Evidentiary requirements in the Australian context

21.5 Compared with overseas jurisdictions, the evidentiary requirements for making a claim under the family violence exception in Australia are complex and strict. The complexity of the system is a manifestation of the policy tensions in this area: on the one hand, the need to ensure accessibility of the family violence exception to genuine victims, counterbalanced with the integrity of the visa system, and the need to prevent fraudulent claims or abuse of the family violence exception for migration outcomes. An understanding of these tensions is best understood by examining the legislative history of the family violence exception.

Legislative history

21.6 The family violence exception was introduced in 1991 to redress ‘community concerns that some migrants might remain in an abusive relationship because they believe they may be forced to leave Australia if they end the relationship’.^[1] In its initial form, the Migration Regulations restricted the forms of acceptable evidence to support a family violence claim to judicially-determined evidence.^[2] However, in response to concerns that the immigrant women faced barriers to accessing the judicial system—and the ALRC’s recommendations in the 1994 report, Equality Before the Law: Justice for Women (ALRC Report No 69)^[3] (Equality Before the Law)—legislative changes were introduced in 1995 to broaden the range of evidence that could be adduced to prove that family violence had occurred.

21.7 These changes introduced non-judicially determined forms of evidence, including statutory declarations from the applicant and certain ‘competent persons’.^[4] The result was the creation of a two-track system—judicially and non-judicially determined claims—through which victims of family violence could access the family violence exception. Importantly, the ultimate decision as to whether a person met the family violence exception remained with the visa decision maker.

21.8 While the 1995 amendments increased accessibility of the exception to victims of family violence, it caused to some unintended consequences. In particular, there was uncertainty as to the level of evidence required in a competent person’s statutory declarations to satisfy a visa decision maker that family violence had occurred, and also whether the visa decision maker could question the veracity of a competent person’s opinion.

21.9 Ultimately, the courts resolved these questions by finding that the Migration Regulations left no discretion for the visa decision maker to question the veracity of a competent person’s opinion—even if they considered that the claim may be vexatious—so long as the statutory evidence was presented in accordance with the Migration Regulations. As Wilcox J commented in Ibrahim v Minister for Immigration and Multicultural Affairs:

The statutory declarations of the competent person must state the competent person’s opinion that relevant domestic violence has been suffered by the visa applicant (reg 1.26(c) and (d)) and must name the person who, in the competent person’s opinion, is the perpetrator of the violence (reg 1.26(e)). However, once that is done, it seems immaterial if these opinions are based entirely on statements made to the competent person by the visa applicant or they lack any apparent credibility.^[5]

…

The Minister or the Tribunal is not entitled to act on his or its own opinion as to whether the visa applicant has suffered domestic violence, it obviously has no right to reject the competent person’s opinion on the basis that it is inherently implausible.^[6]

21.10 Consequently, concerns arose that the introduction of non-judicially determined evidence had opened the door for a successful claim of family violence without rigorous scrutiny of the evidence. At that time, the then Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) voiced concerns in relation to statutory declaration evidence. In particular :

• such evidence was often provided after a court had refused to make an order;

• applicants could shop around for evidence (i.e. a sympathetic competent person who would provide a statutory declaration);

• just over 54% of statutory declarations by competent persons were made after only one interview with the applicant; and

• the sponsors did not have the right to contest the allegations.^[7]

Unsuccessful amendments in 2000

21.11 As a result of these concerns, outlined above, in 2000 the Australian Government sought to amend the legislation to make the evidentiary requirements more rigorous.^[8] It was proposed that where an applicant makes a non-judicially determined claim of family violence, DIMIA must refer the matter to Centrelink for assessment by a social worker. That person must be employed by Centrelink as a social worker, and must be, or eligible to be, a member of the Australian Association of Social Workers. If the matter was appealed to the MRT, the Tribunal would have the discretion to ask Centrelink for a report.^[9] The referral to an independent expert was intended to

increase the integrity of the special provisions relating to domestic violence by allowing an independent, qualified service provider to assess domestic violence claims. The independent assessment will replace the system of assessment by the courts or ‘competent persons’, which have been identified as not always involving a full investigation of the applicant’s claims of domestic violence. This amendment will enable skilled service providers to provide Immigration with uniform assessment of cases.^[10]

21.12 The resolution to pass these amendments was disallowed by the Senate on 1 November 2000.^[11]

The current evidentiary regime

21.13 In 2005, the Migration Regulations were amended to provide a new system of non-judicially determined evidence.^[12] This became the basis for the current system, which provide that:

• if the visa decision maker is satisfied on the non-judicially determined evidence that the applicant has suffered ‘relevant family violence’, the visa decision maker must proceed with the visa application on the basis that the applicant has suffered ‘relevant family violence’;^[13] or

