International comparisons

21.91 A number of overseas jurisdictions including the US, Canada, the UK, and New Zealand have family violence provisions. Although these models reflect differing policy considerations in their respective countries, their approaches to evidentiary requirements—and to the respective family violence provisions as a whole—provide a useful comparison with the Australian system.

United States

21.92 The US has a comprehensive legislative scheme for the protection of immigrant women who are victims of ‘domestic violence’—the term used in the US rather than ‘family violence’, which is used in the Australian context.[115] This is enshrined in the Violence Against Women Act (VAWA) of 1994, which was ‘reauthorised’ in 2000 and 2005, and codified in various parts of the United States Code.[116] Although the title of the Act refers to women, protection applies to all spouses, including men.

21.93 Under US immigration law, spouses of US citizens or lawful permanent residents may apply for, and be granted conditional residence status, for a period of two years. In order to gain permanent residence, the couple must file a joint petition for removal of the conditional residency status within a 90 day period before the expiration of the two year conditional residence grant.[117] That is, the immigrant must be supported in the petition for permanent residence by his or her US spouse. In the event that: a petition is not filed; the marriage is terminated; or it is found that the marriage was not entered into in good faith, the conditional residence status of the immigrant is terminated and he or she becomes an unauthorised alien,[118] who can then be subjected to removal proceedings.[119]

21.94 Within this framework, VAWA provides two major avenues for victims of domestic violence to obtain temporary and permanent residence: removal of conditional status and cancellation of removal.

Removal of conditional status

21.95 The key protection mechanism in VAWA allows persons who are victims of domestic violence to self-petition for removal of their conditional residency status independently of their spouse.[120] A victim must be able to show that: the marriage was entered into in good faith; the abuser was a US resident or lawful permanent resident; he or she resided with the US resident or lawful permanent resident; during the marriage, either he or she, or a child, had been battered or subjected to extreme cruelty perpetrated by the US resident or lawful permanent resident; and he or she is of good character.[121] The protection extends to divorced women and widows who apply for self-petition within two years of divorce or death of the US citizen or lawful permanent resident.[122]

Cancellation of removal

21.96 Although most victims of domestic violence will be able to apply for the self-petition, it is unavailable to those who are already in removal proceedings—typically, because he or she is present in the US without legal immigration status.[123] In these cases, victims of domestic violence may seek to cancel their removal from the US on this basis. Applications are made to a judge and, if successful, cancellation of removal entitles a victim to permanent residence. In order to be granted the cancellation of removal, it must be demonstrated that:

  • the victim has been battered or subjected to extreme cruelty by a spouse or parent who is a US citizen or lawful permanent resident, or by a US citizen or lawful permanent resident whom he or she intended to marry, but whose marriage is not legitimate because of bigamy; [124]

  • the victim has been physically present in the US for a continuous period of three years immediately preceding the date of the application;[125]

  • the victim has been a person of good moral character during such period;[126] and

  • the removal would result in extreme hardship to the victim, or the victim’s child or parent.[127]

Evidentiary requirements

21.97 The VAWA and the United States Code contain no specific provisions in relation to evidentiary requirements to support a claim for self-petition or cancellation of removal. Rather, a victim must fill out an application form and attach all supporting documentary evidence supporting their claim. Generally, applicants are encouraged to seek assistance from an attorney when making in application. In relation to cancellation of removal status, the United States Code provides that the Attorney-General ‘shall consider any credible evidence relevant to the application’.[128]


21.98 In Canada, the Immigration and Refugee Protection Act 2001 (Canada) provide that Canadian citizens or permanent residents can sponsor a person who falls within the ‘family class’ to obtain permanent residence.[129] The ‘family class’ includes a sponsor’s spouse, common-law partner or conjugal partner.[130]

21.99 Those who fall within the ‘family class’ can be sponsored from abroad, and enter Canada with permanent residence status.[131] Alternatively, applications can be made onshore, where the spouse or common-law partner is cohabitating with the sponsor and is the subject of a sponsorship application.[132] If the relationship is assessed as genuine—and all other criteria are met—the person will be granted permanent residence status. There is no official waiting period comparable to Australia or the US. However, if the sponsorship is withdrawn at any time, no decision shall be made on the application,[133] and the person the subject of sponsorship may be subjected to removal proceedings.

