The scope of the family violence exception

20.42 In the Migration Issues Paper, the ALRC asked whether the family violence exception under the Migration Regulations should be expanded to cover other visa categories.^[38] Stakeholders addressed this issue by considering the merits of applying the family violence exception to temporary or permanent visas—rather than specific subclasses of visas. The next two sections deal with whether the family violence exception should be expanded to cover permanent visas and temporary visas.

Permanent visas

Submissions and consultations

20.43 The majority of submissions expressed strong support for extending the scope of the family violence exception to cover secondary visa applicants applying onshore for a permanent visa.^[39]

20.44 In particular, stakeholders argued that where temporary or provisional visas provide a pathway to permanent residency—that is, where the permanent visa requires the holder to have previously held a temporary or provisional visa—the nature of the dependency between the primary and secondary visa applicant may exacerbate family violence dynamics. For example, National Legal Aid expressed concern that the threat of removal of the application for a permanent visa is one way that family violence can be perpetuated:

We are of the view that family violence … can potentially arise in any kind of visa … our experience is that the primary visa applicant may use the conditions of the temporary visa to perpetrate what is in effect further family violence on the dependents of the visa holder by threatening to remove the spouse from the visa and keep the children on the visa. Towards the end of the temporary visa, when an application is made for permanent residency, it is also not uncommon for an application to be made for permanent residency on behalf of the primary visa applicant and the children, leaving the spouse of the visa applicant without legal status upon expiration of the temporary visa.^[40]

20.45 The Immigration Advice and Rights Centre Inc (IARC), and Domestic Violence Victoria and others, also raised concerns in relation to secondary visa holders of a Temporary Business (Long Stay) Subclass 457 visa who were reliant on a relationship with the primary visa holder to obtain permanent residence. The IARC submitted that:

The law should be amended in such a way that when a permanent visa application is lodged (whether 2-stage economic visa or otherwise) by these primary applicants which include their dependent family members as secondary applicants, the dependent members’ application should continue to be considered if the relationship has subsequently ceased due to family violence. Whether the permanent visa should be granted should depend on the grant of the perpetrator primary applicant’s permanent visa subject to the usual public interest criteria.^[41]

20.46 The ANU College of Law stressed that, in the case of visas with a two-stage pathway to permanent residence, it was essential that the family violence exception could be assessed at both the time of application and the time of decision for the permanent visa, because:

At present, a secondary visa applicant must still be a member of the family unit of the primary applicant at time of application. As seen above, the family may have already been living in Australia on the provisional visa for a number of years before the permanent visa is applied for. We submit that it is important to allow for a partner or other family member to escape family violence without losing their eligibility for permanent residency.^[42]

20.47 More fundamentally, the ANU College of Law questioned why the current legislative arrangements allow access to the family violence exception for some permanent onshore visa categories but not others. In its view, ‘to provide protection in one pathway of migration and not in analogous ones is inconsistent and bad policy’:

A further example of a two-stage migration track that does not include the family violence exception is that of the temporary contributory parent visa followed by the permanent contributory parent visa onshore.^[43]

However the family violence provisions are included in the Employer Nomination Scheme visa subclass 856, and the Distinguished Talent visa subclass 858. It is not clear why these visas, which can be applied for without ‘serving time’ on a pre-requisite provisional visa, offer the protection of the family violence provisions but onshore permanent visas do not. For instance, secondary applicants for the carer, remaining relative, aged parent, or business talent visas are not afforded this protection.^[44]

20.48 Domestic Violence Victoria and others in a joint submission also expressed concern about the situation of those who arrive as secondary visa applicants of someone seeking asylum in Australia, and who experience family violence. It was argued that such persons, as a result of the family violence, may have an independent claim for refugee status, but are barred from doing so because of s 48A of the Migration Act 1958 (Cth):

A woman who has applied for protection as a secondary applicant with her husband is barred from applying for protection again by s 48A of the Migration Act. However, separating from her husband due to experiences of family violence may actually give rise to an independent refugee claim for a woman from certain religious and cultural groups in certain countries. As it currently stands a woman in this position … is reliant on the Minister exercising his non compellable and non reviewable discretion under s 48B of the Migration Act in order to be allowed to apply for protection again.

