Migration

Current definitions

3.73 The Migration Regulations 1994 (Cth) define the term ‘relevant family violence’ to mean a reference to conduct, whether actual or threatened, towards:

(a) the alleged victim; or

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

(c) a member of the family unit of the alleged perpetrator; or

(d) the property of the alleged victim; or

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

(f) the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.^[53]

3.74 This definition takes a similar approach to the definition of family violence in the Family Law Act 1975 (Cth), as at the time of writing this Discussion Paper,^[54] in giving focus to the effect of the conduct on the victim, rather than categorising types of conduct.^[55]

Judicial consideration of the term ‘violence’

3.75 The term ‘violence’ is not defined by the Migration Regulations, but it has been the subject of some judicial consideration. Early authorities on this issue took a broad view that violence was ‘not meant to exclude instances where the damage suffered by the applicant was not wholly physical’.^[56] However, in Cakmak v Minister for Immigration and Citizenship, the Full Federal Court commented that the term ‘violence’ was restricted to physical violence, and that things like belittling, lowering self esteem, ‘emotional violence’ or ‘psychological violence’ broadened the scope of the Migration Regulations beyond their words.^[57]

3.76 In Sok v Minister for Immigration and Citizenship the Full Federal Court, disapproved of these comments, holding that violence is not restricted to actual or threatened physical violence.^[58] The court considered that ‘domestic violence’ is a term of art in contemporary Australia and, in the modern day context, is generally understood to encompass emotional abuse or economic deprivation.^[59] A critical part of the courts’ reasoning was that reg 1.23(2)(b) of the Migration Regulations refers to violence that causes the victim to fear for his or her ‘personal well-being or safety’, and that personal well-being is generally considered to encompass psychological health.^[60]

ALRC consideration of the term ‘relevant family violence’

3.77 In Family Violence: Improving Legal Frameworks, ALRC CP 1 (2010) the Commissions foreshadowed these issues and asked how the definition of ‘relevant family violence’ in the Migration Regulations was working in practice.^[61] The Commissions flagged that the responses received would be used in this Inquiry.

3.78 Stakeholders in that inquiry suggested that the current definition of ‘relevant family violence’:

• is too narrow and should be broadened to reflect current understandings of family violence, including having the reasonableness test removed;^[62]

• should reflect the broader definition used in the Victorian family violence legislation, or align more generally with the definition in the Family Law Act and all state and territory definitions of family violence;^[63]

• is problematic in its inclusion of the term ‘relevant’, as this is out of step with other state, territory and federal definitions of family violence, and appears to suggest that relevance of violence is determined according to culture.^[64]

Using the common definition

3.79 In the Issues Paper, Family Violence and Commonwealth Laws—Immigration, (ALRC IP 37, 2011) (the Migration Issues Paper), the ALRC asked what issues arise in the use of the ‘relevant family violence exception’, and whether the Migration Regulations should be amended to insert a definition of family violence consistent with that recommended in Family Violence—A National Legal Response.^[65]

Submissions and consultations

3.80 A majority of stakeholders supported amending the Migration Regulations to include a definition of family violence consistent with that recommended in Family Violence—A National Legal Response.^[66] In doing so, several strong themes emerged from the submissions with respect the current definition of ‘relevant family violence’.

‘Relevant’ family violence

3.81 First, submissions highlighted as problematic the use of the term ‘relevant’ as confusing and unnecessary.^[67] For example, the Australian Association of Social Workers (Qld Branch) submitted that:

The concept of ‘relevant’ as it is included in the current legislation is questionable and the AASW strongly argues that all forms of violence need to be assessed and recognised as relevant to decision makers.^[68]

3.82 The Refugee and Immigration Legal Service submitted that ‘relevant’ can be interpreted to mean ‘cultural’ relevance, rather than taking into account all dimensions of domestic and family violence.^[69]

The reasonableness requirement

3.83 Stakeholders also questioned the utility of requiring a decision maker to make an assessment as to the state of mind of the victim, and whether the violence caused the victim to be reasonably apprehensive about his or her safety or well-being. For example, the Law Institute of Victoria argued that:

The focus on the victim, rather than the perpetrator, is inappropriate because it allows myths and stereotypes to persist about the nature and dynamics of family violence, including who is a victim, what constitutes violence and what is a reasonable response by the victim.^[70]

3.84 As an example of this concern, National Legal Aid submitted that:

It is not uncommon for victims of family violence to return to the family home several times before making the final decision that they can no longer continue to live with their partner … However, returns home and assertive behaviour can be misinterpreted as evidence that the victim is not reasonably fearful/apprehensive and so the victim fails to meet the definition of ‘relevant family violence’.

The emphasis on fear also places an onus on the victim to not only provide evidence of the family violence but also of their mental state at the relevant time. There can be practical implications given the length of time which is sometimes involved in assessing applications and claims. A woman who is now enjoying better health because she is no longer in fear could be potentially disadvantaged as to her credibility.^[71]

3.85 On the other hand, Visa Lawyers Australia—while supporting the ALRC’s definition—emphasised that, in their experience, ‘the current definition of family violence contained in the Migration Regulations works well enough in practice’ and argued that:

the definition was developed for the purposes of determining the victim’s right to a visa despite the breakdown of intimate relationships on which the visa application was based, rather than to establish all the details of the perpetrator’s behaviour per se.

