Expanding the family violence exception

20.16 During the Inquiry, a major issue identified was whether the family violence exception should be expanded to cover a wider range of visa subclasses. The ALRC recommends that the family violence exception should also be available to Prospective Marriage (Subclass 300) visa holders who are victims of family violence, but who have not married their Australian sponsor. It should also be available to secondary applicants where there is an open application for an onshore permanent visa.

20.17 For victims of family violence on temporary visas, the ALRC recommends that such persons should be able to apply for a temporary family violence visa that would allow them time to access services and make arrangements to leave Australia, or to apply for another visa.

Prospective marriage visas

20.18 A Prospective Marriage visa holder must marry his or her Australian sponsor within the visa period (nine months), before applying for an onshore partner visa. At the time of applying for a temporary Partner Visa (Subclass 820), applicants who are holders (or previous holders) of a Prospective Marriage Visa (Subclass 300) can invoke the family violence exception only if: the person has married his or her Australian sponsor; the marriage has broken down; and there has been family violence committed against the visa applicant, a member of the family unit of the applicant, or a dependent child of the couple by the Australian partner.^[20] In effect, if the marriage never takes place, for whatever reason, the non-citizen who is a victim of family violence is precluded from accessing the family violence exception to obtain permanent residence.

20.19 In the report, Equality Before the Law: Justice for Women (ALRC Report 69), the ALRC expressed concerns in relation to the position of women entering Australia on a Prospective Marriage visa.^[21] The ALRC highlighted concerns that the provisions treat women as a commodity in that ‘if the relationship does not work out, the woman can be sent back to her country of origin’.^[22] Similar concerns have been expressed by academic commentators.^[23]

Vulnerable position of prospective marriage visa holders

20.20 Throughout the Inquiry, the ALRC often heard about the vulnerable position of Prospective Marriage visa holders who are the victims of family violence.^[24] Case studies presented by stakeholders suggest that Prospective Marriage visa holders are even more vulnerable than those on Partner visas, due to: heightened isolation, lack of social and financial support, language barriers, poor knowledge of the legal system, and limited time spent in Australia.^[25]

20.21 In addition to having to relocate to Australia to be married, many victims of family violence find it difficult to return home due to cultural stigma, financial constraints and other reasons, if the marriage does not eventuate. In the worst case scenario, a person may risk persecution upon returning to their country of origin having failed to marry.^[26]

20.22 There was uniform support for the ALRC’s proposal to expand the family violence exception to cover those on Prospective Marriage visas who have not married their Australian sponsor.^[27] DIAC agreed that, as Prospective Marriage visa holders may remain in Australia for up to nine months prior to the marriage,

there is a risk that some visa applicants may be manipulated and forced to remain in an abusive relationship. Such amendments [as proposed by the ALRC] would ensure that Prospective Marriage visa holders have a legal basis for having their claims heard by the Department.^[28]

A legitimate expectation of a permanent migration outcome

20.23 The ALRC considers that expanding the family violence exception to cover Prospective Marriage visas is consistent with the policy intention of the family violence exception—to ensure that visa applicants do not have to remain in a violent relationship to ensure a migration outcome. It is also consistent with the ALRC’s view that the family violence exception should be available where there is a legitimate expectation of a permanent migration outcome. It can be argued that Prospective Marriage visa holders have such an expectation in coming to Australia in order to marry their Australian sponsor with the ultimate aim of applying for a permanent Partner visa.

Preserving the integrity of the system

20.24 DIAC suggested that there was some risk in expanding the family violence exception—‘applicants may perceive the requirements of a Prospective Marriage visa as easier to pass and seek to use this and a family violence claim to obtain permanent residence’.^[29] However, it agreed that such risks could be mitigated if the procedures for verifying the occurrence of family violence were sufficiently robust.^[30] National Legal Aid suggested that the change be the subject of research to ‘identify whether the integrity of the system has been adversely affected’.^[31]

20.25 In the ALRC’s view, the safety of Prospective Marriage visa holders is best ensured by allowing victims to access the family violence exception. If the ALRC’s recommendation is implemented, the Australian Government may wish to consider further amendments to enhance the integrity measures around the criterion for a Prospective Marriage visa.

A new class of visa?

