Non-judicially determined claims of family violence

International comparisons

21.33 A number of overseas jurisdictions—including the US, Canada, UK and New Zealand—have family violence provisions. Although these models reflect differing policy considerations in their respective countries, their approaches to evidentiary requirements provide a useful point of comparison with the Australian system.

United States

21.34 The US has a comprehensive legislative scheme for the protection of immigrant women who are victims of ‘domestic violence’.^[37] This is enshrined in the Violence Against Women Act (VAWA) of 1994.^[38]

21.35 Under US immigration law, spouses of US citizens or lawful permanent residents may be granted conditional residence status, for a period of two years. In order to gain permanent residence, the couple must file a joint petition for removal of the conditional residency status within a 90 day period before the expiration of the two year conditional residence grant.^[39] That is, the immigrant must be supported in the petition for permanent residence by his or her US spouse.

21.36 The key protection mechanism in VAWA allows persons who are victims of domestic violence to self-petition for removal of their conditional residency status independently of their spouse.^[40] A victim must be able to show that: the marriage was entered into in good faith; the abuser was a US resident or lawful permanent resident; he or she resided with the US resident or lawful permanent resident; during the marriage, either he or she, or a child, had been battered or subjected to extreme cruelty perpetrated by the US resident or lawful permanent resident; and he or she is of good character.^[41] The protection extends to divorced women and widows who apply for self-petition within two years of divorce or death of the US citizen or lawful permanent resident.^[42]

21.37 Although most victims of domestic violence will be able to apply for the self-petition, it is unavailable to those who are already in removal proceedings—typically, because he or she is present in the US without legal immigration status. In these cases, victims of domestic violence may seek to cancel their removal from the US on this basis.^[43] Applications are made to a judge and, if successful, cancellation of removal entitles a victim to permanent residence.

21.38 The VAWA and the United States Code contain no specific provisions in relation to evidentiary requirements to support a claim for self-petition or cancellation of removal. Rather, a victim must fill out an application form and attach all supporting documentary evidence supporting the claim. Generally, applicants are encouraged to seek assistance from an attorney when making an application. In relation to cancellation of removal status, the United States Code provides that the Attorney-General ‘shall consider any credible evidence relevant to the application’.^[44]

Canada

21.39 In Canada, a person whose sponsorship has broken down due to family violence can apply for permanent residence on ‘Humanitarian and Compassionate’ grounds,^[45] whether or not the person has temporary residence status.^[46] Under the Immigration Guidelines, ‘Humanitarian and Compassionate’ grounds refer to circumstances where ‘unusual, undeserved or disproportionate hardship would be caused to the person if he or she had to leave Canada’.^[47] The guidelines for officers determining applications explicitly recognise family violence:

Family members in Canada, particularly spouses, who are in abusive relationships and are not permanent residents or Canadian citizens, may feel compelled to stay in the relationship or abusive situation to remain in Canada; this could put them in a situation of hardship.

Officers should be sensitive to situations where the spouse (or other family member) of a Canadian citizen or permanent resident leaves an abusive situation and, as a result, does not have an approved sponsorship.

Officers should consider the following factors:

• information indicating there was abuse such as police incident reports, charges; or
• convictions, reports from shelters for abused women, medical reports;
• whether there is a degree of establishment in Canada;
• the hardship that would result if the applicant had to leave Canada;
• the laws, customs and culture in the applicant’s country of origin;
• the support of relatives and friends in the applicant’s home country; and
• whether the applicant has a child in Canada or/and is pregnant.^[48]

21.40 Family violence is one of a number of factors to be considered in a ‘Humanitarian and Compassionate’ application, and the existence of family violence does not give an applicant the automatic right to permanent residence. Factors that must be considered when determining ‘hardship’ include, but are not limited to: establishment in and ties to Canada; the best interests of any child involved; health considerations; consequences of the separation of relatives; and factors in the applicant’s country of origin.^[49]

