Partner & Marriage Visa: Family Violence Provisions
Partner & Marriage Visa: Family Violence Provisions
Australia may still grant you a permanent visa if your relationship ends because of family violence. Understanding your rights and acting early can make all the difference.
Understanding Subclass 309 & 100 Partner Visas
The primary pathway for a person wishing to migrate to Australia on the basis of a marriage or de facto with an Australian citizen, permanent resident, or eligible New Zealand citizen involves two complementary visas. They are Subclass 309 (Partner – Provisional) and the Subclass 100 (Partner – Migrant). Although they are technically distinct, applicants still apply for both visas simultaneously at the time of lodgement.
The Subclass 309 is a temporary visa that allows applicants to live in Australia while the Department of Home Affairs processes their permanent visa. During this temporary stage, which can last two to three years, officials review how long the relationship has lasted. They also check if children are involved. Once the Department confirms that the relationship is genuine and ongoing, it grants the permanent Subclass 100 visa.
Did you know?
- Following the July 2024 amendments, the government has substantially aligned Subclass 309 and 820, giving offshore and onshore applicants more consistent rights.
- A Subclass 309 applicants can now be offshore at the time of permanent visa decision in certain circumstances(including family violence)
The key protection built into this two-stage system is the Family Violence Provision — a legal safeguard that ensures a victim of family violence is not forced to remain in an abusive relationship simply to preserve their visa status.
What Is "Family Violence" in Migration Law?
Family violence in the migration context is defined under Regulation 1.21 and 1.23 of the Migration Regulations 1994 (Cth). It is deliberately broad and extends well beyond physical assault.
“Relevant family violence means conduct — actual or threatened — that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, their own wellbeing or safety.”
Migration Regulations 1994 (Cth), Reg. 1.23(2)(b)
Critically, physical violence is not required. Australian courts and the Tribunal have consistently held that the provision captures a wide spectrum of conduct, including:
Conduct That May Constitute Family Violence
- Physical assault or threats of assault
- Sexual abuse or coercion
- Emotional and psychological abuse (e.g. humiliation, degradation, gaslighting)
- Financial control — restricting access to money or employment
- Immigration-related coercion — threatening to cancel a visa or report someone to authorities
- Persistent surveillance and controlling movements
- Isolation from family, friends, and community
- Threats directed at children or other family members
The conduct does not need to target the visa applicant solely. Threats or violence directed at the applicant’s family members or even property may also satisfy the definition.
Importantly, the relationship does not have to end because of the family violence. What matters is that the violence happened while the relationship was genuine and ongoing.
Who Can Claim the Family Violence Provision?
To use the family violence provisions, you must first meet certain requirements. After a breakup, you may also be able to get a permanent partner visa. Specifically, you must satisfy all of the following conditions:
Hold the Correct Visa
You must hold, or have applied for, a Partner Visa (Subclass 820/309) or have previously held a Prospective Marriage Visa (Subclass 300) while in Australia.
Relationship Was Genuine
The Department must confirm that your relationship with the sponsor was genuine and ongoing before it broke down. Otherwise, they will not assess your family violence claim.
“Relevant Family Violence” Was Experienced
The family violence must have been committed by — or attributable to — the sponsoring partner. Violence committed by a third party may qualify in limited circumstances (see case law below).
Violence Occurred During the Relationship
The family violence must have occurred while the relationship was still active, not after separation.
Health and Character Requirements
You must still meet the standard health and character requirements before any visa can be granted.
Warning — Act Promptly
- Time limits apply to appeals to the Administrative Review Tribunal (ART, formerly the AAT).
- If your visa has been refused or cancelled, you have a limited window to seek review.
Types of Evidence Required for Family Voilence
Evidence of family violence falls into two categories under the Migration Regulations — judicial evidence and non-judicial evidence. Understanding which category applies to your situation is critical.
Judicial Evidence (Strongest Form)
If judicial evidence exists, the Department must accept that family violence occurred. No further investigation is required. Judicial evidence includes:
- A domestic violence protection order (intervention order) issued by a court against the sponsor, where the court has served the papers on them.
