Evidentiary requirements

Legislative history

21.6 In their initial form, the Migration Regulations restricted the forms of acceptable evidence to support a family violence claim to judicially-determined evidence.[2] However, in response to concerns that immigrant women faced barriers to accessing the judicial system—and the ALRC’s recommendations in the 1994 report, Equality Before the Law: Justice for Women (ALRC Report No 69)[3] (Equality Before the Law)—legislative changes were introduced in 1995 to broaden the range of evidence that could be provided to prove that family violence had occurred.

21.7 These changes introduced ‘non-judicially determined’ forms of evidence, including statutory declarations from the applicant and certain ‘competent persons’.[4] The result was the creation of a two-track system—judicially and non-judicially determined claims—through which victims of family violence could access the family violence exception and be granted permanent residence. The ultimate decision as to whether a person met the family violence exception remained with the visa decision maker.

21.8 While the 1995 amendments made the exception more accessible to victims of family violence, it caused some unintended consequences. In particular, there was uncertainty as to the level of evidence required in a competent person’s statutory declaration to satisfy a visa decision maker that family violence had occurred, and also whether the visa decision maker could question the veracity of a competent person’s opinion.

21.9 As a result of these concerns, the Australian Government sought to amend the legislation to make the evidentiary requirements more rigorous.[5] However, the resolution to pass these amendments was disallowed by the Senate on 1 November 2000.[6]

The current evidentiary regime

21.10 In 2005, the Migration Regulations were amended to provide a new system of non-judicially determined evidence.[7] As a result, the current system provides that:

  • if the visa decision maker is satisfied on the non-judicially determined evidence that the applicant has suffered ‘relevant family violence’, the visa decision maker must proceed with the visa application on that basis;[8] or
  • if the visa decision maker is not satisfied that the applicant has suffered family violence on the basis of non-judicially determined evidence, the matter must be referred to an ‘independent expert’ for assessment;[9] and
  • the visa decision maker must take as correct the opinion of the ‘independent expert’.[10]

21.11 These amendments reflected the policy position that where evidence of family violence has not been tested by a court, such evidence is ‘to be assessed by the Minister, and in certain circumstances, an independent expert’.[11] An ‘independent expert’ is defined in reg 1.21 of the Migration Regulations 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’.[12] The only organisation gazetted is Centrelink.[13]

[2] Applicants were required to substantiate their claims of family violence through the judicial system, involving police and the courts.

[3] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), Rec 10.2. The ALRC recommended that the family violence exception should extend to cases where evidence of domestic violence is available from community and welfare workers, medical and legal practitioners and suitable third parties.

[4] The role of ‘competent person’ is discussed in more detail below.

[5] See Migration Amendment Regulations (No 5) 2000 (Cth). It was proposed that where an applicant makes a non-judicially determined claim of family violence, the then Department of Immigration and Indigenous Affairs (DIMIA) must refer the matter to Centrelink for assessment by a social worker. That person must be employed by Centrelink as a social worker, and must be, or eligible to be, a member of the Australian Association of Social Workers. If the matter was appealed to the Migration Review Tribunal (MRT), the Tribunal would have the discretion to ask Centrelink for a report.

[6] See Commonwealth, Parliamentary Debates, Senate, 1 November 2000, 18870 (P McKiernan—Senator).

[7]Migration Amendment Regulations (No 4) 2005 (Cth).

[8]Migration Regulations 1994 (Cth) reg 1.23(10)(a).

[9] Ibid reg 1.23(10)(b).

[10] Ibid reg 1.23(10(c).

[11] Explanatory Memorandum, Migration Amendment Regulations (No 4) 2005 (Cth).

[12]Migration Regulations 1994 (Cth) reg 1.21.

[13] See Commonwealth of Australia, Special Gazette S119 (2005). As discussed in Ch 4, Centrelink is now part of the Department Human Services (DHS).