21.41 Similar to the US, there are no specific evidentiary requirements spelled out in the guidelines or legislation. Rather, the Immigration Guidelines state that the onus is on the applicant to put forth any ‘Humanitarian and Compassionate’ factors that he or she believes are relevant to the case, and ‘to be clear in the submission as to exactly what hardship they would face’.^[50]

21.42 The Immigration Guidelines also recognise that effective decision making in ‘Humanitarian and Compassionate’ cases involves ‘striking a balance between certainty and consistency on the one hand and flexibility to deal with the specific facts of the case, on the other’.^[51] As such, the guidelines specifically note that legislation, policy statements, guidelines, and manuals and handbooks may legitimately influence decision makers in their work.^[52]

United Kingdom

21.43 Persons seeking permanent residence in the UK on the basis of a marriage or civil partnership with a UK sponsor are—in a manner similar to Australia—subjected to a two-year temporary visa period.^[53] Under the Immigration Rules (UK), victims of family violence may seek ‘indefinite leave to remain’ in the UK if, among other things, they are able to produce evidence, as required by the Secretary of State, that ‘the relationship was caused to permanently break down before the end of that period as a result of domestic violence’.^[54] There are no prescriptions on the type of evidence that may be presented.

21.44 Under the Immigration Directorate Instructions (the Instructions), visa decision makers have considerable discretion in assessing whether the relationship has broken down as a result of family violence. The Instructions provide guidance on the relevant types of evidence that an applicant may present and the appropriate weight to be given to each. For example, the Instructions provide that two types of evidence should be sufficient, of themselves, to establish family violence: a relevant court conviction against the sponsor; or full details of a relevant police caution issued against the sponsor.^[55]

21.45 A criminal conviction is considered indisputable evidence that family violence has occurred.^[56] Where the criminal case is pending, the visa decision maker is to consider evidence from both parties, and make a separate assessment of the application.^[57] In relation to police cautions, the visa decision maker is directed to call the relevant police station to confirm whether a caution has been issued. If confirmed, it may provide evidence that the applicant has suffered family violence.^[58]

21.46 In the absence of the above forms of evidence, applicants may provide as many pieces of evidence as possible to support their case. The Instructions set out a non-exhaustive list providing that such evidence can include:

• a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence;
• a letter from a General Medical Council registered family practitioner who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence;
• an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of violence;
• a police report confirming attendance at an incident resulting from domestic violence;
• a letter from a social services department confirming its involvement in connection with domestic violence;
• a letter of support or a report from a domestic violence support organisation.^[59]

21.47 While the Instructions are comprehensive, they are not determinative, since ‘any evidence of domestic violence should be considered by caseworkers when making a decision’.^[60] The Instructions recognise that

caseworkers might find they are required to make the kind of judgment normally undertaken by other professional bodies, they may also find that they have to consider the validity and authenticity of documents provided by the applicant. In view of this, caseworkers should seek advice from their senior case worker and/or other relevant bodies when assessing an application.^[61]

New Zealand

21.48 Under the immigration instructions titled ‘Residence policy for victims of domestic violence’, victims of family violence can apply for permanent residence and have their claims assessed by a departmental officer.^[62] Domestic violence applications are given priority processing, and are determined by immigration officers who have received specialist training in applying the policy.^[63]

21.49 Under the immigration instructions, evidence of domestic violence means:

• a final protection order against the New Zealand citizen or resident partner or intended partner under the Domestic Violence Act 1995 (NZ); or
• a relevant New Zealand conviction of the New Zealand citizen or resident partner or intended partner of a domestic violence offence against the principal applicant or a dependent child of the principal applicant; or
• a complaint of domestic violence against the principal applicant or a dependent child investigated by the New Zealand police, where New Zealand police are satisfied that domestic violence has occurred; or
• a statutory declaration from the applicant stating that domestic violence has occurred and declarations completed by persons competent to make statutory declarations that domestic violence occurred.^[64]

21.50 The Instructions list persons who are ‘competent’ to make a statutory declaration that domestic violence has occurred. Similar to the Australian system, such persons include social workers, doctors, nurses, psychologists, counsellors, and experienced staff members of approved women’s refuges.^[65]