- A criminal conviction against the sponsor for violence towards the applicant
- A court injunction against the sponsor in relation to the applicant
Non-Judicial Evidence
Where judicial evidence is not available, the applicant must provide at least two reports or statutory declarations from professionals from different disciplines. Acceptable professionals include:
- A registered medical practitioner (e.g. treating GP)
- A registered psychologist or counsellor
- A social worker
- A police officer with knowledge of the situation
- A child welfare officer
- A staff member from a women’s refuge or family violence crisis centre
The applicant must also provide a statutory declaration (Form 1410 may be used) detailing the violence experienced. These professional reports must go beyond merely restating the applicant’s account — they must contain the practitioner’s own observations and link the conduct to the legal definition of family violence.
Independent Expert Assessment
If the Department reviews the non-judicial evidence and is still not satisfied that family violence occurred, it is legally required to refer the matter to an Independent Expert (a qualified health professional appointed by the Government). The Independent Expert’s determination is binding — the Department must accept their opinion on whether family violence occurred.
The Application & Appeals Process
Navigating a family violence claim through the partner visa process involves multiple stages. Understanding each stage — and the appeal rights at each — is essential.
Step 1: Notify the Department of Relationship Breakdown:
If your relationship has ended due to family violence, notify the Department of Home Affairs in writing. Include your statutory declaration and any judicial or non-judicial evidence.
Step 2: Department Assessment
The Department first considers whether your relationship was genuine, then assesses the family violence evidence. If non-judicial evidence is provided and they remain unsatisfied, the matter is referred to an Independent Expert.
Step 3: Independent Expert Interview:
You will be contacted by the Independent Expert to arrange an interview. All your submitted evidence is passed to them. Their conclusion on family violence is final and binding on the Department.
Step 4: Department Decision
If the Independent Expert confirms family violence occurred, the Department must grant the visa (subject to health and character checks). If refused, you have appeal rights.
Step 5: Administrative Review Tribunal (ART)
If the Department makes an error of law in its decision, an application for merits review can be made to the Administrative Review Tribunal within strict time limits. The ART can obtain a fresh Independent Expert opinion.
Step 6: Federal Circuit & Family Court / Federal Court
If the ART itself makes an error of law, judicial review may be sought in the Federal Circuit and Family Court of Australia (FCFCA) or the Federal Court. These proceedings are complex and require experienced legal representation.
Key Case Law of Family Violence
The courts and Tribunal have issued a number of important decisions that shape how family violence provisions are applied in practice.
Bhalla v Minister for Immigration and Border Protection
[2015] FCCA 2381 — Federal Circuit Court of Australia
This case showed that a sponsor can be held responsible for family violence. This applies if the sponsor encouraged or incited violence by a third party, such as their brother. However, the claim was dismissed because no evidence of actual incitement by the sponsor was established. The case is authority for the proposition that the alleged perpetrator need not personally commit the act. But the link must be demonstrated.
Sie Sok v Minister for Immigration and Border Protection
(2000) 238 CLR 251 — High Court of Australia
A landmark decision confirms that the Tribunal and the Department are both bound.They must accept the Independent Expert’s opinion on whether family violence occurred. This rule protects applicants from having valid expert findings overruled by officers or the Tribunal on this issue.
AAT Family Violence Case — Re: Partner Visa Appeal (2023–2024)
Administrative Appeals Tribunal — Illustrative Case
In a recent case, the AAT sent back an application. This occurred after the applicant’s lawyers challenged the initial Independent Expert’s opinion. The Tribunal commissioned a second expert, who confirmed family violence had occurred. This case shows that an unfavorable first expert report is not always the end. Skilled legal advocacy can challenge the process and win a new assessment.
“For the purposes of the definition of Family Violence under the Migration Act, actual physical violence or harm to the applicant need not be shown.”
Established principle across multiple Federal Court decisions.
2024 Law Amendments New
The Migration Amendment (Family Violence Provisions for Partner Visa Applicants) Act 2024 passed Parliament on 20 June 2024 and came into force on 1 July 2024. These are the most significant changes to partner visa family violence provisions in many years. The amendments apply to all applications lodged but not finally determined before 1 July 2024, as well as all new applications.
