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If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Separation if non-resident

Information about what might happen to a person who does not have permanent residence in Australia when they separate from their partner.

Sometimes one of the parties in a relationship is afraid to separate because they fear that they may lose the right to stay in Australia. The other party may exploit this fear. This can include situations where one party has been subjected to family violence.

A person who is being sponsored for a partner visa by their partner (including a fiancé, de facto, spouse, whether same sex or heterosexual) will usually get a temporary visa for 2 years before they get a permanent visa.

If there are children from the relationship

A permanent visa may be granted to someone who does not have residency after the breakdown of a relationship if they have custodial rights under the Family Law Act 1975 for any children aged under 18 years.

Their former partner must either be an Australian citizen or have permanent residency in Australia.

In situations where there is family violence

If a person does not have permanent residency and has been in a relationship (whether married or de facto) with someone who is:

  • an Australian citizen
  • a permanent resident, or
  • an eligible New Zealand citizen

and their relationship breaks down in situations where there is family violence against the non-resident, the non-resident may continue with their application for permanent residency after they separate.

The violent partner does not have the power to cancel a visa.

The applicant will need to provide evidence of a copy of a record of an assault. This could be a court order or statutory declaration, hospital or police record, or joint undertakings.

See Vol 1, Part 1, Div 1.5—Migration Regulations 1994 (Cth)(opens in a new window).

Where the non-resident is the respondent

If a non-resident has been a respondent in a family violence intervention order, the consequences for their visa status are potentially serious if they break the conditions of the intervention order or behave violently towards a family member.

The potential migration consequences for non-citizen clients will depend on the kind of visa the person holds.

The latest Ministerial Direction for visa refusal and cancellation, which commenced on 15 April 2021, now includes family violence as a primary consideration.

See Cancelling a visa on character grounds.

Permanent residents – Character test applies

Permanent residents can have their visas cancelled for a variety of reasons, most commonly where they fail the ‘character test’ (s. 501 Migration Act 1958). A person can fail the character test in various ways, including:

  • Having a ‘substantial criminal record’, which includes someone who has been sentenced to imprisonment for 12 months or more. Minor offences will not lead to a ‘substantial criminal record.’
  • Being ‘not of good character’ having regard to their criminal and general conduct, both past and present. It is possible for a pattern of minor offending to result in cancellation of a visa on the basis that the person is ‘not of good character’.

Temporary (non-Bridging Visa E) visa holders – Character test applies

People who hold substantive temporary visas such as:

  • students
  • working holiday-makers, or
  • people who are sponsored for work, or by spouses

may have their visas cancelled or may be refused future temporary or permanent visas if they fail the character test.

Bridging Visa E holders – Asylum seekers (Illegal Maritime Arrivals)

Bridging visas allow people to stay in Australia (and not be held in immigration detention) while they are waiting for a substantive visa. ‘Illegal Maritime Arrivals’ (IMAs) (that is, people who arrived by boat without a valid visa) will in most cases hold a Bridging Visa E (BVE), which is a type of bridging visa.

BVE holders are more vulnerable than other visa holders to having their visas cancelled as a result of minor criminal offences. This is because there is a lower threshold than the character test for a BVE to be cancelled, including where the person has:

  • breached the Code of Behaviour, or
  • been convicted or charged with a criminal offence.

Code of Behaviour

The Code of Behaviour applies to BVE holders who are over 18 years old. The purpose of the Code is to ensure that people on a BVE behave appropriately while they are in the community. A BVE can only be granted if the person signs the Code. It is a condition of the BVE that the person does not breach the Code.

The Code prohibits a broad range of conduct, from non-cooperation with the Department of Immigration and Border Protection to criminal offences. In particular, the code states that the person agrees not to ‘harass, intimidate or bully any other person’ or engage in ‘anti-social or disruptive activities’. Minor offending enlivens the discretion of the Minister (or their delegate) to cancel a BVE, on the grounds of either:

  • breaching the Code (by disobeying Australian laws and taking part in criminal behaviour), or
  • being convicted or charged with a criminal offence.

If a person has had a BVE cancelled on either ground, they will be unable to make a further valid BVE application.

See Department of Immigration and Border Protection—Code of Behaviour(opens in a new window).

Applicants for citizenship

The Australian Citizenship Act 2007 (Cth) says that a person must be of good character to be allowed to become an Australian citizen. The term ‘good character’ is not defined under the Act, but policy suggests it is taken to have a broad meaning, including consideration of a person’s ‘enduring moral character’ as an indication of whether they are likely to uphold and obey the laws of Australia. A person’s criminal and general conduct will be taken into account in the assessment of this criterion.

See s. 16—Australian Citizenship Act 2007 (Cth)(opens in a new window).

More information

Legislation

Family Law Act 1975 (Cth)

See Family Law Act 1975 (Cth)(opens in a new window).

Migration Act 1958 (Cth)

  • s. 5CA—child of a person
  • s. 5CB—de facto partner
  • s. 5G—relationships and family members.

See Migration Act 1958 (Cth)(opens in a new window).

Migration Regulations 1994 (Cth)

  • Vol 1, Part 1, Div 1.5—Special provisions relating to family violence.

See Migration Regulations 1994 (Cth)(opens in a new window).

Australian Citizenship Act 2007 (Cth)

  • s. 16—application and eligibility for citizenship.

See Australian Citizenship Act 2007 (Cth)(opens in a new window).

Reference

Department of Home Affairs

he department site has information about the kind of evidence needed for a person who is a victim of family violence who is seeking a visa.

See Department of Immigration and Border Protection—Family violence and your visa(opens in a new window).

For code of behaviour for people staying on Bridging Visas:

See Department of Home Affairs—Code of Behaviour.(opens in a new window)

Professional Support Lawyer resources

See Practice Resources—Civil justice resources—Family violence and visa applications(opens in a new window).(opens in a new window)

Salvos Legal

This religious-based community organisation may be able to provide legal advice or assistance for migration and refugee law.

See Salvos legal(opens in a new window).

Thanks to Fiona Brice, VLA's Professional Support Lawyer – Civil law, for the information about family violence consequences for respondents.

Updated