It may be that certain exceptions in the case of family violence could be added to s 48A of the Migration Act to account for circumstances of family violence occurring in Australia which may give rise to an independent refugee claim for a woman who has already applied for protection as part of a her husband’s application.^[45]

ALRC’s views

20.49 For a number of reasons, the ALRC considers that the family violence exception should be made accessible to secondary visa applicants where an application for a permanent visa is made onshore.

20.50 First, the ALRC is concerned that the nature of the dependence between primary and secondary visa applicants may exacerbate family violence dynamics for those who are on temporary visas with a pathway to permanent residence. As the ALRC argued in Chapter 3, the threat of removal from Australia—or in this case, the consequences of not being included in a permanent visa application—is one form of controlling and coercive conduct that may constitute family violence in the migration context.

20.51 Given that there is often a long transition period from a temporary to permanent visa, there is a real risk that the secondary visa holder will have endured significant family violence by the time an application for a permanent visa is made. As highlighted below, this situation may be exacerbated where a person on a temporary visa is not able to regularly access family violence services, health services, or financial assistance, to help him or her deal with family violence problems. The ALRC considers it entirely consistent with the spirit of the family violence exception that such persons should be able to access the family violence provisions once they are included in an application for a permanent visa.

20.52 During the course of the Inquiry, the ALRC learned that the Australian Government is committed to ensuring the integrity of temporary visas by placing much stricter control over onshore links from temporary to permanent residence, especially in relation to temporary skilled and student visas.^[46] However, to the extent that these links still exist in the student and skilled visa categories, and indeed in other visa categories, the ALRC considers that secondary visa holders should be able to access the exception when an application for a permanent visa is made.

20.53 Secondly, there appears to be no sound policy reason why the family violence exception should apply to protect secondary visa applicants on certain business (skilled streamed) visas—as it currently does—but not to other onshore permanent visas. If there is potential for family violence to arise, the ALRC considers that the inconsistent and differential application of the family violence exception across different visa subclasses is potentially detrimental to the safety of victims of family violence. Consistency in the application of the family violence exception across visa subclasses where family violence may occur addresses the key theme in this Inquiry—that of accessibility.

20.54 Lastly, in making this proposal, the ALRC considers it important that where there is a pathway to permanent residence, the family violence exception should be accessible at both the time of application, and the time of decision in the relevant criteria for the permanent visa. This would ensure that such persons can remove themselves from the violent relationship at the earliest stage. For other permanent visas, where there is no pre-requisite temporary visa, the ALRC considers it is appropriate that the family violence exception can be accessed by secondary visa applicants at the time of the decision. This would cover instances where, once the application for the permanent visa is made onshore, the secondary visa applicant becomes a victim of family violence and may feel compelled to stay in the relationship so as not to jeopardise the application.

Secondary visa applicants for protection visas

20.55 While the family violence exception in the Migration Regulations does not extend to refugee claims—because claims for refugee status are assessed against the UN Convention Relating to the Status of Refugees—the ALRC acknowledges concerns raised by Domestic Violence Victoria and others about secondary visa applicants whose spouse or family member has made an application for a protection visa.

20.56 The ALRC acknowledges that there may well be instances where such secondary visa applicants are subjected to violence once in Australia, but due to the operation of the s 48A bar, are not able to apply for another protection visa, in their own right, onshore. The ALRC notes that s 48A only applies where an application for a protection visa has been made, and the grant of the visa has been refused (whether or not the application has been finally determined).^[47] This means that where the application has been refused by DIAC, a secondary visa applicant is barred from making a further protection visa application in his or her own right. As explored in Chapter 22, family violence can be grounds on which a person may claim, and be granted, refugee status in Australia.