20.26 In Family Violence and Commonwealth Laws (ALRC Discussion Paper 76) (Discussion Paper) the ALRC raised other possible options for reform to ensure that victims of family violence on Prospective Marriage visas were protected including: the introduction of a new temporary visa;^[32] and abolishing the Prospective Marriage visa in favour of a subclass of tourist visa, similar to the approach taken in New Zealand.^[33] There was no support among stakeholders for abolishing the Prospective Marriage visa in favour of a visitor visa model similar to that in place in New Zealand.^[34]

20.27 However, some stakeholders supported the notion of a new temporary visa. Such a visa could to allow victims to pursue Ministerial Intervention under s 351 of the Migration Act without first having to appeal the decision to cancel the Prospective Marriage visa to the Migration Review Tribunal (MRT), or allow a period of time for recovery from trauma associated with family violence and to make appropriate arrangements to leave Australia.^[35]

20.28 DIAC considered that retaining the Prospective Marriage visa would keep intact some system integrity measures beneficial to both it and visa applicants. The creation of a new class of visitor visa was considered inappropriate as the current visitor visas requires that applicants ‘intend only a visit to Australia—rather than have a pre-formed intent to seek to migrate’.^[36] The new visitor visa would not be more beneficial to victims of family violence because those on the new visitor visa

may have a reasonable expectation of being sponsored for a permanent visa at the conclusion of their initial stay. This would be the case particularly for fiancés or couples who wish to use such a visa to develop their relationship to a point required for a Partner visa. As a result, holders of this visa may have similar incentives to remain in a violent relationship as some Prospective Marriage visa applicants currently do.^[37]

20.29 DIAC also argued that creation of a new visitor visa would also be contrary to ‘deregulation efforts underway by the Department to reduce the number of visas and simplify them’.^[38]

20.30 DIAC argued that an advantage of keeping the Prospective Marriage visa—in addition to allowing a nine-month stay, as opposed to three months for visitor visas—is that both applicants and sponsors must meet a range of other migration checks, including in depth health and character assessment.^[39] It also allows for some scrutiny of relationship intentions as applicants are required to have met their sponsor in person and to have formed a genuine intention to marry. No such requirements are in place for visitor visas.

20.31 The ALRC is of the view that the safety of victims of family violence would be best achieved by retaining the Prospective Marriage visa and providing for access to the family violence exception, rather than the creation of a new visitor visa subclass for this purpose.

Secondary applicants for permanent visas

20.32 The ALRC recommends that the Migration Regulations should be amended to provide that the family violence exception is accessible by secondary applicants for all onshore permanent visas.

20.33 A number of temporary or provisional visas provide a pathway to permanent residency—that is, to be eligible for a permanent visa; a person must have previously held a temporary or provisional visa.^[40] Stakeholders have expressed concern that, where such pathways exist, secondary visa holders—usually a spouse and/or children—are especially vulnerable to family violence, as they are dependent on the relationship with the primary visa holder for a permanent migration outcome. For example, National Legal Aid expressed concern that the threat of removal of the application for a permanent visa is one way that family violence can be perpetuated:

We are of the view that family violence … can potentially arise in any kind of visa … Our experience is that the primary visa applicant may use the conditions of the temporary visa to perpetrate what is in effect further family violence on the dependents of the visa holder by threatening to remove the spouse from the visa and keep the children on the visa.

Towards the end of the temporary visa when an application is to be made for permanent residency, it is also not uncommon for an application to be made for permanent residency on behalf of the primary visa applicant and the children leaving the spouse of the visa applicant without legal status upon the expiration of the temporary visa.^[41]

20.34 A problem arises that, by the time an application for a permanent visa is made, a secondary visa applicant—who may have been in a violent relationship for some time on the temporary visa—has no access to the family violence exception. A victim of family violence may therefore feel compelled to stay in that violent relationship until such time as the person and his or her partner are granted permanent visas, before taking steps to ensure safety.

20.35 Many stakeholders supported expanding the family violence exception to secondary applicants when an application for a permanent visa is made.^[42] The Immigration Advice and Rights Centre (IARC) agreed that all secondary applicants for permanent visas should be able to access a ‘consistent and fair regime to gain Australia’s protection if they become a victim of family violence at the hands of a primary visa applicant’.^[43] DIAC suggested that expanding the family violence exception in this way is consistent with the ‘policy rationale behind the family violence exception to prevent people remaining in violent relationships in order to preserve his or her eligibility for a permanent visa’ and that:

to do this effectively, it is necessary to identify people who have a reasonable expectation of obtaining permanent residence on the basis of their partner relationships. The Commission’s proposal to open the provisions to people in Australia with open permanent visa applications would be a feasible way of identifying this cohort.^[44]

The need for consistency

20.36 The ALRC considers that the inconsistent and differential application of the family violence exception across different visa subclasses may threaten the safety of victims of family violence. Consistency in the application of the family violence exception across visa subclasses addresses a key theme in this Inquiry—that of accessibility.

20.37 There appears to be no sound policy reason why the exception should apply to protect secondary visa applicants on certain business (skilled stream) visas—as it currently does—but not to other onshore permanent visas. Family violence situations may arise between a primary and secondary visa applicant for any kind of visa. Victims should not have to remain in a violent relationship in order to ensure that their eligibility for a permanent visa is preserved.