21.100 Those who are onshore, and whose sponsorship has broken down due to family violence, can apply for permanent residence on ‘Humanitarian and Compassionate’ grounds,[134] whether or not the person has temporary residence status.[135] Under the Immigration Guidelines, ‘Humanitarian and Compassionate’ grounds refer to circumstances where ‘unusual, undeserved or disproportionate hardship would be caused to the person if he or she had to leave Canada’.[136] The guidelines for officers determining applications explicitly recognise family violence:

Family members in Canada, particularly spouses, who are in abusive relationships and are not permanent residents or Canadian citizens, may feel compelled to stay in the relationship or abusive situation to remain in Canada; this could put them in a situation of hardship.

Officers should be sensitive to situations where the spouse (or other family member) of a Canadian citizen or permanent resident leaves an abusive situation and, as a result, does not have an approved sponsorship.

Officers should consider the following factors:

  • information indicating there was abuse such as police incident reports, charges; or

  • convictions, reports from shelters for abused women, medical reports;

  • whether there is a degree of establishment in Canada;

  • the hardship that would result if the applicant had to leave Canada;

  • the laws, customs and culture in the applicant’s country of origin;

  • the support of relatives and friends in the applicant’s home country; and

  • whether the applicant has a child in Canada or/and is pregnant.[137]

21.101 Family violence is one of a number of factors to be considered in an ‘Humanitarian and Compassionate’ application, and the existence of family violence does not give an applicant automatic right to permanent residence. Factors that must be considered when determining ‘hardship’ include, but are not limited to: establishment in and ties to Canada; the best interests of any child involved; health considerations; consequences of the separation of relatives; and factors in the applicant’s country of origin.[138]

21.102 The Immigration Guidelines also give guidance on whether there is a significant ‘degree of establishment’ in Canada. These factors include the person’s employment history; level of education; time spent in Canada; type of assets; family and community support; whether the applicant would face hardship if returned to his or her country; and whether the removal would have any impact on others living in Canada.[139]

21.103 As in the US, there are no specific evidentiary requirements spelled out in the guidelines or legislation. Rather, the guidelines state that the onus is on the applicant to put forth any ‘Humanitarian and Compassionate’ factors that he or she believe are relevant to their case, and ‘to be clear in the submission as to exactly what hardship they would face’.[140]

21.104 The Immigration Guidelines also recognise that effective decision making in ‘Humanitarian and Compassionate’ cases involves ‘striking a balance between certainty and consistency on the one hand and flexibility to deal with the specific facts of the case, on the other’.[141] As such, the guidelines specifically note that legislation, policy statements, guidelines, and manuals and handbooks may legitimately influence decision makers in their work.

United Kingdom

21.105 Persons seeking permanent residence in the UK on the basis of a marriage or civil partnership with a UK sponsor are—in a manner similar to Australia—subjected to a two-year temporary visa period.[142] Under the Immigration Rules (UK), victims of family violence may seek ‘indefinite leave to remain’ in the UK if, among other things, they are able to produce evidence as required by the Secretary of State that ‘the relationship was caused to permanently break down before the end of that period as a result of domestic violence’.[143]

21.106 Applicants are required to provide an application form along with supporting documents to support their claim. There are no prescriptions on the type of evidence that may be presented.

21.107 Under the Immigration Directorate Instructions (the Instructions), visa decision makers have considerable discretion in assessing whether the relationship has broken down as a result of family violence. The Instructions provide guidance on the relevant types of evidence that an applicant may present and the appropriate weight to be given to each. For example, the Instructions provide that two types of evidence should be sufficient, of themselves, to establish family violence: a relevant court conviction against the sponsor; or full details of a relevant police caution issued against the sponsor.[144]

21.108 A criminal conviction is considered indisputable evidence that family violence has occurred.[145] Where the criminal case is pending, the visa decision maker is to consider evidence from both parties, and make a separate assessment of the application.[146] In relation to police cautions, the visa decision-maker is directed to call the relevant police station to confirm whether a caution has been issued. If confirmed, it may provide evidence that the applicant has suffered family violence.[147]