20.57 The ALRC is therefore interested in stakeholder views about how the ministerial discretion under s 48B—to waive the s 48A bar—is working in relation to victims of family violence, and whether there is a need to amend the Migration Act to ensure that such victims can make a further application for a protection visa onshore.

Temporary visas

20.58 The Migration Act defines a ‘temporary visa’ as a visa that allows the holder to remain in Australia (whether also to travel and enter Australia) for a specified period while the holder as a specified status.^[48]

Submissions and consultations

Access to the family violence provisions

20.59 Some submissions explicitly noted that the family violence exception should not apply to those on temporary visas.^[49] The Law Institute of Victoria pointed to practical problems in expanding the family violence exception to cover temporary visa holders, where the alleged victim is a secondary visa applicant:

If the family violence exception was expanded to temporary visas, a link would be maintained between the primary and secondary visa applicant, even though the couple have separated, because the secondary visa holder is wholly dependent on the validity of the primary visa and may then be limited in further visa options. The fate of the victim of family violence would still therefore be dependent on their former spouse.^[50]

20.60 Accordingly, the Law Institute of Victoria recommended:

that a new temporary visa subclass be created for former spouses of temporary visa holders, who are victims of family violence. The new visa category could be granted for a temporary period such as 6 or 12 months, to allow the victim time to access support and decide how to proceed (for example, make a further visa application or exit Australia).^[51]

20.61 Visa Lawyers Australia did not believe that other categories of visa applicants —beyond partner visas—should have access to the family violence exception unless certain conditions apply, such as:

(1) The victim of family violence is dependent on the perpetrator’s visa to remain lawfully in Australia; and

(2) The couple’s relationship is a ‘long-term relationship’, as per the definition in the Migration Regulations 1994; or

(3) The couple have been lawfully resident in Australia for a minimum period of time, say 2 years; and

(4) The couple have:

(i) Submitted a permanent visa application; or

(ii) Have children who are:

(a) Studying full time; or

(b) Despite the family violence which has occurred, the parents will share parental responsibilities, as evidenced by a court order or other formal arrangement between the two parties.^[52]

20.62 In the alternative, Visa Lawyers Australia supported the creation of a new visa, which would be granted through the exercise of ministerial intervention under s 351 of the Migration Act, thereby, ‘leaving it to the Minister’s discretion to consider the particular facts of the case to determine whether the victim should be entitled to a further temporary or permanent stay’.^[53]

Access to family violence services and social security

20.63 While some stakeholders did not support extending the family violence exception to cover temporary visa holders, concerns were raised about the limited ability for temporary visa holders to access crisis services, accommodation, and income support.^[54] For example, Domestic Violence Victoria and others in a joint submission submitted that, in their experience:

Access to health, counselling, family violence and sexual assault services is variable and changeable for women on temporary visas. Each visa category carries different entitlements and these entitlements change regularly. While some agencies will provide a service to all women regardless of visa category, others restrict their services to those on permanent visas. This means that the system is extremely complex, confusing and difficult to navigate, both for service providers making referrals as well as for women attempting to link into the system.

Access to emergency accommodation for this group of women is very limited … the lack of housing options, ineligibility for public and community housing and lack of income support all limit the capacity of family violence services to support women without residency rights.^[55]

20.64 These concerns were captured in a case study provided in the submission from Women Everywhere Advocating Violence Elimination (WEAVE):^[56]

ALRC’s views

Access to the family violence exception

20.65 The ALRC acknowledges that the integrity of the visa system requires that temporary visas, by their nature, do not envisage an applicant being in Australia beyond the specified period contemplated by the relevant visa. The ALRC considers that any move to extend the family violence exception to apply to temporary visas, such as student or tourists visas, does not uphold the integrity of the visa system. That is, a person on a temporary visa should not be automatically granted permanent residence solely by being a victim of family violence. This has the obvious risk of creating an incentive to claim family violence as a means of securing a migration outcome.

