22.1 This chapter considers the position of asylum seekers who seek protection in Australia on the basis of having experienced family violence. The first part of the chapter includes an analysis of refugee case law in Australia in relation to family violence. The ALRC concludes that family violence claims can fall under under the definition of a refugee contained in the United Nations Convention Relating to the Status of Refugees (the Refugee Convention), as incorporated into Australian law by the Migration Act 1958 (Cth).
22.2 However, the ALRC considers that this is a complex area of the law which is prone to inconsistent decision-making. Assessments of family violence claims require a visa decision maker to have an in-depth understanding of the intersection between family violence and refugee law, and the relevant country information. Accordingly, in order to improve consistency in decision-making, the ALRC proposes that the Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) to require visa decision makers to have regard to the Procedures Advice Manual 3 Gender Guidelines when making refugee status assessments.
22.3 The chapter also considers whether other amendments, such as those proposed in the Complementary Protection Bill 2011 (Cth) (the Bill) are necessary to protect victims of family violence whose claims may fall outside the Refugee Convention, but who may need international protection. The ALRC considers that the measures proposed by the Bill provide limited scope for protection of victims of family violence. For the Bill to provide meaningful protection to victims of family violence, substantial amendments would need to be made to the exclusions criteria, which would significantly alter the nature of complementary protection affecting all persons who may need complementary protection, beyond those who are victims of family violence. As a result, the ALRC makes no such proposals in relation to the Bill, as they would go beyond the ALRC’s Terms of Reference.
Convention Relating to the Status of Refugees, 189 UNTS 151 (entered into force on 22 April 1954) (Refugees Convention). The Convention was amended by the Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967).