a statutory declaration to be provided by certain professionals.
For example, prior to the new Instrument, psychologists, family consultants, family relationship counsellors, school counsellors, and school principals were required to provide statutory declarations if they were to provide documentary evidence of family violence.
How Can Agape Henry Crux Assist
Contact us if you require any assistance in relation to acquiring a visa as a victim of family violence.
At Agape Henry Crux, our Accredited Specialist(s) Immigration Lawyers and our team of immigration lawyers and migration agents are specialised in handling highly complex matters. You may schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin, and Malay. If this isn’t your language, we can also help you arrange an interpreter.
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