20.66 A situation involving a temporary visa holder can be distinguished from circumstances in which a secondary visa applicant has been in Australia for a number of years, and makes an application for a permanent visa onshore. As the ALRC has argued above, such persons may be in Australia for a considerable period of time, with the legitimate expectation that he or she will be included in an application for permanent residence when an application for a permanent visa is made. It accords with the spirit of the family violence exception to allow a secondary visa applicant to access the exception when an application for a permanent visa is made onshore. The ALRC considers that no such expectation for a permanent visa outcome is present for primary or secondary holders of a temporary visa.

20.67 In any event, the ALRC is of the view that there would be practical difficulties—as highlighted by submissions—in extending the family violence provisions to cover temporary visas—in particular, secondary holders of temporary visas.

Ministerial intervention

20.68 The ALRC shares concerns raised in submissions that persons on temporary visas may be subjected to family violence whilst in Australia. The ALRC is interested in stakeholder views as to whether temporary visa holders should be able to apply for ministerial intervention under s 351 of the Migration Act, in circumstances where a decision to refuse a visa has not been made. The ALRC considers that ministerial intervention would cover unique or exceptional circumstances—such as, where a temporary visa holder suffers significant harm as a result of family violence—that may compel the granting of a visa on compassionate grounds.

20.69 The ALRC notes in Chapter 21 that, in Canada, a person on a temporary visa can still apply for permanent residence on ‘Humanitarian and Compassionate’ grounds if he or she has experienced family violence.^[57] A number of considerations must be taken into account in considering an application on this basis, including: establishment in and ties to Canada; the best interest of any children involved; health considerations; consequences of the separation of relatives; factors in the applicant’s country of origin; and the degree of establishment in Canada.^[58] These factors suggest a policy that a victim of family violence, who has a degree of establishment in the country, can be considered for permanent residence notwithstanding that he or she is on a temporary visa. The ALRC considers that the approach taken in Canada could provide a useful model in the Australian context.

Access family violence services and social security

20.70 The ALRC shares stakeholder concerns that secondary temporary visa holders are not able to regularly access family violence services, income support, or crisis accommodation, and that this may jeopardise their safety. On the one hand, there is an argument that if the relationship on which the visa status depends has ended, the person should return home to the country of origin. On the other, Australia has moral and legal obligations to ensure the safety of victims of family violence, once they are in Australia, whether temporarily or permanently.

20.71 There is a legitimate question as to whether, and to what extent, this should be a responsibility of the migration system, or whether it is more appropriately addressed through the social security or other law systems. In the ALRC’s preliminary view, there is a role for the migration system, to the extent that certain visas may in practice—as suggested by stakeholders—restrict the ability of victims to access family violence services and social security payments and entitlements. The ALRC considers that access to appropriate social security payments and entitlements are important in empowering victims to leave violent relationships, and hence protect their safety.

20.72 As noted in Chapter 7, a general principle of social security law is that a person must be an Australian resident—defined as an Australian citizen, a permanent visa holder, or a Protected Special Category visa holder—in order to qualify for social security payments and entitlements.^[59] In addition to meeting the residence requirements, some payments require an applicant to also meet the ‘newly arrived resident’s waiting period’, being a period of, or periods totalling, 104 weeks (2 years) before benefits are payable.^[60]

20.73 However, the Minister for Families, Community Services and Indigenous Affairs has power to make determinations to allow the holders of particular temporary visas to meet the residence requirements for Special Benefit.^[61] Currently, such determinations are in force for nine types of temporary visa, including Partner (Subclass 820 and 209) visas.^[62]

20.74 The ALRC is therefore interested in stakeholder comments about whether those on temporary visas should be able to access Special Benefit under the Social Security Act and, if so, which particular temporary visa classes should be exempt from the residence requirements under the Social Security Act to allow holders to access such benefits. The ALRC notes, for example, that submissions highlighted family violence concerns in relation to those on student and tourist visas, as well as secondary holders of subclass 457 visas. It would be difficult to expand Special Benefit payments to all temporary visa subclasses without jeopardising the integrity of the social security system. A question in relation to this issue is raised in Chapter 7.^[63]