21.51 The Instructionsprovide that immigration officers can verify that the competent persons have made statutory declarations by contacting the relevant professional bodies.^[66]

The Australian system

21.52 In Equality Before the Law, the ALRC recommended that the family violence exception should extend to cases where evidence is obtained from community and welfare workers, medical and legal practitioners, and other suitable third parties.^[67]

21.53 Following the ALRC’s recommendation, the Migration Regulations were amended to allow for non-judicially determined evidence of family violence to include:

• 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;^[68]
• a police record of assault along with two statutory declarations—one from the alleged victim, plus a statutory declaration made by a competent person;^[69] or
• three statutory declarations—a statutory declaration from the alleged victim, plus two statutory declarations by two differently qualified ‘competent persons’.^[70]

21.54 ‘Competent persons’ who may give a statutory declaration for the purpose of a non-judicially determined claim include: medical practitioners; registered psychologists; registered nurses; social workers; family consultants 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 in a position that involves decision-making responsibility for a women’s refuge or a crisis and counselling service that specialises in family violence.^[71]

21.55 Where the alleged victim is a child, a ‘competent person’ can also be an officer of the child welfare or child protection authorities of a state or territory.^[72]

21.56 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.^[73] The statutory declaration of a competent person can be provided on a standard form—called Form 1040—which can be accessed from DIAC’s website.^[74]

21.57 As noted above, if the visa decision maker is not satisfied that the alleged victim has suffered ‘relevant family violence’ on the basis of non-judicially determined evidence, the matter must be referred to a DHS (Centrelink) independent expert for assessment. The visa decision maker must take as correct the opinion of the independent expert.

A new model

21.58 The ALRC recommends a new model for non-judicially determined claims of family violence, in which applicants can—in addition to statutory declarations from competent persons—submit any other evidence in making a valid non-judicially determined claim of family violence. The ALRC also recommends the repeal of reg 1.26 of the Migration Regulations governing the form of statutory declarations. Further, PAM should be amended to reflect that evidence other than from competent persons is relevant and should be given weight as is appropriate in the circumstances of the individual applicant. The current processes for referral to an independent expert would remain available where a visa decision maker is not satisfied on the evidence that an applicant has suffered family violence.

21.59 The net effect of the ALRC’s recommendation is a model that is simple to administer, accessible to victims of family violence, and provides for robust scrutiny of evidence by building upon moves towards specialisation within DIAC.

No prescriptions on types of evidence that can be presented

21.60 Many overseas jurisdictions do not limit the types of evidence that can be submitted in support of a family violence claim. There are a number of reasons why this approach should be adopted in Australia.

21.61 First, accessibility would be improved because an applicant’s claim would no longer hinge on whether or not he or she can access ‘competent persons’. This addresses stakeholder concerns that the limited range of professionals deemed ‘competent’ under the Migration Regulations represents a barrier to access for those who cannot speak English and are socially isolated; who lack financial resources; or who live in remote and regional areas.^[75]

21.62 Secondly, allowing other evidence to be adduced not only creates a wider pool of evidence but, in some instances, better quality evidence. For example, stakeholders suggested that victims from CALD communities are more likely to disclose to bi-lingual workers—who are often the first point of contact for victims in their communities—than to competent persons with whom they may not have an ongoing relationship.^[76] The ALRC’s model reflects the position that there are other people, beyond ‘competent persons’ who are also capable of providing corroborative evidence in support of a person’s family violence claim.