• if the visa decision maker is not satisfied that the applicant has suffered family violence on the basis of non-judicially determined evidence, the matter must be referred to an independent expert for assessment;^[14] and

• the visa decision maker must take as correct the opinion of an independent expert.^[15]

21.14 These amendments reflected the policy position that where evidence of family violence has not been test by a court, such evidence is ‘to be assessed by the Minister, and in certain circumstances, an independent expert’.^[16] An ‘independent expert’ is defined in reg 1.21 as a person who is ‘suitably qualified and is employed by, or contracted to provide services to, an organisation specified in a Gazette Notice for this definition’.^[17] The only organisation gazetted is Centrelink.^[18]

21.15 It is worth noting that there is an important difference between the current system, and the amendments proposed in 2000. Under the amendments proposed in 2000, all victims of domestic violence who did not have judicially determined evidence would have been referred to Centrelink to obtain a report, whereas the current arrangements only allow referral to an independent expert if the visa decision maker is not satisfied on the non-judicially determined evidence provided, that family violence has occurred. This was an important and substantial policy change.

21.16 In the next two sections, the ALRC will examine in detail the requirements for judicially and non-judicially determined claims of family violence.

Judicially determined claims of family violence

21.17 Evidence in support of a judicially determined claim of family violence may take the form of:

• an injunction under s 114(1)(a), (b) or (c) of the Family Law Act 1975 (Cth), granted on the application of the alleged victim against the alleged perpetrator;^[19] or

• a conviction against the alleged perpetrator, or finding of guilt against the alleged perpetrator, in respect of an offence against the victim;^[20] or

• an order under state or territory law against the alleged perpetrator for the protection of the alleged victim from violence, made after the court has given the alleged perpetrator an opportunity to be heard, or otherwise make submissions.^[21]

21.18 With respect to protection orders the Migration Regulations do not require that an order be a final order, meaning that interim orders may meet the requirements. However, under guidelines issued by the Department of Immigration and Citizenship (DIAC), interim orders that are made ex parte may not comply with the Migration Regulations, if the alleged perpetrator was not given the opportunity to be heard or make submissions.^[22]

21.19 In its submission to Family Violence—A National Legal Response (ALRC Report No 114, 2010) (Family Violence—A National Legal Response), the Immigrant Women’s Support Services (IWWS) expressed concerns about amendments made to the Migration Regulations in November 2009 that require, in relation to judicially determined claims, that ‘the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator’.^[23] The intended purpose of this amendment was to ‘reinforce that the purpose of the family violence provisions is to ensure that visa applicants are not required to remain in a relationship where family violence is occurring’.^[24]

21.20 In particular, the IWWS was concerned that, since the introduction of this amendment, DIAC officers were not readily accepting a final family violence protection order obtained after separation.^[25] Previously, a final domestic violence protection order was sufficient judicial evidence of family violence in instances where it was applied for, and obtained, after separation.^[26]

Submissions and consultations

21.21 In the Issues Paper, Family Violence and Commonwealth Laws—Immigration Law (the Migration Issues Paper), the ALRC asked what issues arise with respect to the use of judicially-determined claims of family violence in migration matters.^[27] The ALRC also asked whether the Migration Regulations should be amended to make it clear that family violence protection orders granted after the parties have separated amount to sufficient evidence that ‘relevant family violence’ has occurred.^[28]

21.22 Stakeholders indicated that, generally, applicants encountered few problems once a valid judicially-determined claim of family violence had been made. Visa Lawyers Australia considered that ‘this is not surprising as such evidence has been tested in a court of law, and it makes no sense for an assessing officer at DIAC to question the veracity of such evidence’.^[29]

21.23 However, stakeholders emphasised that migrant victims of family violence faced many barriers in accessing the judicial system, including that:

• victims have little or no access to support networks, speak little English, and are not able to access funds to assist themselves;^[30]

• judicially-determined claims require victims to have substantial knowledge of, and confidence in, a legal system that is foreign to them;^[31]

• victims are reluctant to approach the police and police are sometimes reluctant to take action (possibly due to a lack of resources) if no child was involved and when the physical nature of the violence is disputed and not witnessed by a third party;^[32] and

• testifying in court about violence in a relationship is confronting, traumatic and potentially places victims at an increased risk of further violent attacks from their partners.^[33]

State and territory family violence protection orders

21.24 Most stakeholders were of the view that the Migration Regulations should be amended to clarify that a family violence protection order granted after separation should be regarded as sufficient evidence that family violence has occurred.^[34] In doing so, stakeholders argued that the Migration Regulations do not make a reference as to the timing of the grant of a protection order, and therefore, the problems ‘do not stem from the regulations but rather from the way in which a decision maker misapplies the law’.^[35] Visa Lawyers Australia, for example, argued that:

While there is clearly a reference in the Migration Regulations to the timing of the actual violence, there is no reference to the timing of the judicial procedure relating to the claim. We regard any interpretation of these provisions to mean that injunctions, court orders and convictions obtained after the relationship has ceased but referring to the violence during the relationship as legally incorrect.

