Summary

20.1 This chapter considers a number of broad issues surrounding the family violence exception contained in the Migration Regulations 1994 (Cth). The exception—which is invoked mainly in partner visa cases—provides for the grant of permanent residence to victims of family violence, notwithstanding the breakdown of the spouse or de facto relationship on which their migration status depends.^[1]

20.2 A major focus of this chapter concerns whether the family violence exception should be expanded to apply to a broader range of onshore permanent and temporary visa categories, including the Prospective Marriage (Subclass 300) visa.

20.3 The ALRC considers that the family violence exception should be made available to all secondary visa applicants for onshore permanent visas. Similarly, the ALRC proposes that the family violence exception should be made available to holders of a Prospective Marriage (Subclass 300) visa who have experienced family violence, but who have not married their Australian sponsor. Beyond these cases, the ALRC acknowledges that those on other temporary visas may also experience family violence. However, in light of the need to ensure the integrity of the visa system the ALRC does not propose that the family violence exception be extended to apply to temporary visa holders.

20.4 The ALRC considers that the above proposals need to be complemented by adequate education, training and information dissemination to all those within the system. Accordingly, the ALRC proposes that the Australian Government should ensure consistent and regular education and training in relation to the nature, features and dynamics of family violence, including its impact on victims, for visa decision makers, competent persons and independent experts, in the migration context. The ALRC also proposes that information about legal rights, family violence support services, and the family violence exception should be provided to visa applicants prior to and upon arrival in Australia, and that such information should be provided in a culturally appropriate and sensitive manner.

Terminology

20.5 In this Inquiry the ALRC uses the expression ‘family violence’, as defined in Chapter 1.^[2] A number of overseas jurisdictions use the term ‘domestic violence’, where that is the case, the ALRC uses the term in such places.

20.6 This chapter will also refer to ‘primary’ and ‘secondary’ applicants for a visa. Schedule 2 of the Migration Regulations prescribes, for all visa subclasses, ‘primary’ and ‘secondary’ criteria that must be met for the grant of a visa. A ‘primary visa applicant’ refers to a person who has applied for, and seeks to meet the primary criteria for a visa. A ‘secondary visa applicant’ is a person who is included in a visa application as a member of the family unit of a primary visa applicant, and is dependent therefore on the migration status of the primary visa applicant. In most instances, secondary visa applicants are the spouse and/or children of the primary applicant.

Family violence and immigrant communities

20.7 As noted in Chapter 1, the National Council to Reduce Violence against Women and their Children (the National Council) in the report, Time for Action, provided a summary of the extent of the problem of violence against women in the Australian community.^[3] In doing so, it highlighted that while violence ‘knows no geographical, socio-economic, age, ability, cultural or religious boundaries’, the experience of violence is not evenly spread, and migrants may experience violence in different and/or disproportionate ways.^[4] Stakeholders have highlighted numerous challenges faced by victims of family violence from migrant communities and culturally and linguistically diverse (CALD) backgrounds in integrating into the Australian community. Such challenges include: language barriers; isolation; precarious economic and employment situations; and the inability—or in some cases hesitancy—to access the legal system.^[5]

20.8 The ALRC acknowledges that these challenges may exacerbate family violence dynamics in immigrant and CALD communities and, therefore, they should be kept in mind in examining whether legislative arrangements are adequately ensuring the safety of victims and their families.