| Practical
Guide for Migrant Women
This information is for immigrant women on
temporary visas, who have separated or are considering separating
from their sponsoring partner.
Other more general, non gender specific information about
domestic violence immigration law and partner visas is available
on alternative pages of this website
and the library
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PLEASE NOTE
The Migration Act and Regulations are complex. You should seek
advice from the Refugee and Immigration Legal Service (RAILS) on
38463189 if you are a migrant women on a temporary partner visa
and your relationship has ended. RAILS can give you advice about
your immigration status and support in providing the necessary documentation
to the Department of Immigration. In some cases, depending on your
financial circumstances and the merits of your case, a RAILS caseworker
may be able to take on your case and act as your migration agent.
Alternatively, if you can afford it, you can contact a private
migration agent and ask them to give you advice and if necessary,
represent you. Details of private migration agents can be found
the website of the Migration
Agents Registration Authority.
See the RAILS
Information Sheet – The Domestic Violence Provisions for
information about other services and organisations that may be able
to assist you.
Overview
Usually, if you have been sponsored to come to Australia by your
partner, and your relationship with your partner ends prior to her
permanent visa being granted, you cannot obtain permanent residence.
However there are exceptions to this where:
- there has been domestic violence by your sponsoring partner;
or
- there is are certain shared arrangements concerning a child
of your relationship; or
- your sponsoring partner has died.
More information about these exceptions can be found in the RAILS
Information Sheet – Partner Visas After the Relationship Ends.
Accessing Exceptions
The
Domestic Violence Exception
The Child of
Relationship Exception
The
Death of Partner Exception
The Domestic
Violence Exception
If you can prove that domestic violence has been committed against
you by your sponsoring partner and that the relationship was genuine
until the time of separation you may still be able to obtain permanent
residence, despite the break down in your relationship.
Depending on the visa you are on, domestic violence by your sponsoring
partner against a child or a member of the family unit may also
enable you to access the domestic violence provisions. See RAILS
Information Sheet – Partner Visas After the Relationship Ends
for more information about this.
If you are seeking to rely on the domestic violence exception,
you will need to provide the Department of Immigration with evidence
of:
- the genuineness of your relationship with your partner prior
to separation; and
- domestic violence (against you, a child or member of the family
unit, depending on the visa held by you).
Under the domestic violence provisions of the Migration Regulations
domestic violence can be proven by either judicial or non judicial
evidence.
RAILS
Information Sheet – The Domestic Violence Provisions provides
more information about the evidence required to prove domestic violence
and genuineness, prior to the grant of a permanent partner visa
under this exception.
Relying on the Domestic Violence Exception
- Notifying the Department of Immigration
about your change in circumstances and any change of address.
Visa applicants are obliged to notify the Department of Immigration
as soon as practicable, in writing, about any change of circumstance.
If you are on a temporary partner visa and separate from your
partner/spouse you must notify the Department of Immigration of
this. You can notify the
Department of Immigration of your change of circumstances using
the RAILS
Sample Change of Circumstances letter. Please note that this
letter is a sample only and
you will have to fill in many of the details yourself, according
to your specific circumstances. You should keep a copy of any
letter you send. Sending the letter by certified mail will give
you confirmation that the letter has been received.
You must also notify the Department of Immigration of any change
of address at which you intends to live for 14 days or more and
the period of proposed residence. You should complete a Form
929 Change of Address and send it to the Department. If you
are unsure how long you will remain in your new address you should
just put “indefinitely” or “until further notice”
for the period of proposed residence. You should keep a copy of
any form you send and sending it certified mail will give you
confirmation that it has been received.
- Requesting an extension of time
from the Department of Immigration if this is necessary.
The Department of Immigration often writes a standard letter to
people on temporary partner visas who have separated from their
sponsoring spouse, stating that evidence of domestic violence
and genuineness must be provided within a certain time (often
35 days).
If this is insufficient time you will need to
telephone or write to the Department requesting an extension.
In a letter or by telephone, you should explain to the Department
why you need an extension and specify the length of extension
you need.