Given the plain meaning of the Migration Regulations in this regard, in our view it is DIAC policy (Procedures Advice Manual) that should be amended to explicitly state the regulations only provide for consideration of the timing of the family violence that was the subject of a judicially-determined claim, and not the date of the judicial procedure itself.^[36]

21.25 Immigrant and family violence service groups expressed concerns that, in practice, final rather than interim orders were required to support a judicially- determined claim of family violence.^[37] Domestic Violence Victoria and others in a joint submission, noted in relation to ex parte intervention orders:

We understand that despite Interim Intervention Orders being able to be used as evidence in judicial claims; they are routinely dismissed. It is common for interim intervention orders to be granted ex parte; the ineligibility of these types of Orders to be considered leaves groups of women without access to the family violence exception while they await hearing for a final order.^[38]

21.26 The Immigration Advice and Rights Centre (IARC) echoed that, where there is a significant time gap between the grant of interim and final orders, the inability to consider interim orders as judicially-determined evidence would prejudice victims of family violence, because:

A final AVO (as opposed to the various interim AVOs) may be dismissed because the time between the last incident and the final court hearing was prolonged: the Court finally dismisses the application on the basis that the fear of personal safety no longer existed to warrant a grant of a final order (even though family violence may well have appeared in the past).^[39]

21.27 National Legal Aid and the Law Institute of Victoria also expressed concern that such a time lapse may affect a person’s immigration status, and suggested that, where an application for a family violence order has been made, the immigration process should be suspended until finalisation of the court process, unless the delegate is satisfied that family violence has been established by way of non-judicially determined evidence.^[40]

Post-separation violence

21.28 As a separate issue, many submissions queried whether the requirement that ‘the violence, or part of the violence must have occurred while the married or de facto relationship was in existence’ should be retained at all. Stakeholders were concerned that the requirement fails to consider that violence often escalates or even starts after a couple have separated. The ANU College of Law submitted that:

In some cases an applicant may flee a partner and end the relationship because of their perception of an escalating risk of violence should they remain. The current legislation which requires that the violence subject of the judicial determination must have occurred while the couple were still in the partner relationship could be seen to force an applicant to remain in a relationship until they have become a victim of family violence rather than to leave to protect themselves. We submit that those qualifying subparagraphs go against the spirit of the family violence provisions, are ill-conceived and dangerous and should be deleted.^[41]

21.29 Similarly, the Refugee and Advice and Immigration Legal Service (RAILS) was concerned that the very act of leaving a relationship may escalate the violent or abusive behaviour, forcing the victim to seek an order, and that in such cases:

a strict application of the legislation by the decision maker may lead to a visa refusal as it is seen to be violence which has not occurred while the marriage/de facto relationship existed.^[42]

21.30 RAILS therefore supported an amendment that provides for the grant of the visa on the basis of a family violence protection order granted (and other evidence including non-judicial evidence) after the parties had separated.^[43] The Law Institute of Victoria expressed a view that the distinction made in reg 1.23 of the Migration Regulations takes an artificially neat approach to the break-down of the relationship by assuming that the victim leaves a sponsor following an incidence of family violence, hence:

The law requires amendment to reflect the reality that separation might occur over time, with victims of family violence leaving and returning multiple times and that family violence may take many different forms so that one physically violent incident occurring after separation might have been preceded by a longer period of economic and psychological abuse prior to separation.^[44]

21.31 In contrast, Visa Lawyers Australia argued that when family violence occurs post-separation, it should be dealt with on a case by case basis, taking into account the integrity of the visa system, and the consequences of leading to permanent residency:

If the relationship ends and at some point afterwards violence occurs, it is difficult to say whether this should suddenly entitle the migrant to a permanent visa. We consider that there are likely to be cases where these circumstances would warrant granting a visa under family violence provisions. Especially having regard to how long the couple were separated before the violence occurred, the nature of the violence, and the person’s ongoing ties with Australia now that the relationship has broken down.

For this reason, we submit there should be some flexibility for DIAC case officers to deal with such a situation. This could take the form of an exception that occurred after the breakdown of the relationship, but only in exceptional circumstances.

