Your Guide to Partner Visas in Australia (Part 2)

In Part 1 of our Partner Visa Guide we discussed the application process as well as ways in which a Partner Visa Applicant can demonstrate their genuine and continuing relationship with his/ her Sponsor.

In Part 2 of our Partner Visa Guide, we are now addressing circumstances in which Partner Visa Applicants may still be eligible for the grant of a Partner Visa, even where their relationship with their Sponsor has ended during the application process.

Disclaimer: The information provided on our website or on any of our social media platforms is published for general informational purposes only and does not constitute legal advice. The information provided on our website or on any of our social media platforms about the migration regulations, policies and legislation is current as of the time it is published, and may be subject to change. Your use of the general information published on our website or our social media posts does not create a solicitor-client relationship between you and Inclusive Migration, and you should seek legal advice about your options from a legal practitioner or migration advice from a migration agent registered with the Office of the Migration Agents Registration Authority before proceeding with any application.

My relationship with my Sponsor has ended, can I still be granted a Partner Visa?

Partner Visa Applicants who have lodged a valid Partner Visa application with the Department, that has not yet been finally determined, may still meet the requirements for a Partner Visa in the following cases:

3 main categories

1. where the Partner Visa Applicant would have continued to be the spouse/de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen except that the Sponsor has died;

2. where the Partner Visa Applicant or a member of the Applicant or Sponsor’s family unit has suffered family violence committed by the Sponsor during the relationship; and/or

3. where the Partner Visa Applicant has -

   • custody, joint custody or access to; or

   • a residence order or contact order made under the Family Law Act 1975 (Cth);

   in relation to least 1 child in respect of whom the Sponsor has -

   • been granted joint custody or access by a Court;

   • a residence order or contact order made under the Family Law Act 1975 (Cth); or

   • an obligation under child maintenance order made under the Family Law Act 1975 (Cth), or any other formal maintenance obligation.

How do I demonstrate that I would have continued to be a spouse/de facto partner of my Sponsor if he/she did not die?

To demonstrate that you were in a genuine and continuing relationship with your Sponsor up until his/her death, and that your relationship would have continued but for his/her death, you will generally need to provide the Department with updated relationship evidence covering the period of time up until the death. This relationship evidence should address the following aspects of your relationship, to evidence your intention for a long-term relationship:

• the financial aspects of your relationship;

• the nature of your household;

• the social aspects of your relationship; and

• the nature of your commitment to each other.

The exact information and documentation that a Partner Visa Applicant may be able to provide ultimately depends on his/her specific circumstances, and if you find yourself in this predicament, we recommend that you seek professional advice about how you should go about notifying the Department about your Sponsor’s death, and what you should provide in support of your Partner Visa application.

How do I demonstrate that I have suffered family violence?

Domestic or family violence is not acceptable under any circumstance and is defined as conduct that makes you fear for you or your family’s safety. In particular, the Migration Regulations 1994 (Cth) contain special family violence provisions that allow for the grant of a Partner Visa even where a Partner Visa Applicant’s relationship with his/her Sponsor has ended, subject to regulatory and legislative requirements.

The Department recognises that family violence can include -

• physical violence

  • hitting, punching, pulling by the hair, choking, pinching, pushing, stabbing or restraining you in any way (physical injuries are often directed at parts of the body that other people will not see)

  • using weapons to frighten you

  • causing damage to property

  • not letting you sleep, eat, or take your medication

• sexual assault

  • forcing you to have intercourse when you do not want to (either with your partner or other people)

  • making you engage in sexual practices or acts you are not comfortable with (either with your partner or other people)

  • making you wear clothes you are not comfortable with

  • making you watch sexual acts you do not want to, including on digital devices​

• verbal or emotional abuse

  • threatening your life, or that of your family or pets

  • calling you abusive or insulting names or names that are culturally offensive

  • harassing or threatening you

  • saying things to frighten you, for example telling you that the children will live with him/her if you leave

  • undermining you as a parent in front of the children

  • threatening you with respect to immigration status or deportation

  • ​coercive control, which is patterns of behaviour that seek to isolate, manipulate and control your everyday life

• controlling behaviour

  • threatening you with respect to immigration status or deportation

  • ​coercive control, which is patterns of behaviour that seek to isolate, manipulate and control your everyday life

• social abuse

  • insulting you in public and in front of community members

  • not letting you attend community events

  • not letting you use community organisation, programs and/or services

  • putting you down in front of others

  • lying to others about you

  • isolating you from your community and family

  • isolating you from those people who do support you

  • not letting you visit a doctor on your own

  • controlling your life; not letting you have a life outside the home

  • ​tracking and monitoring movements and social interactions, including using devices and social media

• financial abuse

  • controlling the money so you are dependent on them

  • forcing you to sign for loans or contracts

  • questioning you about purchases you make or where you spend your money

  • only giving you money for purchases they agree to or requiring receipts or proof of purchases for items

  • using joint finances for personal use against your wishes or without your knowledge

  • incurring debts which you are also responsible for

  • incurring fines in your name – including speeding, toll roads, parking fines and so forth

  • not allowing you to work so you are unable to have an income of your own

  • dowry-related abuse – including claiming dowry was not paid and coercive demands for further money or gifts

• stalking

• technology facilitated abuse

• abuse of the elderly

The Department also recognises that family violence can be suffered by the Partner Visa Applicant or by a member of the Applicant or Sponsor’s family unit, such as a secondary applicant.