Prospective marriage visas

20.75 In Equality Before the Law the ALRC expressed concerns in relation to the position of women entering Australia on a Prospective Marriage Visa (Subclass 300).^[64] As noted above, the prospective marriage visa holder must marry his or her Australian sponsor within the visa period (nine months), before applying for a temporary or permanent spouse visa.^[65]

20.76 At the time of applying for a temporary Partner Visa (Subclass 820), applicants who are holders (or previous holders) of a Prospective Marriage Visa (Subclass 300) can invoke the family violence exception. However, the family violence exception applies only if: the person has married his or her Australian sponsor; the marriage has broken down; and there has been family violence committed against the visa applicant, a member of the family unit of the applicant, or a dependent child of the couple by the Australian partner.^[66]

20.77 In effect, if the marriage never takes place, for whatever reason, the non-citizen who is a victim of family violence is precluded from accessing the family violence exception. In the report Equality Before the Law: Justice for Women (ALRC Report 69), the ALRC highlighted stakeholder concerns that ‘the provisions treat women as a commodity in that if the relationship does not work out, the woman can be sent back to her country of origin’.^[67] Similar concerns have been expressed by a number of commentators.^[68] For example, Dr Edwin Odhiambo-Abuya argued that:

Despite the reality of domestic violence occurring in such relationships … the law fails to recognise there is little or no difference between domestic violence inside or outside the marriage for immigrant victims. It is easy to imagine that both married and unmarried victims have similar challenges to getting citizenship. Based on this assumption, it would be proper to amend this part of the legislation to bring it to terms with reality. Effectively, this will make fiancées eligible to benefit from domestic violence concessions currently offered to their married counterparts under immigration law.^[69]

20.78 The requirement for a Prospective Marriage Visa (Subclass 300) holder to have married his or her sponsor before accessing the family violence exception, was reinforced by legislative amendments affecting visa applications made on or after 9 September 2009, these require that the family violence ‘must have occurred while the married relationship or de facto relationship was in existence between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator’.^[70]

20.79 In Equality Before the Law, the ALRC recommended that the family violence exception should apply to partners who have been sponsored on a Prospective Marriage Visa (Subclass 300), whether the breakdown occurred at any time before the marriage, or after marriage, but before an application for permanent residence has been lodged.^[71]

Submissions and consultations

20.80 In the Migration Issues Paper, the ALRC asked whether the Migration Regulations should be amended to allow former or current Prospective Marriage (Subclass 300) visa holders to access the family violence exception when applying for a temporary visa in circumstances where he or she has not married the Australian sponsor.^[72]

20.81 A majority of stakeholders were of the view that the family violence exception should extend to Prospective Marriage (Subclass 300) visa holders.^[73] In expressing support for such an amendment, submissions highlighted the particularly vulnerable position of those on a prospective marriage visa in relation to other partner visa categories. The ALRC also heard in consultations that—in addition to the threat of removal—given their short time in Australia, prospective marriage visa holders who experience family violence are highly vulnerable due to isolation, lack of knowledge of the legal system and the inability to access services.

Vulnerable position of prospective marriage visa holders

20.82 Stakeholder concerns about the vulnerable position of prospective marriage visa holders were exemplified in the submission by Erskine Rodan and Associates, who said that, in their experience:

Some men are able to convince vulnerable women to move to Australia on the promise that he will one day marry her. However, once in Australia, the woman becomes the victim of abuse and then ultimately, the engagement is called off. Some women are falsely imprisoned in their fiancés’ homes and are regularly raped—an action justified by their abuser with the promise of marriage. Many women are financially and psychologically abused … Such cases seem to equate to sex-trafficking of women who have come to Australia in good faith. Despite this, however, these women are not entitled to rely on the family violence exception.^[74]

20.83 The Australian Family and Domestic Violence Clearinghouse (ADVFC) was concerned that ‘sponsors use this requirement to marry as a weapon to control their prospective spouses’.^[75] In a joint submission, Domestic Violence Victoria and others expressed similar concerns: that, in practice, the Migration Regulations ‘create opportunities for abuse of the system’.^[76]