21.109 In the absence of the above forms of evidence, applicants may provide as many pieces of evidence as possible to support their case. The Instructions set out a non-exhaustive list providing that such evidence can include:

  • a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence;

  • a letter from a GMC registered family practitioner who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence;

  • an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of violence;

  • a police report confirming attendance at an incident resulting from domestic violence;

  • a letter from a social services department confirming its involvement in connection with domestic violence;

  • a letter of support or a report from a domestic violence support organisation.[148]

21.110 While the Instructions are comprehensive, they are not determinative since ‘any evidence of domestic violence should be considered by caseworkers when making a decision’.[149] The Instructions recognise that

caseworkers might find they are required to make the kind of judgment normally undertaken by other professional bodies, they may also find that they have to consider the validity and authenticity of documents provided by the applicant. In view of this, caseworkers should seek advice from their senior case worker and/or other relevant bodies when assessing an application.[150]

New Zealand

21.111 The New Zealand model, in many respects, mirrors that of Australia. Under the Migration Act 2009 (NZ), the Minister for Immigration may certify immigration instructions in relation to the issuance of visas, including their criteria, rules and general objectives.[151]

21.112 In order to be granted a partner visa, applicants must satisfy the visa decision maker that they have been living for 12 months in a ‘partnership’ that is genuine and stable with a New Zealand citizen or permanent resident.[152] A ‘partnership’ is defined to cover a marriage, civil union or de facto relationship (whether opposite or same-sex).[153]

21.113 Under the immigration instructions titled ‘Residence policy for victims of domestic violence’, victims of family violence can apply for permanent residence and have their claims assessed by a departmental officer.[154] Domestic violence applications are given priority processing, and are determined by immigration officers who have received specialist training in applying the policy.[155]

21.114 Under the immigration instructions, evidence of domestic violence means:

a final protection order against the New Zealand citizen or resident partner or intended partner under the Domestic Violence Act 1995 (NZ); or

a relevant New Zealand conviction of the New Zealand citizen or resident partner or intended partner of a domestic violence offence against the principal applicant or a dependent child of the principal applicant; or

a complaint of domestic violence against the principal applicant or a dependent child investigated by the New Zealand police, where New Zealand police are satisfied that domestic violence has occurred; or

a statutory declaration from the applicant stating that domestic violence has occurred and declarations completed by persons competent to make statutory declarations that domestic violence occurred.[156]

21.115 The instructions list persons who are competent to make a statutory declaration that domestic violence has occurred to include:

  • social workers who are:

  • registered with the Social Workers Registration Board; or

  • full members of the Aotearoa New Zealand Association of Social Workers; or

  • employed under the State Sector Act 1988 (NZ);

  • doctors registered with the New Zealand Medical Council;

  • nurses registered with the Nursing Council of New Zealand;

  • psychologists registered with the New Zealand Psychologists Board;

  • counsellors who are members of the New Zealand Association of Counsellors; and

  • experienced staff members of Child Youth and Family approved women’s refuges who are nominated by:

  • the National Collective of Independent Women’s Refuges; or

  • the Shakti Community Council.[157]

21.116 Applicants must supply statutory declarations from people acting in their professional capacity from two of the groups listed above. The two people must not be professionally related—for example they cannot be two people from the same medical practice.[158] Further, the instructions provide that immigration officers can verify that statutory declarations have been made by the competent persons by contacting the relevant professional bodies.[159]

[115] The differences in terminology are discussed in Ch 20.

[116] The Act was passed as part of Violent Crime Control and Law Enforcement Act of 1994 Pub L No 103-332, 108 Stat 1796, 1902 (US) and codified in various sections of United States Code.

[117]Violence Against Women Act (1994) 2005 USC 8 (US) § 1186(a)(1).

[118] Ibid § 1186a(c).

[119] Ibid § 1186(a)(1).

[120] Ibid § 1154(a)(1)(A)(iii)(I).