You should ask the Department to confirm any
extension given in writing. You can request an extension using
the
RAILS Sample Request for Extension letter. Please note that
this letter is a sample only
and you will have to fill in many of the details yourself, according
to your specific circumstances. You should keep a copy of any
letter you send. Sending the letter by certified mail will give
you confirmation that the letter has been received.
- Providing evidence of domestic
violence.
You can prove domestic violence either through judicial (Court
determined) evidence or non-judicial evidence (usually statutory
declarations).
Judicial Evidence – Court Evidence
A final protection order from the Magistrates Court will be
sufficient evidence of domestic violence. There are also other
Court orders that are evidence of domestic violence. For more
information about these see the RAILS
Information Sheet – The Domestic Violence Provisions.
You may need to go to your closest
Legal Aid Queensland office to get help to obtain a protection
order. Legal Aid Queensland can provide advice and in some
cases representation about family law or domestic violence
matters.
Legal Aid may also be able to provide women with referrals
to domestic violence court assistance workers.
Your local Community Legal Centre may also be able to provide
advice and/or assistance. Community Legal Centre contact details
can be accessed via Legal Aid’s website on www.legalaid.qld.gov.au
or by calling 1300 65 11 88.
Non Judicial Evidence - Statutory Declarations
If you cannot obtain a protection order or some other Court
order, you will need to provide three statutory declarations
(two made by competent persons and one made by you). A police
record of assault can be provided instead of one of the competent
person’s statutory declarations.
Competent Persons Statutory Declarations
Information about the people who qualify as competent persons
is provided in the
RAILS Information Sheet – The Domestic Violence Provisions.
Your Statutory Declaration
As well as providing statutory declarations from competent
persons you will need to provide your own statutory declaration.
You can use either the Department of Immigration
Form 1040 or the RAILS
Sample Applicant Statutory Declaration . Please note
that this document is a sample
only and you will have to fill in many of
the details yourself, according to your specific circumstances.
If you use the Sample Applicant Statutory Declaration, you
will need to sign each page of the statutory declaration in
the presence of a person prescribed by the Statutory Declarations
Act 1959 and Regulations and that person will also need to
sign each page. Prescribed persons include justices of the
peace and solicitors. A full list of prescribed persons can
be found at http://scaleplus.law.gov.au/html/pastereg/browse/TOC.htm
If the violence has been committed against you, you must
answer Parts A and B of the Form 1040 and sign Part E in front
of a person prescribed by the Statutory Declarations Act 1959
and Regulations. You must include in Part B:
- The allegation of domestic violence that you are making;
- The effect this has had on you (in particular if the
violence or threats of violence have caused you or a family
member to fear for your personal well being or safety you
should include that);
- The name of the person you say has committed the domestic
violence.
If the violence has been committed against a child or member
of the family unit, you must answer Parts A and C of the Form
1040 and then sign Part E in front of a person prescribed
by the Statutory Declarations Act 1959 and Regulations. You
must include in Part C:
- The name of the person you say has suffered the domestic
violence;
- Your name and your relationship to the person who has
suffered the domestic violence;
- The name of the person who you say has committed the domestic
violence;
- The allegation of domestic violence that you are making;
- The evidence which you are basing your allegation on.
- Providing evidence of genuineness
If possible you should provide the Department of Immigration
with documentary evidence of the genuineness of your relationship
prior to your separation from your spoouse. The
RAILS Information Sheet – The Domestic Violence Provisions
provides details of the kinds of documents that can be provided.
You can describe the evidence in a dated covering letter or
in your statutory declaration (see below).
You should describe in a statutory declaration the history
of your relationship with your sponsoring partner and why
you consider your relationship to have been a genuine and
continuing one, up until the time you separated.
If you wish, you can also describe your documentary evidence
of genuineness in this statutory declaration and attach the
documents to the statutory declaration. If you decide to attach
the documents to a statutory declaration, the person witnessing
your statutory declaration will need to witness (sign) each
document.
If you are providing statutory declarations (rather than
a protection order or some other Court order) as evidence
of domestic violence then you can include the information
about the genuineness of your relationship in your statutory
declaration about the domestic violence you suffered. Even
if you are relying on judicial evidence of domestic violence
(such as a protection order or some other Court order) you
should still make a statutory declaration about the genuineness
of your relationship and the domestic violence suffered.
