44. The family violence exception operates as a deeming provision. A person, who claims to be a victim of family violence, will be ‘taken to have suffered relevant family violence’ if, among other things, a valid claim is made based on judicially or non–judicially determined evidence of family violence.
45. The categories of judicially and non-judicially determined evidence, examined below, serve to highlight the balancing of important policy considerations in this area. On the one hand, requiring evidence of family violence that has been the subject of judicial consideration—while preferable—places particular burdens on migrant victims who may lack resources and access to courts. On the other hand, it could be argued that evidence from non-judicial sources—in the form of statutory declarations from doctors, nurses and psychologists—lacks the robustness of court procedures where evidence is tested, and hence may be open to abuse.
Assessment of family violence claims
46. The Regulations suggest a preference for evidence of family violence that has been considered by a court, resulting in a court conviction, an injunction, or a protection order under state and territory laws. Thus, where an applicant presents judicially determined evidence of family violence, the Regulations require that the decision maker proceed with the visa application on the basis that the alleged victim has suffered ‘relevant family violence’.
47. In contrast, where evidence of family violence stems from non-judicial sources, the decision maker must determine if satisfied on the evidence presented, that the alleged victim has suffered ‘relevant family violence’. If so satisfied, the decision maker must consider the application on that basis. If the decision maker is not so satisfied, the decision maker must refer the matter to an ‘independent expert’ for assessment, and must take the opinion of the independent expert, to be correct.
48. ‘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’. The only organisation gazetted is Centrelink.
Judicially determined claims of family violence
49. 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, granted on application by the alleged victim against the alleged perpetrator; or
a conviction against the alleged perpetrator, or finding of guilt against the alleged perpetrator, in respect of an offence against the victim; 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 had given the alleged perpetrator an opportunity to be heard, or otherwise make submissions.
50. For protection orders granted under state and territory law to be considered under reg 1.23(4), they must be granted after the alleged perpetrator has been given an opportunity to make submissions. The Regulations do not require that an order be a final order, meaning that, prima facie, interim orders may meet the requirements. However, interim orders that are made ex parte may not comply with the Regulations, if the alleged perpetrator was not given the opportunity to be heard or make submissions.
51. In ALRC Report 114, stakeholders raised concerns that making judicially determined claims may be a hurdle for migrants. The Victorian Government highlighted, for example, that:
Research points to a high level of under-reporting of domestic violence, especially among immigrant and refugee women, and few proceed through the court process. This would suggest that many immigrant and refugee women would have difficulty meeting the judicial evidence requirement of the regulations.
52. In its submission, Immigrant Women’s Support Services (IWWS) expressed concerns about amendments made to the Regulations in November 2009, introducing a requirement that, for judicially determined claims, ‘the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married or de facto relationship was in existence’. In particular, IWWS were concerned that since the introduction of this amendment, DIAC officers were not readily accepting a final family violence protection order obtained afterseparation. 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. This concern highlights the fact that the Regulations fail to take into account that victim safety may be under threat during the separation period, when there is an increased risk of family violence.
53. The ALRC is interested in comment on the issues that arise with respect to the use of judicially determined claims of family violence in migration matters.
Question 5 What issues arise for applicants in making judicially determined claims of family violence under the Migration Regulations 1994 (Cth)?
Question 6 Should the Migration Regulations 1994 (Cth) be amended to make it clear that a family violence protection order granted after the parties have separated is sufficient evidence that ‘relevant family violence’ has occurred?
Non-judicially determined claims of family violence
54. Non-judicially determined claims of family violence were introduced in response to concerns that migrant communities—particularly those from non-English speaking backgrounds—lacked access to courts. Acceptable evidence for making a non-judicially determined claim includes:
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;
a police record of assault along with two statutory declarations—one from the alleged victim, plus a statutory declaration made by a competent person; or
three statutory declarations—a statutory declaration from the alleged victim, plus two statutory declarations by two differently qualified competent persons.
The role of competent persons
55. Reg 1.21 of the 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 registered medical practitioner;
a registered psychologist;
a registered nurse;
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;
a person who is 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
a person with 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.; and
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. 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. 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.
58. 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.
59. For example, in Du v Minister for Immigration and Multicultural and Indigenous Affairs, 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’.
60. Matthews J accepted the above evidence, but found these declarations did not meet the ‘specific and peremptory terms’ of the 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. 
61. Strict interpretation of the statutory requirements has been favoured 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 federal—statutory declaration form;
was signed one day and witnessed on another;
did not specify that the competent person was a coordinator of a women’s refuge.
62. 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;
did not state who had committed the family violence;
simply recited the possession of an opinion, rather than clearly expressing an opinion;
included the wrong mix of ‘competent persons’.
63. Concerns have been expressed 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 Regulations, have produced unconscionable rigidities in the law, to the point where the regime has been described as a ‘triumph of form over substance’. This may have the effect of unduly denying victims of family violence access to the family violence exception.