21.63 DIAC acknowledged this, and suggested that one option to reduce dependence on competent persons would be to broaden the non-judicial evidentiary requirements to include ‘medical evidence, police reports, findings from other government agencies or witness statements’.^[77] It was envisaged that ‘such documents could be weighted according to their credibility and relevance’.^[78]

21.64 Stakeholders supported the option to expand the range of competent persons to include: bi lingual workers;^[79] counsellors and case managers in family violence services;^[80] English as a second language (ESL) teacher;^[81] and lawyers.^[82] DIAC suggested that the list of competent persons could be expanded ‘to include marriage counsellors where both parties have attended counselling’.^[83]

21.65 The ALRC considers that expanding the range of competent persons does not go far enough in ensuring flexibility and accessibility for victims of family violence. There are good policy reasons to retain the current list of ‘competent persons’ in its current form. As DIAC noted in its submission, ‘competent persons’ reflect a range of professionals who ‘are expected to have expertise in family violence and who can provide credible and corroborative evidence to the Department’.^[84] Expanding the range of ‘competent persons’ to other groups of people may blur this distinction and reduce the integrity of the competent person regime. It is worth noting that the words ‘competent’ and ‘opinion’ in the Migration Regulations reflect that such persons have some degree of expertise in understanding family violence due to their profession or due to their position in a family-violence related field.

21.66 Increased flexibility could also be achieved by the ALRC’s proposal to amend the Migration Regulations to provide that visa decision makers can contact competent persons to amend minor errors or omissions.^[85] However, the ALRC agrees with DIAC that such an amendment ‘would call into question how far this duty should extend and risks case law developing in a way that would be hard for the Department to administer’.^[86] The ALRC’s recommendations are aimed at improving simplicity of the system, rather than making it more burdensome and complex.

Removing prescriptive requirements

21.67 While there is utility in keeping the list of ‘competent persons’, removing the prescriptive requirements surrounding the statutory declaration of such persons in reg 1.26 is a necessary reform. The repeal of the provision will remove the risk that claims are held invalid based on ‘technicalities’. The rigidity of the statutory declaration requirement was cited by stakeholders to be a substantial barrier to access of the family violence exception.^[87] This general concern was reflected in the submission from Visa Lawyers Australia:

The current legislative scheme places too much emphasis on the applicant to provide evidence in a certain form and too little emphasis on DIAC officers considering the evidence. The scheme seems to have created a checklist style assessment of the evidence, which allows for very little discretion and therefore limits the amount of in-depth consideration DIAC officers are required to perform. We believe the current system provides little room for flexibility, which ultimately limits the effectiveness of the scheme.^[88]

21.68 Removing the prescriptive requirements will also address a number of unintended consequences. For example, stakeholders suggested that it is not uncommon for victims to have to go back to ‘competent persons’ numerous times to have forms amended in order to meet the strict statutory declaration requirements. Repeated visits to competent persons, who are professionals with limited time, have financial implications for victims, many of whom may be suffering from economic abuse.^[89] DIAC noted with concern that

Some clients applying to be granted a visa under the family violence provisions in Division 1.5 of the Regulations appear to be paying significant amounts of money to either migration agents or competent persons to assist with their claims.^[90]

21.69 Reduced visits to ‘competent persons’ may also reduce the number of times a person has to re-disclose traumatic experiences of family violence.

21.70 The ALRC acknowledges that the prescriptive requirements play an important role in ensuring that statutory declaration evidence is robust. The removal of these requirements from the Regulations can be offset by—as discussed below—moves towards specialisation and targeted training and education for decision makers. The ALRC agrees with DIAC that documents could be weighted according to their credibility and relevance. The ALRC recommends that PAM should be amended to reflect that evidence other from competent persons may be relevant, and is entitled to weight as is considered appropriate in the circumstances of the individual concerned. Guidance should reflect the position that all evidence submitted may be relevant, rather than providing another ‘checklist’ or hierarchy of evidence that must be strictly followed.

21.71 For example, while it may be reasonable to assume that a statutory declaration from a ‘competent person’ should be given more weight than a statement from someone who is not a professional, this should not be a blanket rule. Rather, the totality of the evidence should be considered, taking into account the circumstances of the individual. The ALRC notes that visa decision makers, in other areas of migration law, are routinely required to weigh evidence and make a decision in relation to credibility. This mirrors the position taken in the United Kingdom where such guidance is given to decision makers.