20.84 The ANU College of Law argued that it is arbitrary to allow access to the family violence provisions only to those who have married:

Given that the prospective marriage visa presupposes an existing partner-like relationship, with full potential for family violence to manifest, it is an arbitrary and insupportable distinction to make between applicants who have married their sponsor (who can access the family violence provisions) and applicants who have not married their sponsor but who are victims of family violence committed by their sponsor (who can’t access the family violence provisions).^[77]

20.85 The IARC, while acknowledging the policy position that, if the marriage does not eventuate, a prospective marriage visa holder should return home to the country of origin, argued that in reality, a range of cultural, familial and social factors may force victims to remain in violent relationships to avoid the negative consequences of returning home unharmed:

There are many subclass 300 visa entrants who find it very difficult to return to their respective countries when their marriage fails to proceed. The difficulties include cultural (shame that it would bring to themselves and their families, e.g where customary or religious marriage has occurred before they departed their country), financial (no independent means to support themselves) and social (leaving their respective fiancés results in situations where their family disowns them or, worse, persecutes them due to their unwillingness to submit themselves to their sponsors). The notion of protecting visa applicants who do not submit themselves to an otherwise abusive relationship seems at odds with the thought that these victims should remain in the relationship and marry the perpetrator sponsoring spouse.^[78]

Preserving the integrity of the visa system

20.86 Stakeholders also expressed an awareness of the need to balance the protection of victims of family violence with the integrity of the visa system as a strong counter balancing theme. For example, the Law Institute of Victoria acknowledged that:

A prospective marriage visa is a temporary visa and that the purpose of the marriage requirement is to ensure the integrity of the Partner Visa program, which is intended to facilitate the migration of married and de facto partners.^[79]

20.87 Visa Lawyers Australia, however, submitted that allowing prospective marriage visa holders to access the family violence provisions would not harm the integrity of the visa system:

We assume that the exclusion of subclass 300 visa holders from the family violence provisions is justified on the basis that they have not shown their commitment to remaining in Australia by marrying their Australian spouse. However, for the grant of a prospective marriage visa, DIAC has had to accept that the visa applicant has a genuine intention to marry their partner once they arrive in Australia. The genuineness of this intention can be further confirmed by the person’s travel to Australia and the contract they have with their Australian fiancé once they are in Australia. Evidence of this could be provided with any application an unmarried sc 300 visa holder makes for a spouse visa under the family violence provisions. Opening the Partner Visa subclass 820 to unmarried sc 300 visa holders cannot harm the integrity of the family violence scheme, given the extensive safeguards in place to determine whether family violence has occurred.^[80]

20.88 Similarly, WEAVE argued that the genuineness of the relationship should not be a factor to take into consideration because ‘such assessment would have taken place when the visa for temporary residence was approved’.^[81]

20.89 In consultations, the ALRC heard concerns that extending the family violence provisions to prospective marriage visa holders would risk ‘incentivising’ family violence to obtain a quick, permanent migration outcome. That is, by claiming to have suffered family violence, a prospective marriage visa holder can bypass the marriage requirement, and the need to be on a temporary spouse visa for two years before the grant of the permanent residence visa can be considered. For example, in consultation, DIAC recounted that it was aware of a number of family violence claims involving applicants where the applicants were represented by the same migration agent, had used the same psychologists and social worker, and claimed to have suffered family violence based on similar specific incidents. Such cases raise concerns about possibly fraudulent or manipulated claims and possible abuse of the migration system to secure a permanent visa outcome.^[82]

Reform options

20.90 In addition to allowing prospective marriage visa holders to access the family violence exception, stakeholders outlined in consultations a range of other possible options for reform to address issues which arise in relation to the prospective marriage visa. These options included: the introduction of a new temporary visa; and abolishing the prospective marriage visa in favour of a subclass of tourist visas similar to the approach taken in New Zealand. These options, along with the ALRC’s views, are explored below.

