6.143 Under the Migration Regulations 1994 (Cth), ‘relevant family violence’ is defined as conduct, whether actual or threatened towards:
(a) the alleged victim; or
(b) a member of the family unit of the alleged victim; or
(c) a member of the family unit of the alleged perpetrator; or
(d) the property of a member of the family unit of the alleged victim; or
(e) the property of a member of the family unit of the alleged perpetrator
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.
6.144 The focus of the definition is therefore not on categorising certain types of conduct—such as physical or emotional abuse—but rather on the effect of conduct on the victim. In this regard, the definition has a similar approach to that of ‘family violence’ adopted in the Family Law Act.
6.145 For emotional abuse to qualify as family violence under the Migration Regulations, it must be considered to have been serious enough to cause fear or apprehension for the person’s wellbeing or safety. Acts that only have the ‘effect of causing diminution of a person’s feeling of well being’ will not suffice.
Submissions and consultations
6.146 In the Consultation Paper, the Commissions asked how the application of the definition of ‘relevant family violence’ in the Migration Regulations 1994 (Cth) is working in practice. The Commissions foreshadowed that information received in answer to this issue may be used in any further inquiry by the ALRC into the treatment of family violence in federal legislative schemes.
6.147 Stakeholders stressed the particular vulnerability to coercion and control of victims whose migration status is uncertain due to factors such as: isolation; language barriers; lack of family or other support; unfamiliarity with the legal process; systemic barriers in accessing information and legal support; cultural values which might emphasise keeping quiet about spousal abuse; fear or mistrust of police; and concerns about potential racism and prejudice. In particular, they noted that women who have temporary visa status ‘have no access to income, medical or housing benefits’, and are often threatened with deportation or withdrawal of sponsorship.
6.148 The Magistrates’ Court and Children’s Court of Victoria submitted that it had ‘little insight’ into how the definition is working in practice, but noted that:
allegations are regularly made in family violence protection applications of threats to revoke visas or migration support, to ‘send a person home’ and respondents regularly suggest applicants have ‘made up’ allegations of family violence to circumvent migration regulations.
6.149 Some stakeholders submitted that the definition was not working well in practice, with one stakeholder stating that this was ‘partly because of the attitudes of [judicial officers] that victims are only seeking permanent residence’. National Legal Aid, for example, raised the following concerns about the application of the definition in practice:
The Migration Regulations 1994 (Cth) establish a procedure for non-judicially determined claims of family violence which involves referral to an ‘independent expert’ if the decision maker is not satisfied that an applicant has suffered relevant family violence. The independent expert’s opinion about whether the applicant has suffered relevant family violence, if lawfully made, is then binding on the decision maker. In Legal Aid NSW experience, there have been some cases in which independent experts have formed the opinion based on their notion of what constitutes family violence rather than applying the definition of ‘relevant family violence’ set out in the Regulations.
6.150 Stakeholders also noted the difficulties that victims face in meeting the evidentiary requirements of the Migration Regulations to prove family violence. The Victorian Government, for example, submitted:
Whilst noting that the review of the migration legislation is outside the terms of reference of this Inquiry, Victoria supports the issues highlighted by the Commission in the report and considerations for reform to this legislation … A particular issue that has been raised by Victorian stakeholders is that of ensuring access to the family violence provisions of the Migration Regulations 1994 …
For instance, the evidence requirements to prove domestic and family violence for the purposes of the [regulations]can be difficult for some women experiencing such abuse. Evidence can be judicial or non-judicial. Judicial evidence usually requires a final civil law protection order.
Research points to a high level of under-reporting of domestic and family violence, especially among immigrant and refugee women, and few proceed right through the court process. This would suggest that many immigrant and refugee women would have difficulty meeting the judicial evidence requirement of the regulations.
6.151 Other stakeholders addressed the content of the definition itself, submitting that the current definition:
‘is too narrow and should be broadened to reflect current understandings of family violence including having the reasonableness test removed;’
should reflect the broader definition used in the Victorian family violence legislation, or align more generally with the definition in the Family Law Act and all state and territory definitions of family violence; and
is problematic in its inclusion of the term ‘relevant’, as this is out of step with other state, territory and federal definitions of family violence, and appears to suggest that ‘relevance’ of violence is determined according to culture.
6.152 One stakeholder expressly agreed with the view expressed by the Commissions in the Consultation Paper that the family violence provisions would be better placed in the Migration Act rather than the regulations.
6.153 The Commissions note the concerns expressed by stakeholders in relation to both the content and application of the definition of family violence in the Migration Regulations. The Commissions’ tend to the view that the definition of family violence in the Migration Regulations is too narrow and should align with the definition the Commissions recommend be adopted in family violence legislation, the Family Law Act and the criminal law.
6.154 The Government may wish to reconsider the appropriateness of locating the family violence provisions—which affect the lives and safety of a particularly vulnerable group in our society—in regulations, where they are currently housed, as opposed to primary legislation. Such provisions may be more appropriately placed in the Migration Act 1958 (Cth).
6.155 However, the Commissions make no formal recommendations in this regard, noting that reform of migration legislation is outside the Commissions’ Terms of Reference. In the Consultation Paper the Commissions expressed the view that the Australian Government should initiate an inquiry into how family violence is treated in federal legislative schemes not falling within the present Terms of Reference. In July 2010, the Australian Government announced that it would ask the ALRC to review the impact of Commonwealth laws—including migration laws—on victims of family violence. The material received by the Commissions in this Inquiry concerning the family violence provisions of the Migration Regulations, including the definition of family violence, will therefore be considered more fully by the ALRC in its follow-on inquiry on family violence.
Migration Regulations 1994 (Cth) reg 1.21(1). The purpose of these regulations is discussed in Ch 4.
Helmsesi  MRTA 5231; Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291; P Easteal, ‘Violence Against Women in the Home: Kaleidoscopes on a Collision Course?’ (2003) 3 Queensland University of Technology Law and Justice Journal 1, 18. Compare Wright  MRTA 6123 where emotional and financial deprivation, and manipulation were considered because they caused fear or apprehension, and not just reduced wellbeing.
 Consultation Paper, Question 4–6.
 Ibid, [4.177].
 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010. See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
 Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010.
 P Easteal, Submission FV 39, 14 May 2010. See also Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010.
 P Easteal, Submission FV 39, 14 May 2010.
 Confidential, Submission FV 77, 2 June 2010.
 Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 77, 2 June 2010.
 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
 Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 77, 2 June 2010; P Easteal, Submission FV 39, 14 May 2010.
 Justice for Children, Submission FV 148, 24 June 2010.
 National Legal Aid, Submission FV 232, 15 July 2010.
 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010.
 Victorian Government, Submission FV 120, 15 June 2010.
 Women’s Legal Services Australia, Submission FV 225, 6 July 2010.
 Ibid; Berry Street Inc, Submission FV 163, 25 June 2010.
 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 Education Centre Against Violence, Submission FV 90, 3 June 2010.
 Confidential, Submission FV 78, 2 June 2010.
 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 Consultation Paper, [1.73]–[1.74].
 T Plibersek, ‘Government Launches Two New Anti-Domestic Violence Initiatives’ (Press Release, 16 July 2010).