Alternatively, it may be more appropriate that an application to the Minister be made in such circumstances rather than trying to carve out a specific exception. We regard either of these approaches as allowing flexibility and consideration of individual facts and circumstances as required.^[45]

ALRC’s views

Family violence protection orders

21.32 The ALRC notes that there is no temporal limitation in the Migration Regulations so as to exclude family violence protection orders obtained post-separation, where that order relates to evidence that violence occurred while the relationship was still in existence. If, as stakeholders have argued, there are problems with the application of the legislation by decision makers, the ALRC considers the most appropriate remedy is to amend the Procedures Advice Manual (PAM 3) guidelines for decision makers. For example, the guidelines could be amended to make clear that the date of the protection order is not determinative of whether or not family violence occurred while the relationship was in existence.

21.33 In relation to ex parte orders, the ALRC considers that such orders—often made in urgent situations and where the alleged perpetrator has not been given an opportunity to respond—should not be considered as judicially-determined evidence. The ALRC considers that procedural fairness to the alleged perpetrator is vital to the integrity of judicially-determined evidence, since a visa decision cannot go behind evidence that has been determined by a court, and must proceed on the basis that family violence has occurred.

21.34 The ALRC is interested in stakeholder views about whether the migration assessment process should be put on hold where an application for a family violence order has been made, unless the applicant proceeds with a non-judicially determined claim of family violence. Under Departmental Guidelines, judicially-determined claims take precedence whenever submitted, so that ‘the judicially- determined claim must be accepted as evidence that the alleged victim has suffered family violence, despite any reservations the officer may have had concerning the non-judicially determined claim’.^[46]

21.35 If the time lapse between the interim and final orders is sufficiently long, there is a risk that a decision may be made in relation to the non-judicially determined claim, thus potentially excluding a genuine victim from accessing the family violence provision if the judicially-determined claim, later determined, is favourable to the applicant.

21.36 On the other hand, the ALRC considers that putting a hold on the migration process may prolong the time it takes for a victim to be granted permanent residence under the family violence exception, and this may be detrimental to their safety. It also extends the period of time a person is required to access family violence services, health services, or adequate housing to ensure his or her safety.

Post-separation violence

21.37 The ALRC considers that to require that the violence must have occurred while the relationship was still in existence is somewhat at odds with the policy expressed in PAM 3, that there is no requirement that the relationship has broken down because of the violence.^[47] The Migration Regulations are similarly silent as to any requirement of causation. The ALRC considers this significant, as the requirement that the violence occurred while the relationship was in existence seems to suggest that the relationship breakdown must be attributable to the violence. Yet, this is not reflected in the Migration Regulations.

21.38 The ALRC acknowledges that the requirement may deter those who are in a relationship where there is an escalating, and perhaps imminent risk of violence, to remain in the relationship until violence has taken place, rather than seeking assistance, with obvious ramifications for his or her safety. Alternatively, there is a risk that, where the violence has occurred as a result of the separation, a person may feel compelled to return to the violent relationship, in order to be able to access the family violence exception. In both cases staying in, or returning to, the relationship puts the safety of the visa holder at risk.

21.39 In this respect, the ALRC considers the argument made by the Full Federal Court in Muliyana v Minister for Immigration and Citizenship to be highly persuasive:

The policy is intended to cover both situations: not to force a person to stay in an abusive relationship; and not to force a person to go back into an abusive relationship, in either case without compromising his or her immigration status. If that is the correct identification of the policy, then it matters not whether the domestic violence occurred before or after the cessation of the spousal relationship; just that domestic violence occurred and the spousal relationship has ceased.^[48]

21.40 Although the Court’s comments were in reference to the legislation prior to the 2009 amendments, the ALRC considers that the policy articulated by the Court properly recognises the nature and dynamics of family violence. The safety of victims of family violence would be improved by repealing the requirement that the violence must have occurred while the relationship was still in existence.

21.41 There is substantial evidence to suggest that there is a heightened risk of violence post-separation. For example, in the Family Violence—A National Legal Response, the Commissions highlighted research which suggested that the separation of intimate couples is often a trigger for violence, where there is no prior history of violence in the relationship, or in any other setting.^[49]

21.42 On the other hand, if the relationship has ended and there is violence afterwards, a legitimate question arises as to whether the migration system—via the family violence exception—should be responsible for ensuring the safety of the person, or whether that responsibility is better addressed in other contexts. Nevertheless, the ALRC considers that Australia has moral and legal obligations to ensure the safety of persons in its jurisdiction, whether or not such persons are here temporarily or permanently.