Access to the family violence provisions

20.91 One possible option for reform is to amend the requirements for a combined Partner (Subclass 820/801) visa to allow access to the family violence exception in circumstances where the current, or former holder of a prospective marriage visa, has not married his or her Australian spouse. In effect, this would allow for the grant of a permanent visa to victims of family violence who are subclass 300 visa holders, and who have not married their Australian sponsor.

20.92 On one hand, the ALRC recognises that there are legitimate policy reasons underlying the outcome that, if the visa applicant does not marry his or her sponsor—as is the purpose of the Prospective Marriage (Subclass 300) visa—that person should return to the country of origin. As stakeholders argued in consultations, opening the family violence exception to those on prospective marriage visas risks ‘incentivising’ family violence claims as a means to obtain a quick permanent migration outcome.

20.93 In addition, the ALRC notes that Australia’s family migration stream is capped. Given the considerable demand for partner migration, issues of fairness may arise where amendments allow those who have not married their Australian sponsor to access the family violence exception—and be granted a permanent visa—at the expense of others who have married and have already spent considerable time in Australia.

20.94 On the other hand, the ALRC considers that there are a number of exceptional reasons as to why prospective marriage visa holders should be able to access the family violence exception.

20.95 First, the ALRC is concerned that prospective marriage visa holders are more vulnerable than those on other partner visa classes. The ALRC considers that—given the limited amount of time in Australia (9 months)—vulnerability factors including isolation, lack social support, language barriers, and lack of knowledge of the legal system are exacerbated for victims of family violence in this position. The ALRC is particularly concerned about extreme cases that may involve sex-trafficking and extreme sexual and psychological abuse.

20.96 Secondly, while the prospective marriage visa is a provisional visa, there is a clear pathway to permanent residence, via the three-stage process outlined previously. The grant of the prospective marriage visa presupposes that there is already a relationship between the applicant and the sponsor. In the normal course of events, a person who enters Australia on a prospective marriage visa has the genuine intention of marrying their sponsor, and subsequently applying for permanent residence by way of a combined 820/801 visa application. However, as stakeholders have emphasised, there is a real risk that threats to ‘withdraw from the marriage’, and thus removal from Australia can be used to perpetuate family violence dynamics. Consistent with the ALRC’s position in relation to secondary visa holders, the ALRC considers that prospective marriage visa holders should not have to remain in a violent relationship in order to secure a migration outcome.

20.97 Weighing up these factors, the ALRC considers that the family violence exception should be extended to victims of family violence who are holders or former holders of a prospective marriage visa when applying for a combined Partner (820/801) visa. In doing so, the ALRC acknowledges the potential that this may further expose the system to fraudulent, manipulated, or exaggerated claims. While any such issues do not outweigh the considerations in favour of extending the family violence exception, in order to minimise such risks, the ALRC is interested in stakeholder views about what measures, if any, can be taken to ensure the integrity of the visa system if prospective marriage visa holders are able to access the family violence exception.

Introduction of a new temporary visa

20.98 The ALRC acknowledges concerns raised by stakeholders that prospective marriage visa holders who have entered Australia, but who have not married their Australian sponsor, find it difficult to return home for a range of cultural, social and economic reasons. In particular, the ALRC is concerned that those returning to their home countries after a ‘failed marriage’ may be ostracised, or, in the worst case scenario, persecuted by family members and communities. Evidently, there are implications for the safety of victims of family violence in returning home in these circumstances.

20.99 Another option that may improve the safety of victims would be to create a new temporary visa that would allow a former prospective marriage visa holder who is the victim of family violence, to remain in Australia for a period of time to: apply for a visa in their own right; or to make arrangements to return home. To address concerns noted above, in relation to temporary visa holders and their inability to access family violence and migration support services, health services and accommodation, the ALRC envisages that such a visa could be exempted from the residence requirements under the Social Security Act, to allow holders to access Special Benefit payments. Access to such benefits could improve the safety of victims of family violence by allowing them financial independence to deal with the issues arising from the family violence, to access services, or seek legal advice in applying for a new visa. The ALRC makes a proposal in relation to this in Chapter 7.