20.38 Family violence may have occurred before and/or after an application for a permanent visa is made. Therefore the family violence exception should be made available to secondary applicants as a time of application or time of decision criterion in respect of a permanent visa application.

Consequential considerations

20.39 DIAC also suggested that if the family violence exception were to be expanded to cover all secondary applicants for permanent visas, consideration would have to be given to some consequential policy and implementation issues, including:

• measures to ensure that the expanded provisions worked with an appropriate measure of system integrity, for example a requirement that the primary applicant is granted a visa before a victim is granted theirs and/or a sponsorship bar that prevented the victim from sponsoring their ex-partner for 5 years;
• interaction with ‘Skill Select’, a new model for selecting skill migrants which will take effect from 1 July 2012 and which will change both the visa application process and the distribution between onshore and offshore visas for skilled migrants;
• how such provisions would apply to long-term Subclass 457 visa holders who move to Employer Nominated Scheme (ENS) or Regional Skilled Migration Scheme (RSMS) visas; and
• how would the Department best ensure consistency in the processing of family violence cases across multiple visa streams.^[45]

20.40 The ALRC agrees that such considerations will need to be considered when implementing the ALRC’s recommendation.

Temporary visas

20.41 For secondary visa holders of temporary visas, the ALRC recommends that a new temporary visa be created to allow victims of family violence to remain in Australia for a period of time to access services and make arrangements to return to their country of origin or to apply for another visa.

20.42 Some stakeholders expressed concerns for the safety of primary holders of student and visitor visas who form a relationship with an Australian resident and are subjected to family violence.^[46] Similar concerns were expressed in relation to secondary holders of temporary visas, who may be subjected to family violence by a primary visa applicant.^[47]

20.43 Divergent views were expressed by stakeholders about the legitimate role of the migration system in ensuring the safety of victims of family violence who are in Australia temporarily. A number of stakeholders argued that the family violence exception should apply to temporary visa holders, to give effect to Australia’s ‘overriding obligation’ as a party to international human rights instruments.^[48] Others argued that there is no need for reform of migration law ‘in relation to family violence matters for those victims who come to Australia on a truly temporary basis (such as tourism or business visitors, international students and their spouses) knowing that they have to return to their prospective countries’.^[49]

Expectation of a permanent migration outcome

20.44 Section 30 of the Migration Act defines a ‘temporary visa’ as a visa that allows the holder to remain in Australia for a specified period while the holder has a specified status. One problem with extending the family violence exception to cover temporary or provisional visas lies in being able to define when and whether there is a reasonable expectation of a permanent migration outcome. DIAC submitted that—unlike the situation where a permanent visa application has been made, and a reasonable expectation of a migration outcome is formed—‘it would be legally and practically more difficult to define groups of temporary residents who had similar reasonable expectations’.^[50]

20.45 Other stakeholders pointed out that, in practice, there are some temporary visa subclasses where applicants may have a reasonable expectation of a permanent migration outcome once certain conditions are satisfied. For example, the Migration Institute of Australia submitted that ‘this is particularly true of many holders of Subclass 457 visas, a considerable number of whom go on to obtain permanent residence through employer sponsorship’.^[51]

Ministerial intervention

20.46 In the Discussion Paper, the ALRC asked whether s 351 of the Migration Act should be amended to allow victims of family violence on temporary visas to apply for Ministerial Intervention in circumstances where there has not been a decision made by the MRT and, if a permanent visa is granted, what factors should influence this decision.^[52]

20.47 Stakeholders did not support such an amendment.^[53] DIAC submitted that Ministerial Intervention provisions ‘are designed as a safety net option of last resort for people who do not meet the legal requirement for the grant of a visa’, such that allowing victims of family violence to make direct requests to the Minister would

fundamentally change the concept and operation of the Ministerial Intervention … [and] may also raise questions such as why family violence victims get direct access to the Minister, while such direct access is not available to other vulnerable groups, such as the parents of young Australian citizen children.^[54]

A new temporary visa for victims of family violence?

20.48 The Law Institute of Victoria (LIV) submitted that, even if the family violence exception were to be expanded to cover secondary visa applicants where an application for a permanent visa has been made—as the ALRC recommends—this does not provide a pathway ‘for a person on a temporary visa who suffers family violence and then leaves the primary visa holder, where no further visa application is made by the primary visa holder’.^[55] The LIV therefore recommended that a new subclass be created for ‘victims of family violence who hold temporary Spouse Dependent visas’.^[56] The LIV envisaged that such a visa would allow the victim to stay in Australia for a temporary period of time—irrespective of when the violence occurred and the temporary visa type—allowing the victim time to access support services and decide how to proceed.^[57]