21.43 In the event that the requirement is not repealed, the ALRC is interested in stakeholder views as to what other measures might be instituted to ensure the safety of those who suffer violence post-separation. For example, would there be merit in allowing such persons to apply for ministerial intervention under s 351 of the Migration Act, or amending the Migration Regulations to provide for victims to access the family violence exception, in exceptional circumstances, where the violence occurred after the cessation of the relationship?

21.44 The ALRC notes that the approaches taken in overseas jurisdictions may provide some guidance. In Canada, a person may apply for and be granted permanent residence, on ‘humanitarian and compassionate’ grounds—including as a victim of family violence—being that ‘unusual, undeserved or disproportionate hardship would be caused to the person if he or she had to leave Canada’.^[50] The Canadian system provides for a number of considerations that may warrant the grant of a permanent visa in such circumstances, and the ALRC envisages that similar factors could be considered where a person experiences family violence post-separation. These factors could include:

• the degree of establishment in and ties to Australia;

• the best interest of any child involved;

• whether the person is of good moral character; and

• whether return to the country of origin would result in undue hardship to the applicant.

Non-judicially determined claims of family violence

21.45 The ALRC recommended in Equality Before the Law, that the family violence exception should extend to cases where evidence is obtained from community and welfare workers, medical and legal practitioners, and other suitable third parties.^[51]

21.46 Following the ALRC’s recommendation, the Migration Regulations were amended to allow for non-judicially determined evidence of family violence to include:

• a joint undertaking made by the alleged victim and alleged perpetrator in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim;^[52]

• a police record of assault along with two statutory declarations—one from the alleged victim, plus a statutory declaration made by a competent person;^[53] or

• three statutory declarations—a statutory declaration from the alleged victim, plus two statutory declarations by two differently qualified ‘competent persons’.^[54]

The ‘competent person’

21.47 Reg 1.21 of the Migration Regulations lists categories of competent persons who may be relied upon to give a statutory declaration for the purpose of a non-judicially determined claim. They include a person who is:

• registered as a medical practitioner under a law of a state or territory providing for the registration of medical practitioners; or

• registered as a psychologist under a law of a state or territory providing for the registration of psychologists; or

• registered as a nurse within the meaning of s 3 of the Health Insurance Act 1973 (Cth) and is performing the duties of a registered nurse; or

• a member, or person eligible to be a member, of the Australian Association of Social Workers who is performing the duties of a social worker; or

• a family consultant under the Family Law Act;

• a manager or coordinator of a women’s refuge;

• a manager or coordinator of a crisis or counselling service that specialises in family violence; or

• in a position that involves decision-making responsibility for a women’s refuge or a crisis and counselling service that specialises in family violence, that has a collective decision making structure, and whose position involves decision-making responsibility for matters concerning family violence of that refuge or crisis and counselling service.^[55]

21.48 Where the alleged victim is a child—in addition to the above—a competent person can also be an officer of the child welfare or child protection authorities of a state or territory.^[56]

The statutory declaration requirements

21.49 Statutory declarations by competent persons must: set out the basis of the person’s claim to be a competent person; state that in their opinion the applicant has suffered ‘relevant family violence’; name the person who committed the family violence; and set out the evidence on which the person’s opinion is based.^[57] The statutory declaration of a competent person can be provided on a standard form—called Form 1040—which can be accessed from DIAC’s website.^[58]

21.50 The courts have required strict compliance with the above requirements before finding that a non-judicially determined claim of family violence has been made, and the applicant is ‘taken to have suffered’ family violence.

21.51 For example, while the opinion of the competent person need not refer to the definition of ‘relevant family violence’, there must be a clearly expressed opinion which reflects an assessment of the state of mind of the alleged victim by reference to the definition of ‘relevant family violence’. It is not sufficient that a competent person expresses the opinion that the victim may have, or appears to have, suffered family violence.^[59]

21.52 For example, in Du v Minister for Immigration and Multicultural and Indigenous Affairs,^[60] the applicant submitted a statutory declaration from a doctor that stated: ‘Thi Lan Du attended our surgery at Campsie on 21/2/97 with multiple bruises which were allegedly caused by domestic violence (assault by her husband)’, coupled with one from a registered psychologist that stated: ‘Du certainly expressed sentiments and a psychological condition that was consistent with an individual who has suffered from family violence and a marital breakdown’.^[61]

21.53 Matthews J accepted the above evidence, but found these declarations did not meet the ‘specific and peremptory terms’ of the Migration Regulations:

It is not sufficient compliance, in my view, for a competent person simply to note the consistency between a person’s presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence defined in reg. 1.23 has been suffered by a person.

