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Practical Guide for Women Support Workers
This information is for people supporting 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. People not registered
as Migration Agents are prohibited by the Migration Act from providing
immigration assistance and criminal penalties apply. Further information
is provided in the
RAILS Information Sheet – Restrictions on Providing Immigration
Assistance .
Support workers should refer any woman on a temporary partner visa
whose relationship has ended to the RAILS
telephone advice line for advice about her options, before making
contact with the Department of Immigration.
Alternatively, if the woman can afford a private migration agent,
support workers can assist the woman to find a registered migration
agent through the Migration
Agents Registration Authority website or ring RAILS for a referral
to a private agent.
Support workers can then work with RAILS or another migration agent
to assist women able to access the domestic violence provisions
or other provisions relevant to temporary partner visa holders,
as set out below.
Support workers can also refer women to the Immigrant Women’s
Support Service (IWSS) in Brisbane (Ph 38463490). RAILS works closely
with IWSS to support woman relying on the domestic violence provisions.
IWSS can assist women and support workers in regional Queensland,
for example by assisting women to access legal advice, to find refuge
accommodation and providing resources and assistance to support
workers writing competent persons statutory declarations (see below).
INFORMATION FOR SUPPORT WORKERS
Usually, where a woman has been sponsored to come to Australia
by her partner, and her relationship with her partner ends prior
to her permanent visa being granted, she cannot obtain permanent
residence. However there are exceptions to this where:
- there has been domestic violence by the sponsoring partner;
or
- there is are certain shared arrangements concerning a child
of the relationship; or
- the sponsoring partner has died.
More details about these exceptions are set out in the RAILS
Information Sheet – Partner Visas After the Relationship Ends
.
ACCESSING THE EXCEPTIONS
The Domestic Violence
Exception
Relying on the
Domestic Violence Provisions
The Child of Relationship
Exemption
The Death of Partner Exemption
The
Domestic Violence Exception
If a woman can prove that domestic violence has been committed against
her by her sponsoring partner and that the relationship was genuine
until the time of separation she may still be able to obtain permanent
residence, despite the break down in her relationship. Depending on
the visa she is on, domestic violence by the sponsoring partner against
a child or a member of the family unit may also enable the woman to
access the domestic violence provisions. RAILS
Information Sheet – Partner Visas After the Relationship Ends
provides further details about this.
Where a woman seeks to rely on the domestic violence exception,
she will need to provide the Department of Immigration with evidence
of:
• the genuineness of her relationship with her partner prior
to separation; and
• domestic violence (against her, a child or member of the
family unit, depending on the visa held by the woman).
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
detailed information about the evidence required to prove domestic
violence and genuineness, prior to the grant of a permanent partner
visa under this exemption.
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Relying on the Domestic
Violence Provisions
Information about the practical steps that a woman must take if
she wishes to rely on the domestic violence exceptions are provided
on the RAILS Resources for Migrant Women
page.
Specific support that you can provide is set out below:
- Providing evidence of domestic
violence
Judicial Evidence – Court Evidence
You can assist the woman to access services that will help her
obtain a final protection order or other judicial evidence of
domestic violence. For example you can assist the women to access
Court Assistance workers or the
Legal Aid Queensland office in your region.
Non Judicial Evidence - Statutory Declarations
If the woman cannot obtain judicial evidence, she will need
to provide three statutory declarations (two from competent
persons and one from herself). A police record of assault can
be provided instead of one of the competent persons statutory
declarations.
If you are a competent person you can provide a competent person’s
statutory declaration using the Department of Immigration’s
Form 1040.
Information about the people who qualify as competent persons
is provided in the RAILS
Information Sheet – The Domestic Violence Provisions.
You must complete questions 1, 2 and Part D of the form. You
can RAILS
Sample Competent Persons Statutory Declaration and attach
it in answer to Part D of Form
1040. Please note this document is a sample
only and will need to be adapted according to
your qualifications and role and the circumstances of the women
you are assisting.
The essential components that must be covered in a competent person’s
statutory declaration are:
- The basis of your claim to be a competent person;
- Whether in your opinion relevant domestic violence
has occurred (this means violence or a threat of violence to the
woman or the woman’s property, that has caused the woman
or a family member to fear for the woman’s personal well
being or safety);
- The name of the person who, in your opinion, has suffered the
domestic violence;
- The name of the person who, in your opinion, committed the
domestic violence; and
- The evidence upon which your opinion is based.
You may also be able to assist the woman to find another competent
person in her area, to provide a second statutory declaration.
- Providing evidence of genuineness
You can refer the woman to the information in the RAILS
Information Sheet – The Domestic Violence Provisions
about the sorts of documentary evidence that can be used to prove
the genuineness of her relationship.
It could be particularly useful to give this information to
women who are considering leaving their spouse, so that they
can take any necessary documents with them when they leave,
provided doing so will not jeopardise their safety.
Women should also try to provide the Department of Immigration
with two statutory declarations from witnesses who are able
to say they knew both partners whilst they 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. You may be able to support
the woman to make contact with friends who are able to complete
Form
888, provided this does not jeopardise the woman’s
safety.
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The Child of Relationship Exemption
If the woman and her sponsoring spouse have certain shared arrangements
in respect of a child or children then the woman may be able to
obtain permanent residence even though her relationship with the
sponsoring spouse has ended. The woman will not need to prove
domestic violence (if there has been any). However, she will still
need to prove that the relationship with her partner was genuine
prior to separation.
The woman 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 her 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).
Assisting Women Relying on the Child of Relationship
Exception
You should refer women who may be able to rely on this exception
to RAILS for advice. You can also assist by referring the woman
to her closest
Legal Aid Queensland office or to a Community Legal Centre
in her area as she may need to get help from one of these services
to obtain the evidence required by the Department. Community
Legal Centre contact details can be accessed via Legal Aid’s
website.
The woman will also have to prove the genuineness of her relationship,
and you can provide her with information about this as is set
out above under the domestic violence exception.
If the partner of a woman on a temporary partner visa dies
before the woman is granted permanent residence, she may still
be able to obtain permanent residence if it can be proven that
the woman would have continued to be the partner of the sponsor
if the sponsor had not died. In some cases the woman must also
prove that she has developed close business, cultural or personal
ties in Australia. The woman will also still have to prove that
her relationship was genuine and continuing prior to the death
of her partner.
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The Death of Partner Exemption
You should refer women who may be able to rely on this exception
to RAILS for advice.
You may then be able to support the woman to obtain the evidence
required, for example a death certificate and if necessary evidence
of the ties developed by the woman in Australia.
The woman will also have to prove the genuineness of her relationship,
and you can provide her with information about this, as is set
out above under the domestic violence exception.
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