New regulations commencing 15 October 2024 will allow secondary visa applicants to be granted their permanent skilled visa if family violence has occurred.

Australia’s migration framework establishes that for many visas, there can be multiple visa applicants in one visa application, which is then a combined application. Some visas, such as working holiday and visitor visas, do not have secondary applicant criteria and therefore combined applications are impossible. Separate applications must be made.

In all visa applications, there is a primary applicant. Primary applicants are those who are seeking to meet the fundamental requirements to be granted that visa. They are the skilled applicant in a skilled visa application or the partner in a partner visa application. Interestingly, if the primary visa applicant fails to meet the primary criteria, secondary visa applicants must then be considered against the primary visa criteria. In most circumstances, they would not succeed with parent visas being an exception.

Secondary applicants are the partner (spouse or de facto) of the primary applicant and/or child or step-child of either. This is known as being members of the family unit of the primary applicant. There are a few nuances to this, including an age limit for dependent children, exemptions to that age limit, and the possibility of being a dependent child of a child or step-child of the primary applicant or their partner.

When a relationship ends between the primary applicant and their spouse or de facto partner, the now former partner is no longer a member of the family unit and is not eligible to be granted a visa as a secondary applicant. Children who turn 18 and who are no longer dependent also cease becoming a members of the family unit with some exemptions.

The new regulations introduce provisions to allow secondary visa applicants to be eligible for a permanent visa even if their relationship with the primary applicant has ended and they experienced family violence committed by the primary applicant.

These provisions will apply to:

• subclass 186 – Employer Nomination Scheme visa

• subclass 187 – Regional Sponsored Migration Scheme visa

• subclass 189 – Skilled — Independent visa

• subclass 190 – Skilled — Nominated visa

• subclass 191 – Permanent Residence (Skilled Regional) visa

• subclass 858 – Global Talent visa

• subclass 887 – Skilled – Regional visa

A secondary visa applicant can be granted a visa if they have experienced family violence committed by the primary applicant, and the primary applicant is granted their visa or is refused their visa on grounds relating to family violence. This means what were usually ‘one fail, all fail’ public interest criteria (such as health and character) are now split into criteria that must be met by the primary applicant, and secondary applicants, whether they are a members of the family unit or were a member of the family unit but who have experienced family violence committed by the primary applicant. There is a further provision for a dependent child or a member of the family unit of a member of the family unit who has experienced family violence committed by the primary applicant.

What is critical is that:

• the person who has experienced family violence must have been a member of the family unit at the time of applying, and

• the family violence was committed by the primary applicant, and

• the secondary applicant was either in Australia at the time the application was made, or has subsequently entered Australia since that time.

This last limitation ensures that only those with recent ties to Australia will have access to a permanent visa.

Proving family violence is the other major component of being granted this visa. Evidence must follow strict requirements contained in the latest legal instrument.

There are also two additional changes. The first is that there is no fee for an application to the Administrative Appeals Tribunal (AAT), soon to be changed to the Administrative Review Tribunal (ART), by a secondary visa applicant if their visa application was refused because the primary applicant’s visa was refused and the Department of Home Affairs has accepted claims the secondary visa applicant experienced family violence committed by the primary applicant. This is to prevent the injustice where the primary applicant does not include secondary applicants in a review application.

The second is there is no second visa application charge for these skilled visas if a secondary applicant meets family violence provisions. Second visa application charges apply to any applicant 18 years or older who is unable to demonstrate functional English.

These amendments intend to ensure secondary visa applicants do not feel compelled to remain in a violent relationship to achieve a permanent visa outcome.

The new regulations will also apply to any application made but not finally determined (meaning a decision was made by the AAT) before they commence.