This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim. ^[62]

21.54 Strict interpretation of the statutory requirements has been adopted in subsequent cases, over more contextual approaches. In some instances, relatively small departures from the regulatory requirements have proved fatal to the claim that the applicant had suffered ‘relevant family violence’. For example, non-judicially determined claims have been rejected on the basis that the declaration:

• was made on a state—rather than a federal—statutory declaration form;^[63]

• was signed one day and witnessed on another;^[64]

• did not specify that the competent person was a coordinator of a women’s refuge.^[65]

21.55 In other instances, claims have failed where the declaration:

• did not adequately set out the basis for the person’s claim to be a competent person;^[66]

• did not state who had committed the family violence;^[67]

• simply recited the possession of an opinion, rather than clearly expressing an opinion;^[68]

• included the wrong mix of ‘competent persons’.^[69]

Submissions and consultations

21.56 In the Migration Issues Paper,the ALRC expressed concerns that the efforts by the judiciary to clarify and prevent abuse of non-judicially determined claims, by requiring strict compliance with the letter of the Migration Regulations, have produced unconscionable rigidities in the law, to the point where the regime has been described as a ‘triumph of form over substance’.^[70] This may have the effect of unduly denying victims of family violence access to the family violence exception, which may jeopardise their safety.

21.57 In light of this, the ALRC asked whether the provisions governing the statutory declaration evidence of competent persons in the Migration Regulations were too strict, and if so, what amendments were necessary.^[71] In relation to competent person statutory declarations, the ALRC also asked whether competent persons should have to express an opinion as to who committed the family violence.^[72] Finally, the ALRC sought views in relation to training and education provided to competent persons.^[73]

21.58 The section below canvasses stakeholder concerns about the operation of the competent person regime. Stakeholders also submitted a number of options for reform, and these are discussed later in the chapter.

21.59 The concerns in relation to the operation of the competent person regime were largely related to: the difficulties in accessing competent persons; the strictness of the evidentiary requirements; and the lack of training and education given to competent persons.

Accessing competent persons

21.60 Stakeholders highlighted that victims of family violence experienced difficulty in being able to access competent persons who are able to give a valid opinion of the kind required, in particular for those who: cannot speak English and are socially isolated; lack financial resources; or live in remote and regional areas.^[74] These concerns were underscored in the following case study provided by Visa Lawyers Australia:

21.61 RAILS suggested that one unintended consequence of the inability to access competent persons—and the strictness of the evidentiary requirements—was the risk that victims would seek out such professionals for the express purpose of obtaining a statutory declaration ‘rather than for assistance in dealing with family violence, thereby setting up an artificial situation in order to comply with the legislation’.^[76]

21.62 The IARC argued that delays in accessing competent persons—including where the delay stemmed from seeking the assistance of other professionals who are not competent persons—reduces the quality of the evidence a victim can obtain to support their claim:

According to IARC’s experience, some victims who had left the family violence matter unattended for a considerable period of time (whether due to their apprehension of the outcome or lack of knowledge or other reasons) would find it difficult to get the quality evidence required, perhaps due to lapse of time (by then, the physical and psychological injuries would not be easily discernable to facilitate the competent person’s assessment). The relevant statutory declaration can be obtained in the end but the less resourceful victim can find this task difficult.^[77]

21.63 In addition, stakeholders expressed concern that access to competent persons often has financial implications for victims, who may be suffering from financial hardship.^[78] For example, the Australian Domestic and Family Violence Clearinghouse (ADFVC) reported cases of

victims claiming that some competent persons, especially doctors, have requested payment for filling out statutory declaration forms as competent persons, because ‘it takes up too much time and detracts from time of other patients’.^[79]

21.64 Submissions also suggested that it was not uncommon for victims to have to go back to competent persons numerous times to have forms amended in order to meet the strict statutory requirements.^[80]

Strictness of the evidentiary requirements

21.65 Stakeholders stressed that even when competent persons can be found, victims of family violence face additional barriers arising from the strict evidentiary requirements in relation to the statutory declaration evidence. The majority of submissions were of the view that the statutory declaration regime was strict and inflexible, and precluded some genuine victims of family violence from accessing the family violence exception.^[81] This general concern was reflected in the submission from Visa Lawyers Australia:

The current legislative scheme places too much emphasis on the applicant to provide evidence in a certain form and too little emphasis on DIAC officers considering the evidence. The scheme seems to have created a checklist style assessment of the evidence, which allows for very little discretion and therefore limits the amount of in-depth consideration DIAC officers are required to perform. We believe the current system provides little room for flexibility, which ultimately limits the effectiveness of the scheme.^[82]

21.66 Similarly, the IARC submitted that:

The provisions governing the statutory declaration evidence of competent persons are too complicated and interpreted too strictly. The current regime does not necessarily cure the mischief it seeks to remedy.

