19.12.2011
20.1 This chapter considers issues surrounding the family violence exception contained in the Migration Regulations 1994 (Cth). The exception—which is invoked mainly in partner visa cases—provides for the grant of permanent residence to victims of family violence, notwithstanding the breakdown of the spouse or de facto relationship on which their migration status depends.[1]
20.2 The suite of recommendations in this chapter aims to improve the accessibility of the family violence exception to victims of family violence.
20.3 The ALRC’s principal recommendation is that the family violence exception should be expanded to cover secondary applicants for onshore permanent visas, and holders of a Prospective Marriage (Subclass 300) visa who have experienced family violence but who have not married their Australian sponsor. The ALRC makes a further recommendation that secondary applicants for a temporary visa should be able to access a new onshore temporary visa, to allow them to remain in Australia to seek services and make arrangements to return to their country of origin, or to apply for a new visa.
20.4 The ALRC also recommends targeted education and training for visa decision makers, ‘competent persons’[2] and ‘independent experts’[3], and better information dissemination for visa applicants in relation to legal rights and family violence support services, prior to and on arrival in Australia.
[1] Provisions relating to family violence are found in the Migration Regulations 1994 (Cth) pt 1 div 1.5. In this Report the ALRC uses the expression ‘family violence’, as defined in Ch 3. A number of overseas jurisdictions use the term ‘domestic violence’ in their legislation—where that is the case, the ALRC replicates that terminology.
[2] ‘Competent persons’ refer to a range of professionals who may give statutory declaration evidence in support of a non-judicially determined claim of family violence. See Ch 21.
[3] An ‘independent expert’ refers to a Centrelink social worker, to whom a visa decision maker can refer a non-judicially determined claim of family violence where he or she is not satisfied on the evidence presented that the applicant has suffered family violence. See Ch 21.