64. Chris Yuen argues that, given that there is a mechanism for referral to an independent expert if the claim is doubtful, there is no need to apply the Regulations strictly in relation to statutory declarations made by competent persons. This may be contrasted with the position prior to the introduction of referral to an independent expert in 1995, when the decision maker had to accept that the alleged victim had suffered family violence if the statutory declarations complied with the Regulations. Under those circumstances, there may have been greater policy justification for a strict interpretation of the Regulations.
65. Further, competent persons are required to give evidence about whohas committed the ‘relevant family violence’. Doctors, nurses and psychologists are, arguably, in a position to provide an opinion on whether the victim has suffered psychological or physical violence. However, it may be questioned whether it is appropriate to require competent persons to name who has committed the ‘relevant family violence’.
66. In ALRC Report 114, the Commissions considered that a proper understanding of the nature and dynamics of family violence and its impact on victims better enables those working in the system to support and assist victims. To this end, the Commissions recommended that the Australian, state and territory governments, and educational, professional and service delivery bodies, ensure regular and consistent training for all participants. The ALRC is interested in comment about whether competent persons receive adequate training and education about the nature and dynamics of family violence.
67. The ALRC is interested in comment about, and experiences in, using ‘competent persons’ in non–judicially determined claims of family violence. In particular, have the Regulations struck the requisite balance between the protection of victims of family violence and preventing abuse of the provisions?
Question 7 Are the provisions governing the statutory declaration evidence of competent persons in the Migration Regulations 1994 (Cth) too strict? If so, what amendments are necessary?
Question 8 Should the Migration Regulations 1994 (Cth) be amended to provide that minor errors or omissions are not fatal to the statutory evidence of a competent person?
Question 9 Is it appropriate for competent persons to give evidence about who has allegedly committed ‘relevant family violence’?
Question 10 What training do competent persons receive about the nature and dynamics of family violence?
The role of independent experts
68. As noted above, for non-judicially determined claims, if the decision maker is not satisfied that the alleged victim has suffered ‘relevant family violence’, the matter must be referred to an ‘independent expert’ within Centrelink.
69. In cases before the MRT, the Tribunal is under no statutory obligation to provide reasons as to why it is not satisfied that the alleged victim has suffered family violence and is referring the matter to an ‘independent expert’. Similarly, there is no guidance in the Regulations as to what is required for referral to an ‘independent expert’.
70. There has been some judicial consideration as to 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’. 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 independent expert.
71. The ALRC is interested in obtaining detailed information about the decision making processes of ‘independent experts’ within Centrelink. In its submission to the inquiry resulting in ALRC Report 114, National Legal Aid submitted that:
There is very limited transparency and accountability in relation to decisions of independent experts, despite the fact that they are accorded considerable power in the decision making process. Applicants are not generally provided with the experts’ full reasons for decision unless a specific request for access is made. In Legal Aid NSW’s experience, decision makers have tended to give little or no consideration to the issue of whether the expert’s opinion was properly formed in accordance with the definition of relevant family violence.
Although in some cases it may be possible to seek judicial review of decisions on the basis that the independent experts’ opinion was not given in accordance with the Regulations, many applicants (particularly unrepresented applicants) are likely to be unaware of this.
72. The Regulations are silent as to 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.
73. The ALRC is interested in comment about the role of independent experts in non-judicially determined claims of family violence. Further, in considering the mechanisms for making non-judicially determined claims of family violence, do applicants face other difficulties in meeting the evidentiary requirements?
Question 11 What issues arise in relation to the use of independent experts in the determination of non–judicially determined claims of family violence made under the Migration Regulations 1994 (Cth)? For example:
(a) should the legislation require decision makers to give reasons for referring the matter to an independent expert?
(b) what issues, if any, are there about those who are suitably qualified to give expert opinions?
(c) should the Migration Regulations 1994 (Cth) specifically require independent experts to provide full reasons for their decisions to the applicant?
Question 12 Should the requirement that, an opinion of the independent expert is automatically to be taken as correct, be reconsidered? Should there be a method for review of such opinions?
Question 13 Do applicants in migration matters face difficulties in meeting evidentiary requirements in making claims of non-judicially determined claims of family violence? If so, how could these difficulties be addressed?
A need to streamline the process?
74. Current legislative arrangements under the Regulations potentially require a victim of family violence to recount their experiences and submit evidence numerous times during the course of the visa process. This may have the effect of re-traumatising victims.
75. For example, a victim may give evidence of family violence to ‘competent persons’ in order to make a non-judicial claim of family violence. If the decision maker is not satisfied as to the existence of family violence, the matter is referred to an independent expert, before whom the victim may be called to give further evidence. If the matter reaches the MRT, there is some ambiguity about whether the tribunal is bound by the existing independent expert opinion, or must follow the procedure in div 1.5 of the Regulations again. That is, whether the tribunal must consider for itself whether it is satisfied on the evidence that the victim has suffered family violence, and if not, seek a fresh opinion of an independent expert. In the latter case, this may require a victim again to resubmit evidence to a decision maker sometime after the event has taken place.
76. The ALRC is interested in comment on whether there is merit in streamlining the evidentiary process in migration-related family violence cases to reduce the effect of re-traumatisation on victims, and if so, in what ways. In raising this issue, the ALRC is aware of the importance of the need to balance the integrity of the visa system—ensuring only genuine victims can access the exception—with protecting the safety of victims of family violence.
