In April 2019, the Migration Amendment (Family Violence and Other Measures) Act commenced, changingthe previous arrangements for partner visas. Previously, the visa application and sponsorship application were lodged together. A valid visa application could be lodged prior to the sponsorship being approved.
Under the new arrangements, the sponsorship must be lodged and assessed first. It that a valid visa application cannot be made until sponsorship is approved. In addition, the Minister of Home Affairs will refuse to approve the sponsorship if the sponsor has been convicted of a relevant offence and, as a result of those convictions, has a significant criminal record.
We anticipate that the new framework will limit the ability to apply for family violence provisions as well as increase disadvantage.
Consider two of the following scenarios to see the implications on victims/survivors of domestic and family violence.
Scenario 1
Amina holds a student visa. Before the amendment came into affect, if Amina lodged an application for a subclass 820 visa with her partner/sponsor Harry, this would have included the sponsorship application simultaneously. In that case, she would have been granted a Bridging visa A while the sponsorship and visa application were being assessed.
If, prior to a decision on the 820 visa application being made, Harry perpetrated family violence against Amina and they separated, Amina would still able to meet the time of decision criteria for the grant of the subclass 820, relying on the family violence provisions. This means that, if successful with the family violence provisions, Amina would become a permanent resident after her relationship breakdown with Harry.
Scenario 2
Under the new arrangements, there are no protections for an applicant affected by family violence whose relationship breaks down prior to sponsorship being approved.
Consider the same situation. Amina holds a student visa that will expire on 25 September. As Amina is in a relationship with Harry, they decide to apply for a partner visa. On 20 September, they lodge a sponsorship application. Sponsorship approval may take several months. On 26 September, Amina’s student visa expires, that immediately makes her unlawful in Australia. She is able to apply for a Bridging visa E, which is granted without work rights.
While waiting for the sponsorship to be approved (which takes several months), Harry perpetrates family violence. As Amina Jane has no work rights and is therefore totally financially dependent on Harry, making leaving the relationship extremely difficult.
If Amina leaves, she will be unable to lodge a valid application for a subclass 820 visa. As no visa application was lodged, if they separate, Amina will have to leave Australia.
