20. Migration Law—Overarching Issues
21. The Family Violence Exception—Evidentiary Requirements
22. Refugee Law
Proposals and Questions in this Part
20. Migration Law—Overarching Issues
Question 20–1 From 1 July 2011 the Migration Review Tribunal will lose the power to waive the review application fee in its totality for review applicants who are suffering severe financial hardship. In practice, will those experiencing family violence face difficulties in accessing merits review if they are required to pay a reduced application fee? If so, how could this be addressed?
Proposal 20–1 The Migration Regulations 1994 (Cth) should be amended to provide that the family violence exception applies to all secondary applicants for all onshore permanent visas. The family violence exception should apply:
(a) as a ‘time of application’ and a ‘time of decision’ criterion for visa subclasses where there is a pathway from temporary to permanent residence; and
(b) as a ‘time of decision’ criterion, in all other cases.
Question 20–2 Given that a secondary visa applicant, who has applied for and been refused a protection visa, is barred by s 48A of the Migration Act 1958 (Cth) from making a further protection visa application onshore:
(a) In practice, how is the ministerial discretion under s 48B—to waive the s 48A bar to making a further application for a protection visa onshore—working in relation to those who experience family violence?
(b) Should s 48A of the Migration Act 1958 (Cth) be amended to allow secondary visa applicants who are experiencing family violence, to make a further protection visa application onshore? If so, how?
Question 20–3 Section 351 of the Migration Act 1958 (Cth) allows the Minister for Immigration and Citizenship to substitute a decision for the decision of the Migration Review Tribunal if the Minister thinks that it is in the public interest to do so:
(a) Should s 351 of the Migration Act 1958 (Cth) be amended to allow victims of family violence who hold temporary visas to apply for ministerial intervention in circumstances where a decision to refuse a visa application has not been made by the Migration Review Tribunal?
(b) If temporary visa holders can apply for ministerial intervention under s 351 of the Migration Act 1958 (Cth), what factors should influence whether or not a victim of family violence should be granted permanent residence?
The next proposals are presented as alternate options: Proposal 20–2 OR Proposal 20–3
OPTION ONE: Proposal 20–2
Proposal 20–2 The Migration Regulations 1994 (Cth) should be amended to allow a former or current Prospective Marriage (Subclass 300) visa holder to access the family violence exception when applying for a temporary partner visa in circumstances where he or she has not married the Australian sponsor.
OPTION TWO: Proposal 20–3
Proposal 20–3 Holders of a Prospective Marriage (Subclass 300) visa who are victims of family violence but who have not married their Australian sponsor, should be allowed to apply for:
(a) a temporary visa, in order make arrangements to leave Australia; or
(b) a different class of visa.
Question 20–4 If Prospective Marriage (Subclass 300) visa holders are granted access to the family violence exception, what amendments, if any, are necessary to the Migration Regulations 1994 (Cth) to ensure the integrity of the visa system?
Question 20–5 Should the Prospective Marriage (Subclass 300) visa be abolished, and instead, allow persons who wish to enter Australia to marry an Australian sponsor to do so on a special class of visitor visa, similar to that in place in New Zealand?
Question 20–6 Should the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) be amended to provide that sponsorship is a separate and reviewable criterion for the grant of partner visas?
Proposal 20–4 The Australian Government should ensure consistent and regular education and training in relation to the nature, features and dynamics of family violence, including its impact on victims, for visa decision makers, competent persons and independent experts, in the migration context.
Proposal 20–5 The Australian Government should ensure that information about legal rights, family violence support services, and the family violence exception are provided to visa applicants prior to and upon arrival in Australia. Such information should be provided in a culturally appropriate and sensitive manner.
Proposal 21–1 The Department of Immigration and Citizenship’s Procedures Advice Manual 3 should provide that, in considering judicially-determined claims, family violence orders made post-separation can be considered.
Question 21–1 Where an application for a family violence protection order has been made, should the migration decision-making process be suspended until finalisation of the court process?
Proposal 21–2 The requirement in reg 1.23 of the Migration Regulations 1994 (Cth) that the violence or part of the violence must have occurred while the married or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator should be repealed.
Question 21–2 If the requirement in reg 1.23 is not repealed, what other measures should be taken to improve the safety of victims of family violence, where the violence occurs after separation?
The next proposals are presented as alternate options: Proposal 21–3 OR Proposals 21–4 to 21–8
OPTION ONE: Proposal 21–3
Proposal 21–3 The process for non-judicially determined claims of family violence in reg 1.25 the Migration Regulations 1994 (Cth) should be replaced with an independent expert panel.
OPTION TWO: Proposals 21–4 to 21–8
Proposal 21–4 The Migration Regulations 1994 (Cth) should be amended to provide that competent persons should not be required to give an opinion as to who committed the family violence in their statutory declaration evidence.
Proposal 21–5 The Migration Regulations 1994 (Cth) should be amended to provide that visa decision makers can seek further information from competent persons to correct minor errors or omissions in statutory declaration evidence.
Proposal 21–6 The Migration Regulations 1994 (Cth) should be amended to provide that visa decision makers are required to provide reasons for referral to an independent expert.
Proposal 21–7 The Migration Regulations 1994 (Cth) should be amended to require independent experts to give applicants statements of reasons for their decision.
Proposal 21–8 The Migration Regulations 1994 (Cth) should be amended to provide for review of independent expert assessments.
Proposal 22–1 The Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) to visa decision makers to have regard to the Department of Immigration and Citizenship’s Procedures Advice Manual 3 Gender Guidelines when making refugee status assessments.
Question 22–1 Under s 417 of the Migration Act 1958 (Cth), the Minister for Immigration and Citizenship may substitute a decision for a decision of the Refugee Review Tribunal, if the Minister considers that it is in the public interest to do so. Does the ministerial intervention power under s 417 of the Migration Act 1958 (Cth) provide sufficient protection for victims of family violence? If not, what improvements should be made?