Only claimants who have sufficient resources can seek competent legal representation to work with ‘competent persons’ to make their statutory declaration compliant (if the ‘competent person’ is willing, and has time to amend their original declaration). Those who do not have financial resources are disadvantaged, unless they are assisted by non-profit migration agents.^[83]

21.67 National Legal Aid emphasised that an expert ‘is no less an expert for not having used Form 1040 or for having provided an uncertified copy of their qualifications’.^[84]

21.68 The Law Institute of Victoria was concerned that such strict requirements potentially prevent an applicant from having his or her case considered by the visa decision maker and, potentially, being referred to an independent expert:

We are concerned that the Minister is required to seek the opinion of an independent expert only where the victim’s evidence has been presented in accordance with Regulation 1.24. Therefore the independent expert provisions provide no safeguard for applicants who fail to meet the strict requirements under Regulation 1.23 (as interpreted by the courts), as no referral will be made.^[85]

An opinion as to who committed the violence

21.69 One manifestation of where the strictness of the evidentiary requirements may be particularly burdensome is in relation to the requirement for competent persons to express an opinion about who had committed the family violence. As noted above, the courts have interpreted such requirements strictly.

21.70 A number of stakeholders were of the view that it is not appropriate for the competent person to express an opinion as to who committed the violence, citing that such evidence would, at best, be hearsay.^[86] The IARC argued that:

it is inappropriate to require the competent person to name the perpetrator in the statutory declaration as required under reg. 1.26(e) unless the competent person was also a direct witness of the family violence.^[87]

21.71 Others expressed concern that the requirement may deter competent persons from giving evidence, for fear of being subjected to litigation, or retribution from the alleged perpetrator.^[88] Domestic Violence Victoria and others in a joint submission suggested that:

The competent persons should also have assurance that their details will not be released to the perpetrator under any circumstance. In practice lawyers working in this area have encountered situations where the competent persons approached by a victim refused to provide a statutory declaration for fear of retribution from the accused.^[89]

21.72 In contrast, Visa Lawyers Australia submitted that it is not inappropriate for competent persons to give evidence about who committed the family violence, and that it serves a useful purpose:

While the competent witness is essentially providing hearsay evidence, recounting who the applicant identified as their attacker, it provides the decision-maker with corroborative evidence and goes to the applicant’s credibility. The prejudice to the sponsor of accepting hearsay evidence does not arise in this context as there are no direct or immediate repercussions for the perpetrator if a finding is made that family violence has occurred.^[90]

21.73 The ADFVC also submitted that in some instances it may be appropriate for a competent person to give an opinion about who committed the relevant family violence ‘for example, if the competent person is the manager of a women’s refuge and a representative of the refuge has accompanied the woman to court proceedings against the perpetrator’.^[91]

Training and education

21.74 A number of submissions were concerned that competent persons lacked training in relation to the nature and dynamics of family violence. The ALRC addresses, and makes proposals in relation to education, training and information dissemination in Chapter 20.

The referral to an independent expert

21.75 As noted above, if the visa decision maker is not satisfied that the alleged victim has suffered ‘relevant family violence’ on the basis of non-judicially determined evidence, the matter must be referred to a Centrelink independent expert for assessment.

21.76 The Migration Regulations provide no guidance on what is required for referral to an ‘independent expert’. Neither the DIAC visa decision makers, nor the MRT on review, have statutory obligations to provide reasons for referring a matter to an ‘independent expert’.^[92]

21.77 There has been some judicial consideration of what appropriate qualifications a person needs to be ‘suitably qualified’ to provide an expert opinion in relation to family violence. In Sok v Minister for Immigration and Citizenship, Riley FM suggested that a suitably qualified person for the purposes of reg 1.21 could be a person who fell within the meaning of ‘competent person’.^[93] On the other hand, in Ali v Minister for Immigration and Citizenship, Nicholls FM commented that reg 1.21 contemplates a difference in qualifications required by an ‘independent expert’ and a ‘competent person’, and what is necessary is that the independent person providing the opinion meets the definition of an independent expert.^[94]

21.78 The Migration Regulations are also silent on whether an independent expert should furnish reasons for his or her opinions to the applicant. In cases before the MRT, the Tribunal has an obligation to disclose to the applicant an independent expert opinion if the Tribunal is to rely on that opinion in a manner adverse to the applicant.^[95]

Submissions and consultations

21.79 In the Migration Issues Paper, the ALRC sought comments on what issues arise in the use of independent experts in non-judicially determined claims of family violence.^[96] The ALRC asked whether the legislation should require decision makers to give reasons for referring the matter to an independent expert, and whether the independent expert should provide full reasons for their decisions to the applicant.^[97]

