The family violence exception

How the exception works

20.22 The family violence exception is set out in the criteria for the relevant visa under sch 2 to the Migration Regulations. The exception is usually expressed as an alternate ground to the requirement for a genuine and continuing spouse or de facto relationship. DIAC’s guidelines for decision makers—the Procedures Advice Manual 3 (PAM 3)—state that, broadly, the family violence exception allows for the grant of a permanent visa to be considered if:

(a) the partner relationship has broken down; and

(b) depending on the visa class applied for:

the visa applicant; or

a dependent child of that applicant/or that applicant’s ex-partner; or

(c) a member of the family unit of that applicant and/or of that applicant’s ex-partner has suffered family violence committed by the visa applicant’s ex-partner.^[24]

20.23 In addition to the partner visa class, the family violence exception can be invoked in certain skilled stream (business) visa classes.^[25] In those cases, the secondary visa applicant can rely on the family violence exception if the relationship has ceased, and the secondary visa applicant, or a member of his or her family unit, has suffered family violence committed by the primary visa applicant.^[26]

20.24 In addition, in order to meet the family violence exception, applicants must meet the requirements for a judicially or non-judicially determined claim of family violence prescribed in regs 1.23(2)—(14). The ALRC considers issues relating to the evidentiary requirements in Chapter 21.

Family violence in partner cases

20.25 DIAC statistics show that only a small percentage of partner visa cases involve family violence claims. Although the number of claims has been steadily increasing since 2005, the number of claims, on average, account for approximately 1.5% of all partner visa cases.^[27] However, there are several factors that may influence this result.

20.26 First, research suggests that family violence tends to be under-reported generally, and particularly in migrant communities, such that these numbers may not accurately reflect the extent of the problem.^[28] This concern was expressly highlighted by one stakeholder.^[29]

20.27 Secondly, the ALRC understands that, in cases where the family violence exception was not claimed before a DIAC delegate, but made for the first time before the MRT, this is not recorded in the MRT’s official statistics.^[30]

Policy tensions

20.28 In Chapter 2, the ALRC provides a snapshot of some of the key themes and policy tensions that are common in each of the Inquiry areas. The policy challenge in this area—as emphasised to the ALRC by stakeholders in the course of this Inquiry—is, on one hand, to ensure accessibility to the family violence provisions for genuine victims of family violence while, on the other, preserving the integrity of the visa system. Accessibility is a broad concept, but in this context refers to a number of things that may help to ensure that a victim can take measures to protect his or her safety, including:

• removing barriers to accessing the family violence exception;

• improving the ability of victims to access family violence services;

• empowering victims to access the legal system through better education and information dissemination;

• ensuring that visa decision makers and the legal system in general are aware of, and sensitive to family violence issues.

20.29 The visa system is the primary measure giving effect to the object of the Migration Act to regulate ‘in the national interest, the coming into, and presence in, Australia of non-citizens’.^[31] Integrity concerns in this context relate to ensuring that the visa system is not abused or manipulated to obtain migration outcomes that are not intended.

20.30 The tension is manifested in a number of issues examined in this chapter, and particularly in Chapter 21, in relation to the evidentiary requirements. For example, if the evidentiary requirements for making family violence claims are too strict, there is a risk that genuine victims will be unduly denied access to the family violence exception. On the other hand, if the evidentiary bar is set too low, this may encourage vexatious claims and provide an incentive to use a claim of family violence as a means to obtain a migration outcome.

20.31 The challenge in terms of protecting the safety of victims of family violence lies in examining whether the right balance has been struck between these two competing policy objectives, surrounding the operation of the family violence exception.

Definition of ‘relevant family violence’

20.32 The Migration Regulations define the term ‘relevant family violence’ to mean a reference to 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 the alleged victim; or

(e) the property of a member of the family unit of the alleged victim; or

(f) 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.^[32]

20.33 This definition takes a similar approach to the definition of family violence in the Family Law Act 1975 (Cth) in giving focus to the effect of the conduct on the victim, rather than categorising types of conduct.

20.34 In Chapter 3, the ALRC considers the issue of the definition of family violence, and makes proposals that the Migration Regulations (Cth) be amended to insert a definition of family violence consistent with that recommended by the ALRC and New South Wales Law Reform Commission in the report Family Violence—A National Legal Response .^[33]

Violence perpetrated by a family member of the sponsor

20.35 As noted in Chapter 3, in addressing the issue of the definition of family violence, a number of stakeholders argued that the family violence exception should apply in instances where the violence was perpetrated by a member of the sponsor’s family, to take into account the nature, features and dynamics of family violence. Under the current legislative arrangements, sch 2 to the Migration Regulations provide, for each visa subclass, who may be an ‘alleged perpetrator’ and ‘alleged victim’ for the purposes of the family violence exception. In practice, the requirements mean that, in most instances, the ‘alleged perpetrator’ is the sponsor and the ‘alleged victim’ is the visa holder.

20.36 A number of stakeholders argued that the legislation should be changed to allow the family violence exception to apply in instances where a family member of the sponsor committed the family violence against the visa holder.^[34] For example, ANU College of Law argued that the current legislative arrangements do not correspond with the dynamics of family violence. In its view, there is:

a serious fault in the wording of Division 1.5—Special provisions relating to family violence—and the wording in Schedule 2 visa criteria for various visas that contain the family violence exception. This is that the legislation assumes that the perpetrator is the sponsoring partner … such that only violence committed by the sponsoring partner (whether against the applicant partner or family member) will trigger the exception.^[35]

20.37 Similarly, the Refugee and Immigration Legal Service (RAILS) submitted that the family violence exception should apply where family violence has been committed by ‘relatives in the household, other than the sponsoring spouse’ or where ‘the sponsoring spouse has not directly committed the violence, but has not taken steps to protect their partner against this violence’.^[36]

ALRC’s view

20.38 The ALRC considers that the issue of whether the family violence exception should apply in instances where the violence was perpetrated by a family member of the sponsor must be considered within the policy principles underpinning the family violence exception. That is, a migration outcome obtained on a partner visa is based on a genuine and continuing relationship between the sponsor and the visa applicant, or in the cases of secondary visa applicants, the relationship with the primary visa applicant. The family violence exception reflects the policy that a temporary visa holder should not have remain in a violent relationship with the sponsor or primary visa applicant in order to preserve his or her eligibility for permanent residence.

20.39 While the ALRC acknowledges that visa holders may be subjected to violence by a sponsor’s family—consistent with the nature and dynamics of family violence—there may be situations where, despite this, the couple remain in a genuine and continuing relationship. For example, there may be instances where both the visa applicant and the sponsor are subjected to family violence by the sponsor’s family members, who may disapprove of the relationship.

20.40 The ALRC considers that it is inconsistent with the policy for the family violence exception to apply where the relationship remains genuine and ongoing, without some risk of the integrity of the visa system. Rather, in such circumstances, it should be the role of the family law, criminal law, or other legal systems—rather than a migration outcome—that should be entrusted with protecting the safety of the visa applicant.

20.41 However, the ALRC considers that where the relationship has broken down, and family violence has been perpetrated by a family member of the sponsor, at the instigation or coercion of the sponsor, the violence can be attributed to the sponsor by recognising the instigation or coercion as a form of coercive and controlling conduct. Accordingly, in Chapter 3 the ALRC proposes that guidance should be provided in PAM 3 that the concept of ‘controlling and coercive conduct’ can include instances where the sponsor instigates or coerces a third party to perpetrate family violence against the visa holder.^[37]