Leveraging specialisation

21.72 Expanding the range of available evidence will place an extra burden on decision makers. However, this also provides opportunities to build upon existing moves towards specialisation within DIAC, with benefits to both the Department and victims of family violence. DIAC submitted that one option for reform could include:

creating a dedicated processing centre for family violence processing in which staff can be trained and develop expertise in assessing family violence claims. This may be practical if the family violence provisions are extended to a wider range of visa classes, however, the Department has already seen benefits from centralising processing of all family violence claims made during processing of permanent visa applications in a single team.^[91]

21.73 The ALRC considers that such moves towards specialisation will better equip visa decision makers with the ability to consider family violence evidence, provide some level of consistency and uniformity in the approach to family violence within DIAC, as well as provide a basis for targeted education and training.^[92]

21.74 Specialisation may also bring benefits in terms of quicker resolution of claims, and reduce the need for merits and judicial review. This would help address the concerns of some stakeholders that family violence claims require expedited review processes.^[93]

Retaining independent experts

21.75 Given the way in which the Migration Regulations are currently structured, applicants may have an expectation that where statutory evidence is presented in the required form, the claim should succeed. There was agreement among stakeholders that the referral procedures to an independent expert lacked transparency and do not comply with the basic rules of procedural fairness, particularly because visa decision makers in practice do not give reasons for referring the matter.^[94]

21.76 Stakeholders supported the proposal that visa decision makers should have to give reasons for referral to an independent expert.^[95] Nigel Dobbie submitted that, despite the requirement in the Migration Regulations to reach a state of non-satisfaction,

the delegates do not give, in applications that I have been involved with, reasons for their state of non-satisfaction, despite the required evidence being given … being the provision of the statutory declaration or declarations from competent persons.^[96]

21.77 Other stakeholders expressed similar concerns that applicants were being referred unnecessarily—or as a matter of routine—even in cases where the ‘the statutory declarations have been of sufficiently high quality’.^[97] The ANU Migration Law Program expressed a view that the independent expert process

remains an area open to policy manipulation and anecdotal evidence supports trends in referral rates from DIAC officers on particular case demographics. For example it is standard practice for DIAC officers to refer cases where men are the victim of family violence to an independent expert, regardless of the evidence or competent persons documentation provided.^[98]

21.78 In contrast, DIAC and the MRT argued that there is no need to give reasons for referral, since referral is not the final decision, but rather a step in the process.^[99] DIAC stressed that

a referral to an independent expert is a process of evidence collection that forms the basis of a decision … To require decision makers to explain and seek comment on both a decision to refer and the outcomes of that referral would be cumbersome and potentially result in duplicate processes.^[100]

21.79 The ALRC considers that the question of whether evidence is provided is the manner required should be separated from whether that evidence can satisfy the visa decision maker that family violence has occurred. Visa decision makers are not experts in family violence, and that requiring visa decision makers to give reasons for referral —where this is not the final step in the decision making process—may be cumbersome and result in ‘duplicate’ processes, rather than a simpler system.

Consistency of independent expert assessments

21.80 There was general concern expressed among stakeholders that independent expert assessments lacked consistency and transparency. Stakeholders pointed to examples where the independent expert:

• had not applied the correct definition of relevant family violence;^[101]
• conducted investigations on specific matters rather than confining their assessment to whether or not the victim had suffered family violence;^[102] and
• held views and attitudes that are contrary to the well-being and protection of victims of family violence.^[103]

21.81 RAILS submitted that, in its experience ‘the quality of the process and assessment by the independent expert varies greatly from person to person’ with ‘very little consistency in their approach’.^[104] The Australian Domestic and Family Violence Clearinghouse (ADFVC) was concerned that ‘there is no clear criteria that must be met by independent experts with respect to training, experience and supervision’.^[105]

21.82 The concerns about inconsistency in decision making may be alleviated as a result of a number of recommendations in this Report. The adoption of a uniform definition of family violence across the different legislative schemes and targeted training in relation to the nature, features and dynamics of family violence should result in more consistent decision-making by ‘independent experts’. As noted in Chapter 3, because the definition of ‘relevant family violence’ is different to the definition of ‘family violence’, this results in some confusion among independent experts when assessing family violence claims.^[106] In Chapter 4, the ALRC makes recommendations that Centrelink social workers (who are independent experts) should receive training and education, including in relation to the nature, features and dynamics of family violence.^[107]

21.83 Further, the expansion of the range of evidence that can be considered by the visa decision maker should also translate to better evidence before an ‘independent expert’ when a matter is referred. This should have positive impact on the ability to independent experts to make good decisions.

