Access to justice and equality before the law are important principles underpinning any notion of fairness in the legal system of a democratic country such as Australia. It is these principles which saw the introduction of the domestic violence provisions (the fore-runner of the current family violence1 provisions) into Australian migration law in 1991.
The provisions are intended to protect people (the vast majority of whom are women) sponsored by a partner for permanent residence in Australia, or included in their partner’s permanent resident application, and they are being subjected to violence by that partner. The power imbalance which is fundamental to an abusive relationship is often characterised in the immigration context by statements from abusive partners along the lines of “I am an Australian citizen/permanent resident and I can get you Australian permanent residence but without me you can’t have it” (i.e. ‘I have control over you’).
Lobbying by immigrant women’s services and others led to the introduction of the domestic violence provisions in migration law to protect women who were either forced to leave the abusive relationship, thereby losing their access to permanent residence; or remaining in the abusive relationship and being subjected to continued domestic violence. Leaving the relationship and returning to their home country often meant returning with nothing; no money, no home to return to, no job to go back to, and in some cases being faced with shame, blame, and social isolation by family and community and even physical harm, in their home country. Even when an abused woman left the relationship, the man often simply sponsored another and when she left, he sponsored another, and so on. This practice became known as ‘serial sponsorship’. A sponsor is now limited to only two overseas sponsored partners and the sponsorships must be five years apart; although this limitation may be waived in exceptional circumstances.
The proportion of visa applications involving claims of family violence is very small. Only 2.4% (1,023) of the 41,994 partner visas granted in 2011-2012 involved family violence claims.2 Yet, the family violence provisions, controversial since their introduction in 1991, have often been under the microscope. There have been at least five previous reviews and a further review is currently underway.
Judicial evidence refers to a restraining order or domestic violence protection order or injunction issued by a court against the sponsor; a conviction or finding of guilt against the perpetrator in respect of violence against the applicant or a member of the applicant’s family; or a court injunction under the Family Law Act 1975. A temporary order or injunction is not permissible evidence, which is limited to court orders made only after the alleged perpetrator has been given reasonable opportunity to be heard, or to make submissions to the court on the matter.
Non-judicial evidence refers to a joint undertaking made before a court by the alleged victim and the alleged perpetrator (signed by the Magistrate); or a statutory declaration by the visa applicant (victim), or a person on behalf of the visa applicant (victim), which is supported by: either two statutory declarations by competent persons in different categories of profession; or one statutory declaration by a competent person and one police record of assault.
A ‘competent person’ is either: a registered medical practitioner; a registered psychologist; a registered nurse who is performing the duties of a registered nurse; a social worker who is a member, or eligible to be a member, of the Australian Association of Social Workers, and is performing the duties of a social worker; a person who is a family consultant under the Family Law Act 1975; the manager or coordinator of a women’s refuge or a crisis and counselling service specialising in family violence; or a person with decision making responsibilities in a women’s service or family violence counselling service that has a collective structure.
The law is very specific about the requirements of the statutory declarations from the visa applicant, and also from the competent persons, they must meet seven criteria. The legislation is set out in Division 1.5 of the Migration Regulations, Special Provisions Relating to Family Violence. The declarations must be worded in accordance with the legislation at regulation 1.26 and the definition of family violence at regulation 1.21. If these requirements are not satisfied, the visa application will fail, irrespective of whether the applicant suffered family violence.
In circumstances where the decision maker is dissatisfied with the non-judicial evidence, the matter may be referred to an ‘independent expert’ - a Centrelink social worker. The decision of the independent expert is final.
1. A common definition of family violence be adopted in all commonwealth, state and territory jurisdictions;
2. Targeted training regarding the nature, features and dynamics of family violence for Department of Immigration and Citizenship (DIAC) case officers and Centrelink independent experts;
3. A new visa subclass for victims of family violence who hold temporary visas because they are the spouse or de facto partner of a temporary visa holder;
4. Extension of the coverage of the family violence exception provisions to all onshore permanent visas;
5. A greater range of non-judicial evidence that can be considered by the visa decision maker;
6. Repeal of the prescriptive criteria for the statutory declarations;
7. Greater transparency and consistency in referrals to the independent expert;
8. Procedural fairness on the part of the independent expert (i.e. the applicant has the right to know any adverse information or assessment and is given the right to respond to it, before the independent expert makes their final report);
9. The totality of the evidence provided by a victim should be considered, taking into account the circumstances of the individual.
The amendments include the provision of a wider range of evidence to support claims of family violence, as recommended by the ALRC. Minister Bowen acknowledged that the current process of obtaining statutory declarations, with a set of technical requirements, can be quite difficult for some victims, particularly those in rural or regional areas or those who do not speak English, and that it is both fair and sensible to allow victims to provide other forms of evidence where they exist.
Implementation of the amendments is scheduled for 24 November 2012. In the interim, DIAC will update policy guidelines to confirm that any evidence provided by applicants, in addition to the statutory declarations required under the existing legislation, should be considered.
The Ministers both saw it as unacceptable for women to face obstacles in leaving violent relationships and that they should receive the support and assistance they need. However they also state that ‘to ensure the integrity of assessments, applicants will still need to provide a minimum standard of evidence’. To know exactly what the new regime will involve we will have to wait and see. There is nothing as yet to suggest that the Minister is considering implementing any of the other recommendations of the ALRC.