Migration legislation

4.122 The object of the Migration Act 1958 (Cth) is expressed broadly as being to ‘regulate in the national interest, the coming into, and presence in Australia, of non-citizens’.[213] Certain provisions of the Migration Regulations 1994 (Cth) relate to family violence. These provisions permit certain persons applying for permanent residence in Australia to proceed with their application after the breakdown of their marriage or de facto relationship if they, or a member of their family, have experienced family violence at the hands of their partner.[214]

4.123 The family violence provisions were

introduced in response to community concerns that some partners might feel compelled to remain in abusive relationships rather than end the relationship and be forced to leave Australia.[215]

4.124 The Queensland Centre for Domestic and Family Violence Research reports that the vast majority of persons intended to be protected by these provisions are women,[216] and that the provisions were intended to respond to

the incidence of abuse occurring in relationships where one partner was being sponsored for residence in Australia. Anecdotal and statistical evidence at the time revealed significant levels of verbal, emotional, social, racial, physical, sexual and financial abuse in spousal relationships occurring in this context.[217]

4.125 The National Council to Reduce Violence Against Women and their Children stated that:

Women who are sponsored by Australian citizens and residents are particularly vulnerable to abuse due to the threat of deportation. In the late 1980s and early 1990s, domestic violence practitioners became concerned about the number of repeat or serial sponsors who abused the women and then triggered their deportation. Predominantly, the concern related to the abuse of Filipino women by serial sponsors, although more recently concerns have increased about women sponsored from other countries such as Russia, Thailand, Indonesia and Fiji.[218]

4.126 Under the Migration Regulations, a person whose relationship ends after the person has applied for permanent residence will still be able to be considered for permanent residence if he or she can provide evidence of family violence that is acceptable under the Regulations.[219] The Regulations provide for both judicially and non-judicially determined claims of family violence.[220] In July 2010, the Australian Law Reform Commission received Terms of Reference for an Inquiry—following on from the current Inquiry—into the treatment of family violence in Commonwealth laws, including immigration laws. The issues arising under the Migration Regulations will be considered further in the context of that Inquiry.

[213]Migration Act 1958 (Cth) s 4(1).

[214]Migration Regulations 1994 (Cth) Div 1.5; Department of Immigration and Citizenship, Media Fact Sheet 38: Family Violence Provisions (2009) <www.immi.gov.au/media/fact-sheets/38domestic.htm> at 19 January 2010.

[215] Department of Immigration and Citizenship, Media Fact Sheet 38: Family Violence Provisions (2009) <www.immi.gov.au/media/fact-sheets/38domestic.htm> at 19 January 2010.

[216] It is reported that the Department of Immigration and Citizenship’s policy is that if the applicant is a male it is considered reasonable to refer a non-judicially determined claim of family violence unless there is ‘strong evidence’ that the claim is genuine: Immigration Advice and Rights Centre Inc, IARC Client Information Sheet 14A—The Family Violence Provisions (2009) <www.iarc.asn.au/publications/pdfs/
familyViolence.pdf> at 12 April 2010.

[217] Queensland Centre for Domestic and Family Violence Research, The Domestic Violence Provisions in Migration Law (2002) <www.noviolence.com.au/migrationarticle.html> at 19 January 2010.

[218] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), [2.5] (citations omitted).

[219]Migration Regulations 1994 (Cth) pt 1, div 1.5.

[220] Ibid pt 1, div 1.5.