You can use the RAILS
Sample Applicant Statutory Declaration
or alternatively the Department of Immigration Form
1040. If you use the Form 1040 you will need to include
extra pages for the information about genuineness, as the form
does not provide space for this.
You should also try to provide the Department of Immigration
with two statutory declarations from witnesses who are able
to say they knew both you and your spouse while you were together
and can confirm that they believed the relationship to be
genuine. The Department of Immigration
Form 888 can be used by these witnesses.
- Sending your documentation to
the Department of Immigration
You should send
- your original statutory declaration; and
- a certified copy of your final protection order or
other Court order; or
- the original copies of the competent persons’
statutory declarations; and
- any Form 888s you have obtained; and
- your documentary evidence of genuineness
to the Department of Immigration, with a dated covering letter
addressed to:
Officer in Charge
Permanent Residence Section
Department of Immigration
GPO BOX 9984
BRISBANE QLD 4001
If some documents are ready before others, you can send them
with separate covering letters. However, once you believe
all your documentation has been provided you should state
in your final letter that you believe you have now provided
all the relevant documentation and that you are eligible for
a grant of permanent residence under the domestic violence
provisions. You can adapt the RAILS
Sample Applicant Covering Letter . Please note that this
letter is a sample only
and you will have to fill in many of the details yourself,
according to your specific circumstances. You should keep
a copy of any letter you send and you should also keep a copy
of all the enclosures. Sending the letter and the by certified
mail will give you confirmation that the letter and enclosed
documents have been received.
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The Child of Relationship
Exception
If you and your sponsoring spouse have certain shared arrangements
in respect of a child or children then you may be able to obtain
permanent residence even though your relationship with the sponsoring
spouse has ended. You will not need to prove domestic violence (if
there has been any). However, you will still need to prove that
the relationship with your spouse was genuine prior to separation.
You must provide evidence that she has, in respect of a child or
children:
either
(i) custody or joint custody, or access; or
(ii) a residency order or contact order made under the Family Law
Act 1975
and
evidence that your sponsoring spouse either
(i) has been granted joint custody or access by a court; or
(ii) has a residence order or contact order made under the Family
Law Act 1975; or
(iii) has an obligation under a child maintenance order made under
the Family Law Act 1975 or any other formal maintenance obligation
(such as a notice of acceptance, assessment and registration from
the Child Support Agency of the Australian Taxation Office).
Relying on the Child of Relationship Exception
If you think you might be able to rely on this exception, you
should telephone RAILS on 38463189 for advice. You may need to
seek help to obtain the evidence of shared arrangements regarding
a child from your nearest Legal
Aid Queensland office or from a Community Legal Centre in
your area.
Legal Aid Queensland can provide advice and in some cases representation
about family law or domestic violence matters. Your local Community
Legal Centre may also be able to provide advice and/or assistance.
Community Legal Centre contact details can be accessed via Legal
Aid’s website or by calling 1300 65 11 88
As well as providing evidence of the shared arrangements regarding
a child, you will have to prove the genuineness of your relationship,
in the same way as you would under the domestic violence exception
(see above). You will also need to notify the Department of Immigration
in writing of any changes in your circumstances or any change of
address.
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The Death of
Partner Exception
If you are on a temporary partner visa and your sponsoring partner
dies before you are granted permanent residence, you may still be
able to obtain permanent residence if it can be proven that you
would have continued to be the partner of the sponsor if the sponsor
had not died. In some cases you must also prove that you have developed
close business, cultural or personal ties in Australia. You will
also still have to prove that your relationship was genuine and
continuing prior to the death of your partner.
Relying on the Death of Partner Exemption
If you think you might be able to rely on this exception, you
should telephone RAILS on 3846 3189 for advice. RAILS can give
you advice about whether you can access the exception and about
the evidence required, for example a death certificate and evidence
of the ties developed by you in Australia.
As well as providing evidence of the death of your sponsoring
partner, you will have to prove the genuineness of your relationship,
in the same way as you would under the domestic violence exception
(see above). You will also need to notify the Department of Immigration
in writing of any changes in your circumstances or any change
of address.
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