21.80 The ALRC also asked whether the requirement that the opinion of the independent expert is to be taken to be correct should be reconsidered, and whether there should be a method for review of such opinions.^[98]

Referral to an independent expert

21.81 Many stakeholders considered that visa decision makers should have to give reasons for referral to an independent expert.^[99] This view was based on a general consensus that ‘elements of the referral, assessment and reporting procedures of the independent expert system lack transparency and do not comply with the basic rules of procedural fairness’.^[100] Procedural fairness in this context concerns fairness to the person claiming the family violence exception, as distinct from procedural fairness in relation to the allegations of family violence by the perpetrator. For example, the ANU College of Law expressed concern that:

When DIAC officers choose to refer a case to an independent expert they provide information such as notes of interview with the former sponsors, letters written by the former sponsors to DIAC about the applicant’s claims, previous statutory declarations or court evidence. Independent experts may also contact and question the sponsor directly about the allegations. All this is potentially information adverse to the claims raised by the applicant and yet it is not routinely provided to the applicant with an opportunity for her/him to respond.^[101]

21.82 Similarly, Visa Lawyers Australia submitted that, since

the independent expert’s assessment is automatically taken to be correct, and the applicant is given no further opportunity to provide evidence to the DIAC decision-maker, applicants should be entitled to know the deficiencies in the evidence already provided before they are assessment by an independent expert.^[102]

21.83 Other stakeholders were concerned that applicants were being referred unnecessarily—or as a matter of routine—even in cases where the ‘the statutory declarations have been of sufficiently high quality’.^[103] It was argued that this places unnecessary stress on applicants to have to recall their experiences of family violence. The Australian Association of Social Workers (Qld Branch) was concerned that

many victims of domestic violence believe that they are not being believed by DIAC, which further exacerbates their feelings of low self-esteem and belief no one believes them or that they have been subjected to domestic and family violence.^[104]

21.84 The ANU College of Law expressed a view that the lack of transparency meant that the independent expert process

remains an area open to policy manipulation and anecdotal evidence supports trends in referral rates from DIAC officers on particular case demographics. For example it is standard practice for DIAC officers to refer cases where men are the victim of family violence to an independent expert, regardless of the evidence or competent persons documentation provided.^[105]

21.85 In contrast, the Migration and Refugee Review Tribunal argued that there was no need for giving reasons for referral, since referral is not the final decision, but rather a step in the process:

The referral to an independent expert is not the final decision, but rather a step in the process in determining whether the relevant visa should be granted. As the independent expert must conduct their own assessment of the claim, and the Tribunal must take as correct any subsequent opinion, the Tribunal does not consider the legislation should require the giving of reasons for referral.^[106]

The independent expert assessment

21.86 There were varying views expressed by stakeholders as to the independent expert assessment process. Domestic Violence Victoria and others in a joint submission expressed a view that:

Anecdotal evidence reports very high satisfaction with independent experts at Centrelink. They are well-trained, professional and respectful of their clients.^[107]

21.87 On the other hand, RAILS submitted that, in its experience:

The independent experts are not trained in obtaining evidence. In our experience the quality of the process and assessment by the independent expert varies greatly from person to person. There is very little consistency in their approach. Some have been sensitive in their manner and impartial in their processes, yet others have been leading in their questions and held obviously stereotyped and biased views of the motive of women from certain countries who marry Australian citizens/permanent residents.^[108]

21.88 The ADFVC was concerned that ‘there is no clear criteria that must be met by independent experts with respect to training, experience and supervision’.^[109] In this respect, the ANU College of Law queried whether:

the opinion of one, later ‘expert’ should be preferred over that of at least two other ‘experts’ (‘competent persons’)—especially given that the competent persons usually assess the victim’s claims much closer to the time the alleged violence took place.^[110]

21.89 Similarly, the IARC argued that given the strict requirements of the competent person’s qualifications, ‘it would seem logical to assume that the competent persons’ opinion would prevail’, given that independent experts’

investigations and comments on the state of mind (fear of safety and well being) of the victim are conducted many months, if not years, after the event and at a time much later than the competent person’s investigation/opinion. This time delay and questions about whether Centrelink social workers adequately trained in family violence assessments, raises doubts about the validity of their assessments.^[111]

21.90 Other concerns in relation to independent expert assessments included instances where the independent expert:

• had not applied the correct definition of relevant family violence;^[112]

• conducted investigations on specific matters rather than confining their assessment to whether or not the victim had suffered family violence;^[113] and

• held views and attitudes that are contrary to the well-being and protection of victims of family violence.^[114]