20.100 There is a historical precedent for such a visa. For example, the ‘Return Pending Visa’—which was introduced in 1999 and ceased in 2004—allowed temporary protection visa holders, whose application for a further protection visa had been finally refused, to stay in Australia for 18 months in order to make arrangements for departure. The Return Pending Visa was exempt from the residency requirements under the Social Security Act, and allowed holders to access Special Benefit.^[83] The ALRC envisages that the arrangements under this visa may provide a useful model for the development of any new visa.

20.101 In addition, a temporary visa such as the one proposed is consistent with the underlying themes in the Inquiry expressed in Chapter 2—to preserve the autonomy of individuals, by allowing them the ability to make a decision about whether to apply for another visa, or to return home.

The New Zealand visitor visa model

20.102 Alternatively, another suggestion made by stakeholders was the possible abolition of the Prospective Marriage (Subclass 300) visa altogether, instead allowing prospective marriage applicants to enter on a special category visitor visa. Such an approach has been adopted in New Zealand, where there is no visa equivalent to a prospective marriage visa.^[84] Instead, applicants can apply for a special category of visitor visa, based on a ‘genuine and stable’ partnership with a New Zealand resident or citizen.

20.103 The duration of the visa granted is dependent on the duration of the partnership relied upon.^[85] For example, if the partnership has existed for less than 12 months at the time assessed, then the initial visitor visa cannot exceed 12 months. If the relationship has existed beyond 12 months, a visitor visa can be granted for a maximum of two years. Once onshore, an application for permanent residence can be made under the Family Visa category. As discussed in Chapter 21, an applicant for permanent residence class visas who is a victim of family violence in New Zealand may be granted a permanent visa under a special category visa (similar to Australia’s family violence exception).

20.104 Applicants for this category of visitor visa must be sponsored by their New Zealand partner, and the New Zealand partner must pass the requirement for partners supporting ‘partnership-based’ temporary applications. The character requirement will not be met if the New Zealand citizen has, in the seven years prior to the date of the application, been convicted of: any offence involving domestic violence; and any offence of a sexual nature, unless granted a character waiver.^[86] A character assessment is usually determined by way of a New Zealand police certificate. In considering whether to grant a character waiver, officers will take into account, among other things: the seriousness of the offence; whether there was more than one offence; and how long ago the offence occurred.^[87] Officers must comply with the requirements of procedural fairness and natural justice in making decisions to waiver the character requirement.^[88]

20.105 The ALRC considers that abolishing the prospective marriage visa subclass in Australia, in favour of a special category of sponsored visitor visas, similar to New Zealand, would have a number of potential benefits.

20.106 First, it would remove the requirement that a person must have married their sponsor at the time of applying for permanent residence in order to access the family violence exception. Persons who enter on the proposed visitor visa and then apply for a Partner Visa onshore—based on either a marriage or a de facto relationship—would have access to the family violence provisions.

20.107 Secondly, and importantly, the combination of a requirement for a ‘genuine relationship’, and character requirements for sponsorship, would provide a measure of safety for victims of family violence when compared with the current prospective marriage visa scheme, as no such checks on sponsorship currently takes place.

20.108 The ALRC considers that, in theory, under the current legislative framework, there appears to be no reason why, for example, a person could not enter Australia on a tourist visa and then marry or form a de-facto relationship with an Australian on which an application for a Partner Visa could be based. However, the ALRC acknowledges concerns expressed about the limited protection for victims of family violence offered by the current framework. For example, the ADFVC submitted that:

Women on tourist visas have been known to arrive in Australia at the invitation of an Australian citizen/permanent resident as a mechanism to bypass the sponsorship requirements. This is a particularly vulnerable group as these women are engaging in relationships with Australian citizens and permanent resident yet they do not have protection under the family violence exception.^[89]

20.109 The ALRC is interested in stakeholder views about the merits of repealing the Prospective Marriage (Subclass 300) visa, in favour of a sponsored visitor visa similar to that in New Zealand.