Cases which are taken to constitute family violence for the purposes of the Partner Visa Programme include -

1. Judicial cases

   • Injunction:

     • where on the application of the Applicant, a Court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 (Cth) against the Sponsor; and

     • the violence or part of the violence leading to the granting of the injunction occurred while the married relationship between the Applicant and the Sponsor was still ongoing.

   • Court Order:

     • a Court has made an under under the law of a State or Territory against the Sponsor for the protection of the Applicant from violence; and

     • the court had given the Sponsor an opportunity to be heard, or otherwise to make submissions to the Court in relation to the matter; and

     • the violence or part of the violence leading to the granting of the court order occurred while the married or de facto relationship between the Applicant and Sponsor was still ongoing.

   • Conviction:

     • a Court has convicted the Sponsor of an offence of violence against the Applicant or recorded a finding of guilt against the Sponsor in respect of violence against the Applicant; and

     • the violence or part of the violence leading to the conviction or recording of a finding of guilt occurred while the married or de facto relationship between the Applicant and Sponsor was still ongoing.

2. Non-judicial cases

   • Joint undertaking:

     • the Applicant and Sponsor have made a joint undertaking to a Court in relation to proceedings in which an allegation is before the Court that the Sponsor has committed an act of violence against the Applicant.

   • Other evidence:

     • the Applicant or another person on the Applicant’s behalf has presented evidence in accordance with Regulation 1.24* of the Migration Regulations 1994 (Cth) that the Applicant has suffered relevant family violence, and that the Sponsor committed that relevant family violence.

For non-judicially determined claims of family violence, Applicants may also be asked to meet with an independent expert who will provide his/her opinion about whether the Applicant has suffered the relevant family violence, for the Department’s consideration.

* Types of evidence that may be accepted for the purposes of Regulation 1.24 include statements from the following persons, and they must be provided in a specific form:

• Medical practitioner

• Registered nurse

• Midwife

• Police officer

• Child welfare officer

• Family violence support service provider

• Social worker

• Psychologist

• Family consultation/ family relationship counsellor

• Education professional

As your legal representative, we support you by working closely with the above professionals to provide them with guidance about the points they may address in their statements. We can also refer you to the relevant professionals to ensure that you have access to all the support and resources you require.

If you are a Partner Visa Applicant who believes that you or a member of your family has suffered family violence by your Sponsor, please contact us as soon as possible for a confidential discussion of your case so that we can support you and provide you with advice on the information and documentation you should gather.

For more information, please refer to our free visa guide on what you should do if you are a temporary visa holder who has experienced family violence in Australia.

How do I demonstrate or obtain joint custody or access over a child with my Sponsor?

The Family Court in Australia can register a parenting order in favour of any other person who has an interest in the child’s welfare. We recommend that you consult with a family lawyer who will be able to provide you with legal advice and assistance in this respect, for the appropriate resolution of any custody and/or access issues you and your Sponsor may have.

As your legal representative, we can also work with your family lawyer to ensure that you obtain the right custody or access rights over a child, so that you continue to meet the requirements for the grant of a Partner Visa.

Am I still subject to the 2-year waiting period for the grant of my permanent Partner Visa?

As discussed in Part 1 of our Partner Visa Guide, many Partner Visa Applicants are only eligible to be considered for the grant of permanent residence at least 2 years after they lodge their Partner Visa Application, with limited exceptions, including where they are already in a long-term relationship with their Sponsor at the time of application. Additionally, applicants who fall in the 3 main categories discussed in Part 2 of our Partner Visa Guide do not need to wait 2 years before they are eligible for the grant of permanent residence.

Do I need to hire an immigration lawyer or registered migration agent for my Partner visa application?

You can certainly continue with your Partner Visa Application on your own where your relationship with your Sponsor has broken down. However, the regulations and laws which are applicable to such cases are complex and ever-changing, especially when it comes to family violence and child custody cases. As a matter of prudence, we recommend that all Partner Visa Applicants consult with an immigration lawyer if they find themselves in these situations, so that they are at least aware of all potential issues and know the exact types of evidence they will need to provide in support of their application.

As always, we wish you the best with your Partner Visa Application, and should you wish to discuss your eligibility for a Partner Visa in further detail, please do not hesitate to send us an enquiry at info@inclusivemigration.com.au. While we strive to provide our clients with affordable fixed rates for our services, we recognise that not everyone has the means to obtain professional assistance with their immigration matters, and we hope that this free Partner Visa Guide provides you with some clarity on the Partner Visa programme in Australia.