IARC recently made a submission in response to the Australian Law Reform Commission’s (“ALRC”) Discussion Paper 76 on Commonwealth Family Violence Laws. In particular, IARC commented on many proposed changes to Division 1.5 of the Migration Regulations 1994 commonly known as the “Family Violence Provisions”.
This is a significant area of interest for IARC, which has extensive experience with holders of temporary visas who are victims of family violence. The services offered by IARC including casework, pro-bono advice, education and training, gives it the advantage of a thorough understanding of both the legal and practical issues in the application of the Family Violence Provisions.
The main focus of the paper was the ‘family violence exception’, which gives those on temporary partner visas access to permanent residence if they become victims of domestic violence at the hands of their sponsoring spouse. This exception aims to ensure visa applicants are not compelled to remain in violent relationships in order to obtain permanent residence in Australia. The fundamental issue within the paper is the need to protect those vulnerable to abuse whilst ensuring the integrity of the system is not undermined.
Summarised below are the key issues addressed in the IARC submission.
MRT Fee Waiver
In July 2011, the Migration Review Tribunal’s ability to waive the review application fee was abolished. Currently, an applicant who is able to prove that they are suffering financial hardship must be able to make payment of $770. The IARC submission provided anecdotal evidence of the detrimental impact this obligation has on migrants suffering from abuse and unable to access Centrelink or job opportunities. IARC’s resolute objection to the abolition of the fee waiver is founded on a view that the amendments did not take into account the disadvantage, hardship and excessive stress it causes for victims of family violence.
Secondary Applicants
The family violence exception currently only applies to those on temporary partner visas. IARC agreed with the ALRC proposal that the exception should also apply to secondary applicants on a temporary visa who are applying for permanent residence. IARC believes this would reduce inconsistent application of the law and uphold the policy objective of protecting individuals who have suffered domestic violence at the hands of a permanent resident or an eligible permanent resident.
Prospective Spouses
Under the current system a temporary visa holder may only activate the family violence exception once they have married their potential spouse. Those on a Prospective Marriage who have decided not to marry their spouse as a result of violence cannot access the exception. The policy aim is to allow partners to stay together and one may argue that if the partnership has no future, the prospective marriage visa applicant should simply go home. However, IARC highlighted issues arising where unmarried individuals feel compelled to remain in an abusive relationship to avoid being deported. Many may even face persecution in their country of origin after returning unmarried. Additionally, some temporary visa holders who gave birth whilst in Australia face losing access to their child if they leave the relationship. IARC submitted an alternative option of offering a permanent visa on the basis of having joint custody of a child, similar to the provision in Regulation 801.221(6)(c)(ii).
Education and Training
Decision makers must make a determination regarding whether family violence has actually occurred. Discontent surrounding the inconsistencies between decision makers and the lack of real understanding of family violence has led to a call for greater education. Whilst IARC receives funding to deliver information sessions to various organisations, the funding falls far short of the demand. IARC emphasised the necessity of more funding for education to ensure consistency and integrity within the system.
Evidentiary Requirements
To access the family violence exception, one must prove that the violence occurred during the relationship. Whilst this may make sense on face value, in our experience this requirement fails to recognise the complex nature of relationships. Many partners separate for a phase and later attempt to reconcile. IARC argued that this requirement be extended to cover situations where violence occurs during a period of separation.
The ‘Independent Expert’
In non-judicially determined claims of family violence, the applicant can appeal to an ‘independent expert’. Currently, that expert is Centrelink. IARC raised concern regarding the process that will be undertaken in determining the new panel of experts. There may be situations where the victim is unable to connect with the expert and due to the likely time lapse on appeal, the victim may be viewed as unaffected by the violence at the time of the interview and lack credibility. IARC would, however, be interested in being consulted regarding how the expert panel will be chosen and operate once those details been further developed.
Third Party Intervention
The family violence exception fails to take into account cases where third party intervention results in a relationship breakdown. When the Department of Family and Community Services decides to remove a child from their home after reaching the view that the child may be subject to harm from the Australian sponsor, the temporary visa holder is required to either remain with the sponsor and lose their child, or leave with the child. IARC submitted that intervention by a third party resulting in separation should be included in the family violence exception.
Processing Times
Applications made under the family violence exception may take up to a year to process. Further applications made to the MRT can take up to two years. Most visa applicants will be living in poverty during this period and relying on community centres and charities to survive. IARC requested that claims under this exception be processed as a priority and that this be enshrined in legislation.
Evidently there are many complexities and challenges to face under the Migration Regulations. The balancing act between protecting the vulnerable and creating a watertight and efficient migration system is an extremely precarious one. The majority of the proposals from ALRC are positive and responsive to the previous submissions of a variety of stakeholders. Whilst there are many more issues on the table for discussion, Discussion Paper 76 is certainly a step in the right direction.
By Leanna Burnard
Volunteer at IARC
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