The ALRC’s proposed definition shifts the focus from the victim’s personal experience of family violence to an itemised list of perpetrator behaviour, which has the potential to place undue emphasis on evidence of the perpetrator’s behaviour which may be difficult for the victim to provide. If changes to the definition of family violence are introduced then we respectfully submit that consideration needs to be given to whether the new definition will place onerous evidentiary burden on the applicant.^[72]

Violence perpetrated by someone other than sponsor

3.86 Stakeholders also commented that the definition of ‘relevant family violence’—when read together with visa criteria in Migration Regulations sch 2, stating who can be the ‘alleged perpetrator’ and ‘alleged victim’—does not account for instances where violence is used by someone other than the sponsor, such as a family member of the sponsor. For example, Domestic Violence Victoria and others in a joint submission submitted that:

In Touch Multicultural Centre Against Family Violence can cite multiple cases in which their clients are subjected to violence from family members of the sponsor (brothers, fathers-in-law, mothers-in-law, uncles-nephews etc). In such cases, the victim will not be able to utilise the Family Violence provisions resulting in a significant inequity in the access the equity of the provisions.^[73]

3.87 Similarly, the Refugee and Immigration Legal Service (RAILS) argued that, in its experience:

We are aware that of situations where the sponsoring spouse has not directly perpetrated the violence, but neither have they acted to protect their partner against this violence. We suggest that the legislation be amended to reflect this scenario, or where the sponsoring spouse does nothing to intervene to protect their partner, their apparent condoning of the violence can be regarded as coming within the provisions of the existing legislation.^[74]

3.88 The ANU College of Law submitted that the assumption that limiting the family violence exception only to instances where the perpetrator is the sponsoring partner ‘does not correspond to the reality and complexity of family violence contexts’.^[75]

3.89 In Chapter 20, the ALRC considers whether the family violence exception should extend to cases where the person using the violence is someone other than the sponsor. However, for the purposes of the definition of family violence, the ALRC acknowledges stakeholder concerns that, in the migration context, family violence may be committed by someone other than the sponsor.

The threat of withdrawal of sponsorship and removal

3.90 Another theme that emerged was that the two year probationary period for partner visas—discussed in Chapter 20—allowed sponsors to use the threat of removal from Australia to coerce and control victims of family violence, many of whom lack an understanding of their legal rights, or who may be totally dependent on the sponsor. Stakeholders suggested that the threat to withdraw sponsorship, with the consequences of removal, is routinely used to perpetuate power imbalances in relationships.^[76] For example, the ANU College of Law submitted that:

It is our experience when dealing with victims of family violence that the threat to withdraw sponsorship is one of the most common forms of devices used to ensure compliance with the perpetrator’s wishes … As it stands the current definition does not capture coercion to this level. The failure to accept the repercussions of threats at this level have meant that the victim is often required to argue their case with decisions makers on the grounds of personal danger should they return home instead of the climate of threats they lived under during the relationship.^[77]

3.91 The threat of removal was also raised as an issue by stakeholders in relation to Prospective Marriage (Subclass 300) visas, where a sponsor threatens to withhold marriage from the applicant.^[78] Similar concerns were also raised in relation to secondary visa applicants on visas where there is a pathway to permanent residence, and the primary visa applicant uses the threat of not including the secondary visa applicant in the application for a permanent visa as means of perpetuating family violence dynamics.^[79] The concerns in these two particular contexts are discussed in Chapter 20.

ALRC’s views

3.92 The ALRC confirms its views expressed in Family Violence—A National Legal Response that systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers.

3.93 The ALRC considers that the use of the term ‘relevant’, and the ‘reasonableness’ requirement that focuses on state of mind of the victim in the current definition of ‘relevant family violence’ are problematic. In the ALRC’s view, all forms of family violence should be considered by the decision-maker, with an understanding of the controlling and coercive conduct that causes the victim to fear for his or her safety or well-being. As the Commissions argued in Family Violence—A National Legal Response:

Emphasising the coercive, controlling nature of family violence and how it engenders fear serves an important educative function, as well as a dual pragmatic function … it allows new behaviours—including seemingly ‘minor events’ which may have a particular significance to victims—to be included, provided that they meet this definition.^[80]

3.94 The ALRC acknowledges that, in the migration context, family violence may be committed by members of the family unit of a sponsor. The ALRC considers that a definition that focuses on ‘controlling and coercive conduct’ can adequately cover instances where the visa applicant is subjected to family violence committed by family members of the sponsor, at the instigation or coercion of the sponsor. In addition, the ALRC considers that the definition can also capture a range of other conduct, including where a sponsor threatens to withdraw sponsorship and have the visa holder removed from Australia.

3.95 Thus, the ALRC considers that the Migration Regulations 1994 (Cth) should be amended to insert a definition of family violence consistent with that recommended in Family Violence—A National Legal Response. The ALRC considers that the definition accounts better for the nature, features and dynamics of family violence and will help to improve the safety of those experiencing it.

3.96 The ALRC also considers it important that guidance be given to decision makers in the Department of Immigration and Citizenship’s Procedures Advice Manual 3 (PAM 3) guidelines as to what controlling and coercive conduct may include for the purposes of the definition. At present, PAM 3 has no examples as to what conduct may constitute family violence, nor any specific guidance concerning the definition. Rather officers are instructed that the definition is ‘apt to be re-interpreted by the courts, which could have implications for the types of ‘actions’ captured by the definition’, and advice should be sought as to the current judicial interpretation.^[81]