Australia’s partner visa scheme

20.9 Partner visas form part of Australia’s family migration stream, and allow non-citizens to enter and remain in Australia on the basis of their spouse or de facto relationship (both opposite and same-sex) with an Australian citizen or permanent resident.^[6] All applicants for a partner visa must be sponsored by an Australian citizen or permanent resident.^[7]

Two-stage process to permanent residence

20.10 To obtain permanent residence on a partner visa, applicants must go through a two-stage process.^[8] Irrespective of whether the visa application is made onshore or offshore, a partner visa application is an application for both a temporary and permanent visa.^[9] In the first stage, a temporary visa is granted for a period of two years, on the basis that the parties are in a genuine spouse or de facto relationship.^[10] After this probationary period, the relationship is reassessed and a permanent visa can only be granted if, among other things, the spouse or de facto relationship remains ‘genuine and continuing’.^[11]

20.11 Thus, all temporary partner visas involve an assessment as to whether the relationship is ‘genuine and continuing’ at the time the application is lodged, and at the time of the decision to grant the temporary visa. Permanent partner visas only involve an assessment as to whether the relationship remains ‘genuine and continuing’ at the time of the decision to grant the visa, after the initial two-year period.

20.12 The two stages can be illustrated as follows:

Prospective marriage visas

20.13 A non-citizen who wishes to enter Australia for the purpose of marrying an Australian sponsor can apply for a Prospective Marriage Visa (Subclass 300).^[12] This provisional visa allows the holder to enter and remain in Australia for a nine-month period, within which the marriage must take place.^[13] After the marriage, an application can be made for permanent residence on the basis of the married relationship via the two-stage process outlined above.

20.14 The three stages can be illustrated as follows:

The visa application process

20.15 Applications for partner visas are considered, in the first instance, by an officer of the Department of Immigration and Citizenship (DIAC) as a delegate of the Minister for Immigration and Citizenship (the Minister). In the event of an unfavourable decision, applicants can apply for merits review of the visa decision to the Migration Review Tribunal (MRT).^[14]

Fee waivers in review applications

20.16 When making an appeal to the MRT, a requirement for a valid review application requires payment of an application fee.^[15] Prior to 1 July 2011, the application fee for review in an MRT case was $1400.^[16] This amount is refundable to an applicant if a favourable decision on the case is made.^[17] Prior to 1 July 2011, the fee could be waived, in its totality, where the relevant decision-maker is satisfied that ‘the fee has caused, or is likely to cause, severe financial hardship to the review applicant’.^[18] However, the Migration Amendment Regulation 2011 (No 4) (Cth) removed this ability, ^[19] and, a separate piece of amending legislation increased the review application fee to $1540.^[20] As a consequence, for applications lodged after 1 July 2011, where the MRT is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship’ on a review applicant, it can reduce the fee by 50% to $770.^[21]

ALRC’s views

20.17 The ALRC is concerned that the removal of the ability of the MRT to waive the review application fee in its totality may have a detrimental effect on victims of family violence who are suffering severe financial hardship. As discussed in Chapter 5, financial security and independence are crucial factors that help a person to leave a violent relationship and thus protect their safety. Stakeholders in this Inquiry have also emphasised that migrant victims of family violence often have little or no income and are reliant on overstretched pro bono legal services for legal representation.^[22] Depending on their visa class, some victims of family violence may be unable to access any social security payments or entitlements.

20.18 The ALRC therefore considers that there is a real risk that victims of family violence who are facing severe financial difficulties will be unable to pay even the reduced fee required to access merits review, which may ultimately prevent access to the family violence exception.

20.19 Further, to require victims of family violence to pay the reduced fee of $770—in circumstances where that money may otherwise have been used to seek medical assistance, accommodation, counselling, or otherwise to leave an abusive relationship—reduces their ability to take measures to protect their safety.

20.20 Later in this chapter, the ALRC raises the possibility for temporary visa holders and prospective marriage (Subclass 300) visa holders to be able to access ‘Special Benefit’ payments under the Social Security Act 1991 (Cth).^[23] Proposals to this effect are made in Chapter 7, which if accepted, may provide some assistance to review applicants.

20.21 In light of the concerns raised above, the ALRC seeks stakeholder views as to whether the removal of the MRT’s power to waive the review application fee will, in practice, make it difficult for victims of family violence to access merits review and, therefore, the family violence exception.