Question 14 In what ways, if any, should the evidentiary process for giving evidence in migration–related family violence cases be streamlined? For example, would there be merit in:
(a) streamlining the system to allow victims of family violence to obtain an opinion of an independent expert, without the need to first seek evidence from a competent person? or
(b) requiring the Migration Review Tribunal to be bound by an existing independent expert’s opinion obtained by the primary decision maker?
 See Migration Regulations 1994 (Cth) regs 1.23(2)–(7) (for judicially determined claims); regs 1.23(8)–(9) (for non–judicially determined claims).
 Ibid regs 1.23(2), (4), (6).
 Ibid reg 1.23(10)(a).
 Ibid reg 1.23(10)(b).
 Ibid reg 1.23(10)(c).
 Ibid reg 1.21.
 See Commonwealth of Australia, Special Gazette S119 (2005).
 Migration Regulations 1994 (Cth) reg 1.23(2). The injunctions referred to in s 114 of the Family Law Act 1975 (Cth) relate to injunctions: for personal protection of a party to a marriage; restraining a party of the marriage from entering a matrimonial home or the premises in which the other party resides; and restraining a party to the marriage from entering the place of work of the other party to the marriage.
 Ibid reg 1.23(6).
 Ibid reg 1.23(4).
 Departmental guidelines for decision makers suggest that ex parte orders are generally not to be accepted. See Department of Immigration and Citizenship, Procedures Advice Manual 3, Family Violence Provisions, [19.3].
 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report 114; NSWLRC Report 128 (2010), 287.
 See Migration Regulations 1994 (Cth) regs 1.23(2), 1.23(5), 1.23(7), 1.23(12) and 1.23(14). These amendments to reg 1.23 were made by the Migration Amendment Regulations (No 12) 2009 (Cth).
 See Immigrant Women’s Support Service, Submission FV 61 Part 1, 1 June 2010, 8.
 See M Crock, ‘Women and Migration Law’ in P Easteal (ed) Women and the Law (2010) 328, 344.
 Migration Regulations 1994 (Cth) reg 1.23(8).
 Ibid regs 1.23(9), 1.24(1)(a).
 Ibid regs 1.24(1)(b), 1.24(2).
 Ibid reg 1.21(1)(a).
 Ibid reg 1.21(1)(b).
 Ibid regs 1.26(a)–(g).
 Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94, .
 Du v Minister for Immigration and Multicultural Affairs  FCA 1115.
 Ibid, , .
 Ibid, , .
 See Mohamed v Minister for Immigration and Citizenship (2007) 96 ALD 114.
 McGuire v Minister for Immigration and Indigenous Affairs  FMCA 1014, .
 Kun Yu Cao v Minister for Immigration and Citizenship  FMCA 1239.
 See Safatli v Minister for Immigration and Citizenship  FMCA 1191, where the court found the applicant did not meet the statutory requirements in circumstances where the psychologist had provided his registration number and ticked the box on the form indicating that he was a competent person for the purposes of the Regulations. Rather, the court indicated that a statement such as ‘I am a psychologist registered as a psychologist under a law of the state of Victoria providing for the registration of psychologist’ would have sufficed.
 Theunissen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 97. Where more than one person is listed in the statutory declaration as having committed the relevant family violence, it is likely that the competent person must identify who has done what.
 See, eg, Minister for Immigration and Citizenship v Ejueyitsi (2007) 159 FCR 94, –, citing Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 1279, , where the court found that a doctor’s statement that ‘based on my full clinical assessment, I am of the opinion that Mr Ibrahim most likely suffered from family violence’ did not meet the legislative requirements. Rather, according to the court, it was no more than a ‘trust me’ statement, which did not express an opinion.
 See, eg, Mardini v Minister for Immigration  FMCA 1409.
 M Crock, ‘Women and Migration Law’ in P Easteal (ed) Women and the Law (2010) 328, 335.
 See Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183; Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 1279.
 C Yuen, ‘The Problematic Family Violence Provisions’ (2010) (92) Immigration News 4, 4.
 See Migration Amendment Regulations (No 4) 1995 (Cth).
 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report 114; NSWLRC Report 128 (2010), Rec 31–1.
 Sok v Minister for Immigration and Citizenship  FMCA 1525, .
 Ibid, .
 Ali v Minister for Immigration and Multicultural Affairs  FMCA 1405, .
 National Legal Aid, Submission to the Australian Law Reform Commission – Family Violence: Improving Legal Frameworks Consultation Paper (2010) <http://www.nla.aust.net.au/res/File/NLA-ALRC-submission-15-07-10.pdf> at 16 February 2011.
 Migration Act 1958 (Cth) s 359A. For an illustrative example of the procedure followed by the MRT, see Alameddine v Minister for Immigration and Citizenship  FMCA 313.
 See Sok v Minister for Immigration and Citizenship (2008) 238 CLR 251, where the High Court held that the MRT can exercise all the powers and discretions in div 1.5 of the Regulations itself.