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These visas are excluded from family violence protection under current Australian law

Source: SBS

Many temporary residents in Australia are unable to access family violence provisions in the Migration Regulations, due to their visa status. Brisbane-based social worker Jatinder Kaur told SBS Punjabi in this interview that "This must change. Women facing domestic violence must be granted temporary protection, regardless of their visa status."

In a recent case highlighted by SBS Punjabi, a family violence victim we called Seema, returned to India on 23 January 2018, even before she could attend the Brisbane court hearing set for January 31.

Her temporary visa had been revoked by her husband after they separated, and she couldn't stay legally in Australia after  January 25. 

And because of her visa status, she was unable to access the family violence provisions which give protection within the Australian migration regulations.

Jatinder Kaur, of JK Consultants in Brisbane, says, "This is a case in point that many migrant women are excluded from the protection usually given by Australian law to women suffering family violence."

Speaking to SBS Punjabi, Ms Kaur said, "Women who are in Australia on a 457 spouse visa, NZ temporary visa, Student visa, or Business skilled visa are not eligible to access family violence provisions in the Immigration Act".

Ms Kaur added, "In 2012, the Australian Government introduced changes to the Migration Regulations 1994 (the Regulations)and specified that ‘Family Violence Provisions’ can only be accessed by those with the following specific visas:

  • Temporary Partner Visa (subclass 309, 820, 300)
  • Bridging Visa (granted at the time of their Partner visa application lodgement)
  • Other Temporary Visa (student visa, guardian visa, tourist visa) ONLY if they already lodged valid application for partner visa
  • Distinguished Talent Visa
  • Applications for SKILLED stream (Business) visas lodged before 1 July 2012

All other visa holders are excluded, this almost creating two categories of family violence victims, based on their visa status.

Ms Kaur said that even for the visas mentioned above, there is a specific process that must be followed by family violence victims.

"If person has been victim of Domestic or Family Violence and wishes to continue to reside in Australia on a permanent residence application, they need to inform Immigration department about the breakdown in the relationship and the history of family violence."

"Further, they need to provide evidence of family violence in one of the following two ways :

  1. Judicial evidence – Injunction, Court Order or Conviction (Domestic Violence Protection Order)
  2. Non- Judicial evidence:

-          Statutory declaration by applicant

-          Two external evidence professional (Medical (GP), Police, Child Protection, Social Worker, Women’s Refuge, Psychologist, Family Consultant or School counsellor/Principal

"The Immigration department then sends this application to be reviewed by an expert, before it is processed and deemed to meet ‘family violence provision’ and genuine relationship proof."

Ms Kaur was involved in the latter stages of Seema's case and handled it pro bono. "Seema suffered domestic violence  during the period between 17 November 2015 to 1 October 2016.

"Seema's husband Ashok strangulated her and I have seen evidence of that. Furthermore, Seema was kept in slavery-like and servitude conditions, which also related to forced labour."

Ms Kaur believes that in fact "It should be Mr Ashok whose visa should be cancelled on the grounds of committing these criminal offences."

She adds, "Seema was unable to stay back in Australia and pursue the matter at the Federal Court Circuit, which would have cost her over $10,000 in costs, in case she lost the case."

"And because of her visa status, she was unable to get any bridging or other visa that maybe given to family violence victims under the current Australian law."

Ms Kaur believes this must change.

"Women must be granted temporary protection, irrespective of their current visa status."

"Currently the Australian Women Against Violence Alliance and Harmony Alliance (Migrant & Refugee Women for change) have advocated for the Australian government to ensure migration rules and eligibility requirements for support services do not disempower victims of violence or discourage them from leaving violent relationships (as outlined in the Third National Action Plan to Prevent Violence Against Women)."

"We would like the Australian government to introduce Visa provisions that allow all victims/survivors temporary protection, irrespective of current visa status and consider establishing pathways to complementary protection – in light of the fact that victims/survivors may face ostracism and abuse on return to their home country."

"This will prevent Immigration status being used as weapon by perpetrators and help to ensure victims/survivors can make escape plans without fear or imminent deportation," said Ms Kaur. 

PLEASE NOTE: f you are seeking help regarding a family violence matter, please call 1800 RESPECT or 1800 737 732. This is a free call, from anywhere within Australia and if you can't speak English fluently, an interpreter can be arranged. In case of emergency, please call 000

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