20.49 In Canada, a person on a temporary visa can still apply for permanent residence on ‘Humanitarian and Compassionate’ grounds if he or she has experienced family violence.^[58] A number of considerations must be taken into account in considering an application on this basis, including: establishment in, and ties to, Canada; the best interest of any children involved; health considerations; consequences of the separation of relatives; factors in the applicant’s country of origin; and the degree of establishment in Canada.^[59]

20.50 There was considerable support for the creation of a new visa in Australia, taking into consideration the Canadian approach.^[60] For example, the ANU Migration Law Program submitted that such a visa

would break the nexus of dependence on the primary visa applicant and allow them to apply for a visa separately. The visa application would need to carry with it the right to a bridging visa with work rights to allow applicants to maintain households and care for any dependants.^[61]

20.51 The Refugee Advice and Casework Service (RACS) agreed that, if there is a need to allow a temporary visa holder to remain in Australia temporarily after leaving the violent relationship,

a practical measure would be to allow victims to apply for a Bridging Visa E, based on the victim’s intention to make suitable arrangements to leave Australia, rather than through avenues of Ministerial Intervention’.^[62]

20.52 The Migration Institute of Australia submitted that the factors listed in the Canadian model should be taken into consideration in determining whether a permanent visa should be granted.^[63]

Separating protection from the migration outcome

20.53 The visa system contemplates that temporary visas, by their nature, do not envisage an applicant being in Australia beyond the specified period contemplated by the relevant visa. Any move to extend the family violence exception to apply to temporary visas or to create a new visa subclass that provides for a permanent migration outcome, risks creating an incentive to claim family violence as a means of securing a migration outcome. On the other hand, the ALRC acknowledges that Australia owes legal and moral obligations to ensure the safety of those who are in Australia on temporary visas.

20.54 The ALRC considers that there is merit in creating a new temporary visa subclass for secondary visa applicants who are victims of family violence. Such a visa should entitle the holder to access social security benefits and entitlements. A temporary visa that gives victims time and resources to access support services and make arrangements to leave Australia better ensures the safety of victims of family violence. It allows victims to leave a violent relationship with knowledge that they can take measures to protect their safety without being removed from Australia immediately. However, it is important that such a visa is temporary, so as not to ‘incentivise’ family violence claims.

20.55 If the temporary visa holder applies for another visa with a permanent migration outcome, the integrity of the system is not compromised as the applicant will have met the requirements for a permanent visa in his or her own right.

20.56 If a new temporary visa subclass is created, this may alleviate the burden on Ministerial Intervention under s 351 of the Migration Act—a measure of last resort. Ministerial Intervention could accommodate cases where victims of family violence have resided in Australia for a long period of time and have formed strong ties, or have children resulting from the relationship. In these cases, the expectation of, and necessity for, a permanent migration outcome could be matters to be considered by the Minister for Immigration and Citizenship.

Access to family violence services and social security

20.57 During the Inquiry, stakeholders expressed considerable concern about the limited ability for temporary visa holders to access crisis services, accommodation, and income support.^[64] For example, Domestic Violence Victoria and others in a joint submission submitted that, in relation to temporary visa holders:

Access to emergency accommodation for this group of women is very limited … the lack of housing options, ineligibility for public and community housing and lack of income support all limit the capacity of family violence services to support women without residency rights.^[65]

20.58 In the Discussion Paper, the ALRC expressed a view that there is a role for the migration system in ensuring access to family violence services and social security entitlements for temporary visas. Stakeholders have argued that, in practice, certain visa subclasses restrict the ability of victims to access to family violence services and social security payments and entitlements.^[66] As noted in Chapter 7, a general principle of social security law is that a person must be an Australian resident—defined as an Australian citizen, a permanent visa holder, or a Protected Special Category visa holder—to qualify for social security payments and entitlements.^[67] In addition to meeting the residence requirements, some payments require an applicant to also meet the ‘newly arrived resident’s waiting period’, being a period of, or periods totalling, 104 weeks (2 years) before benefits are payable.^[68]

20.59 The Minister for Families, Community Services and Indigenous Affairs has power to make determinations to allow the holders of particular temporary visas to meet the residence requirements for Special Benefit.^[69] Currently, such determinations are in force for nine types of temporary visa, including Partner (Subclass 820 and 209) visas.^[70]

20.60 There appears to be no reason why such a determination could not also be made in relation to any new visa subclass introduced in line with Recommendation 20–3. The policy intention behind exemption from Special Benefit is to recognise that a person may suffer a ‘substantial change in circumstances beyond their control’, where there is ‘domestic violence perpetrated by the sponsor’.^[71]

20.61 Access to appropriate social security payments and entitlements may empower victims to leave violent relationships, and to take measures to ensure their safety. Access to Special Benefit will go some way to ensure that those on the new temporary family violence visa have some financial control over their lives, and are able to access family violence services, and other services to ensure their safety. The ALRC makes recommendations about this in Chapter 7.^[72]