[121] Ibid § 1154(a)(1)(A). The phrase ‘battered by or has been the subject of extreme cruelty’ includes, but is not limited to, being a victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor) or forced prostitution shall be considered acts of violence. VAWA of 1994 required a victim to show that removal would result in ‘extreme hardship’. However, this requirement was removed when the Act was reauthorised in 2000.

[122]Ibid § 1154(a)(1)(A)(iii)(II)(aa)(CC)(aaa), (bbb). In the case of divorce, the immigrant woman must demonstrate a connection between the legal termination of the marriage and battering or extreme cruelty by the US citizen spouse or lawful permanent resident. If the abuser to whom the immigrant is, or was married to, has lost his permanent residence due to a conviction related to an incident of domestic violence, the immigrant woman can self petition, provided the abuser lost his residence status within two years of the date of the filing.

[123] For example, because the woman entered the US without permission, or overstayed her non-immigrant visa, or for other reasons, such as violating her visa conditions. Prior to April 1, 1997, removal proceedings were referred to as ‘deportation proceedings’.

[124]Violence Against Women Act (1994) 2005 USC 8 (US) § 1229b (2)(A)(i)(I)–(III).

[125] Ibid § 1229b(2)(A)(ii). See also § 1229b(2)(d)(2): ‘an alien shall have failed to maintain continuous physical presence in the US if the alien has departed for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. However, the alien demonstrates a connection between the absence and the battering or extreme cruelty perpetrated by the US citizen or lawful permanent resident, such absences do not count towards the 90 or 180 day limit’.

[126] Ibid § 1229b(2)(A)(iii).

[127] Ibid § 1229b(2)(A)(v).

[128] Ibid § 1229b(2)(D).

[129]Immigration and Refugee Protection Act 2001 c 27 (Canada) s 6 (2).

[130] See Immigration and Refugee Protection Regulations 2002 (Canada) reg 117(1)(a) and also div 1 which defines common-law partner as: ‘in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year’; and ‘conjugal partner’ as being ‘in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship and has been in that relationship for a period of at least one year’. The ‘family class’ also covers parents, grandparents and children (natural and adopted), and relatives.

[131] See Immigration and Citizenship Canada, IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (2011), 5.1: ‘it is a cornerstone of the Immigration and Refugee Protection Act that, prior to their arrival in Canada, foreign nationals who wish to live permanently must submit their application outside Canada, and qualify for and obtain a permanent resident visa’.

[132]Immigration and Refugee Protection Regulations 2002 (Canada) reg 124(a)–(c).

[133] Ibid reg 126.

[134] See Immigration and Refugee Protection Act 2001 c 27 (Canada) s 25(1); Immigration and Refugee Protection Regulations 2002 (Canada) reg 66.

[135]Immigration and Refugee Protection Act 2001 c 27 (Canada) s 25(1): ‘the Minister must consider a request from any foreign national in Canada who is inadmissible or who does not meet the requirements of the Act’.

[136] Immigration and Citizenship Canada, IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (2011), 12.7.

[137] Ibid.

[138] Ibid, 5.11.

[139] Ibid, 11.5.

[140] Ibid, 5.7.

[141] Ibid, 5.5.

[142]Immigration Rules 1994 (UK) reg 287(a).

[143] Ibid reg 289A(iv). Definition of ‘indefinite leave’ is taken to mean permanent residence. See UK Border Agency, Partners (2011) <> at 13 July 2011.

[144] UK Border Agency, Immigration Directorate Instructions (2011), ch 8 section 4, [2.1].

[145] Ibid, [3.1].

[146] Ibid, [3.1.1].

[147] Ibid, [3.2].

[148] Ibid, [2.3].

[149] Ibid, [2].

[150] Ibid.

[151]Immigration Act 2009 (New Zealand) s 22(1)–(8).

[152] Immigration New Zealand, Operations Manual (2011), F 2.5(a).

[153] Ibid, F 2.5(b).

[154] Ibid, S 4.5.20.

[155] Ibid, S 4.5.25.

[156] Ibid, S 4.5.5.

[157] Ibid, S 4.5.6.

[158] Ibid, S 4.5.6 (b).

[159] Ibid, S 4.5.6 (c).