Partner & Marriage Visa: Family Violence Provisions

If your relationship has broken down because of family violence, you may still be granted a permanent visa in Australia. 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 relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen involves two complementary visas — the Subclass 309 (Partner – Provisional) and the Subclass 100 (Partner – Migrant). Although these are technically distinct visas, both are applied for simultaneously at the time of lodgement. 

The Subclass 309 is a temporary visa that allows the applicant to enter and reside in Australia while the permanent visa application is being processed. This provisional stage can take anywhere from two to three years, depending on factors such as the length of the relationship and whether children are involved. Once the Department of Home Affairs is satisfied of the ongoing and genuine nature of the relationship, the permanent Subclass 100 is granted. 

Did You Know? 

• The Subclass 309 and 820 are now substantially aligned following the July 2024 amendments — offering more consistent rights between offshore and onshore applicants. 

• A Subclass 309 applicant can now be offshore at the time of the 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 be directed solely at the visa applicant. Threats or violence directed at the applicant's family members or even property may also satisfy the definition. 

Importantly, there is no requirement that the relationship ended because of the family violence — only that the violence occurred while the relationship was genuine and ongoing. 

Who Can Claim the Family Violence Provision? 

To access the family violence provisions and potentially be granted a permanent partner visa despite a relationship breakdown, 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 be satisfied your relationship with the sponsor was genuine and continuing before it broke down. Without this finding, the family violence claim will not even be assessed. 

  
  

• "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 

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 papers have been served 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 

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 confirmed that family violence can be attributed to the sponsor where the sponsor encouraged or incited violence committed by a third party (in this case, the sponsor's 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 confirming that the Tribunal (and the Department) are both bound to accept the Independent Expert's opinion on whether family violence has occurred. This principle protects applicants from having legitimate expert findings overridden by departmental officers or the Tribunal on this specific question. 

AAT Family Violence Case — Re: Partner Visa Appeal (2023–2024) 

Administrative Appeals Tribunal — Illustrative Case 

In a recent matter, the AAT remitted an application after the initial Independent Expert's opinion was challenged by the applicant's legal representatives. The Tribunal commissioned a second expert, who confirmed family violence had occurred. This case demonstrates that an unfavourable first expert report is not necessarily the end — skilled legal advocacy can successfully challenge the process and secure a fresh 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 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 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? 

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? 

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? 

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? 

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? 

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? 

This is a recognized form of immigration-related family violence. Your permanent visa eligibility does not depend on your partner's continued willingness to sponsor you once family violence provisions are engaged. 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? 

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. Reach out to us today through any of the following: 

📞 Call Us: 1300 807 134

💬 Text Us: 0483 959 572

📱 WhatsApp: 0458 745 646

✉️ Email: info@emigratelawyers.com 

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The sooner you seek advice, the more options you have. We are here to help !  

Writer: Nisha Khatri

Position: Legal Officer at Emigrate Lawyers