Key Changes
1. Sponsorship Requirement Removed
Previously, applicants needed to still be sponsored by their partner at the time of the visa decision — even if the relationship ended due to violence. This requirement has been removed where the relationship ended because of family violence, the death of the sponsor, or the birth of a child of the relationship.
2. Subclass 309 — No Longer Required to Be in Australia at Time of Decision
Subclass 309 applicants can now be offshore at the time the visa is decided, provided they were in Australia at the time of the original application. This is a major change particularly for victims who fled Australia to safety.
3. Alignment of 309 and 820 Visa Rights
The rights and protections available to Subclass 820 (onshore) applicants have been substantially aligned with Subclass 309 (offshore) applicants, simplifying the law and providing greater consistency.
4. Language Changed from "Suffered" to "Experienced"
The regulations now use the term “experienced” family violence rather than “suffered” — a shift that reflects a more trauma-informed and compassionate understanding of victims’ circumstances, and potentially lowers the threshold for accessing these protections.
5. Prospective Marriage (Subclass 300) Visa Holders
Holders of the Subclass 300 Prospective Marriage visa can now access the expanded family violence provisions and may apply for an onshore partner visa under the relationship cessation provisions.
Frequently Asked Questions
Q1. I don't have a court order or police report. Can I still make a family violence claim?
A- Yes. Judicial evidence is not mandatory. You can make a claim using non-judicial evidence — two professional reports from qualified practitioners in different fields (e.g. a GP and a psychologist), along with your own statutory declaration. If the Department is not satisfied, the matter must be referred to an Independent Expert whose opinion is binding.
Q2. The violence was mostly emotional and psychological — does that count as family violence?
A- Yes. The legal definition of family violence does not require physical harm. Conduct that causes you to reasonably fear for your wellbeing or safety — including psychological abuse, controlling behaviour, threats, financial abuse, and isolation — can all satisfy the definition under the Migration Regulations.
Q3. My sponsor's family member (not my sponsor) was violent towards me. Does this still count as family violence?
A- It may, depending on the circumstances. Courts have held that where a sponsor encouraged, incited, or directed a third party to commit violence against the applicant, this can be attributed to the sponsor. However, the connection must be evidenced — mere knowledge of the conduct may not be enough. This is a complex area and you should seek legal advice.
Q4. The Independent Expert has found against me. Is that the end of my case?
A- Not necessarily. If there were procedural errors in how the expert was engaged, or new evidence has emerged, there may be grounds to challenge the assessment or seek a second opinion through the Administrative Review Tribunal. Legal advice should be obtained immediately given strict time limits.
Q5. I left Australia after experiencing violence. Can I still claim?
A- Under the 2024 amendments, Subclass 309 applicants no longer need to be in Australia at the time of the permanent visa decision when the relationship ceased due to family violence — as long as you were in Australia at the time of the original application. This is a significant change that may assist people who fled for safety.
Q6. My partner is threatening to withdraw sponsorship if I leave. What should I do?
A- This is a recognized form of immigration-related family violence. Your eligibility for a permanent visa does not depend on your partner continuing to sponsor you. This applies after the family violence provisions take effect. Contact our office immediately for confidential legal advice. Your safety comes first.
Q7. Can I get a Restraining Order and use it for my visa application?
A- Yes. A domestic violence protection order (intervention order) granted by an Australian court — where papers have been served on your sponsor — constitutes judicial evidence. The Department must accept this as conclusive proof that family violence has occurred. Our lawyers are experienced in both migration law and restraining order proceedings and can assist across both matters.
Final Thoughts
Family violence provisions in partner visa matters are legally complex, emotionally demanding, and time-sensitive. Whether you are unsure of what stage your application is at, have received an unfavourable decision from the Department of Home Affairs, or are facing the very difficult situation of leaving an abusive relationship while your visa is still being processed — you do not have to navigate this alone. The migration lawyers at Emigrate Lawyers are experienced in immigration law and family violence proceedings and are ready to make your migration journey smooth and hassle-free.
The sooner you seek advice, the more options you have. We are here to help !
Reach out to us today through any of the following:
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