21.84 The ALRC also notes that the creation of a statutory mechanism for merits review of independent expert decisions, while preferable, has the potential to create a burdensome and complex system that is not easily administered. This would go against the ALRC’s intention to create a simpler system.

Independent experts: merits review and procedural fairness

21.85 In the Discussion Paper, the ALRC proposed that the Migration Regulations be amended to require independent experts to give applicants statements of reasons for their decisions, and to provide for review of independent expert decisions.^[108]

21.86 A number of stakeholders supported these proposals. RAILS submitted that the ability to have an independent expert review was essential because

the independent expert holds enormous power … yet the process undertaken by the independent expert is not subject to any scrutiny, they are not required to provide reasons for their decisions, and there is no process for seeking a review of their assessment, other than the expensive and limited provision for judicial review.^[109]

21.87 DIAC did not consider statutory amendments to provide for merits review of independent expert decisions necessary, given that applicants have a right to appeal to the MRT. Current practice is that ‘a summary of the decision of the independent expert’s assessment is provided to the applicant for comment’ before a decision is made on the case.^[110] If new information is provided by an applicant, the decision maker can refer the matter back to the independent expert for review of the original decision. However, review is not a right, but is at the discretion of the visa decision maker.

21.88 DIAC submitted that the full record of the independent expert’s opinion is not given because, in some circumstances, there is information that cannot be passed to the applicant because it has been provided confidentially to the independent expert or to DIAC by a third party. In such circumstances, ‘it may be difficult to provide even the gist of the information without revealing the source’.^[111] However, it was noted that, typically

The reasons provided to the applicant do provide an indication of the information which has shaped the independent expert’s opinion and the way in which the different pieces of information has been weighed.^[112]

21.89 The scope of the duty of procedural fairness owed by independent experts and visa decision makers to an applicant has been subject to recent judicial consideration.

21.90 In Maman v Minister for Immigration and Citizenship, Raphael FM found that the independent expert owed procedural fairness obligations to an applicant to disclose the contents of a letter written to the independent expert from the sponsor that was adverse the applicant’s claims.^[113] The Federal Magistrate Court also found that the MRT, when assessing whether an independent expert decision was properly made, must consider whether procedural fairness obligations were afforded to the applicant by the independent expert, and where it is found not so, refer such matter back to the independent expert to avoid jurisdictional error.^[114] In its submission, DIAC expressed an intention to appeal this decision to ‘clarify the scope of the duty’, but would not challenge the conclusion that a ‘duty of procedural fairness exists’.^[115]

21.91 However, in Al-Monami v Minister for Immigration and Citizenship, the court considered that, due to the procedural fairness obligations owed to an applicant by the MRT, this ‘relieves an independent expert from following a like procedure for the purposes of preparing the report’.^[116] Driver FM agreed with Raphael FM that there are circumstances in which the MRT is obliged to refer back to an independent expert matters raised by an applicant in response to any summary of the independent expert’s findings given to the applicant pursuant to s 359A of the Migration Act. Driver FM indicated that such instances may include circumstances where:

a) the report is based on information that the applicant was not shown by the independent expert or had an opportunity to comment upon to the independent expert and, if he had had that opportunity, the report might be different; or

b) the matters raised by the applicant in responding to the invitation to comment about the report cast doubt upon the validly of the report such that the Tribunal could not be satisfied that it was bound by the report.^[117]

21.92 DIAC submitted that it was ‘open to suggestions for improving the decision summary to ensure that family violence applicants gain a better understanding of how their case was assessed and decided, while protecting confidential information, where necessary’.^[118] The ALRC welcomes this, and notes that DIAC may wish to work with DHS to consider how this could be achieved.

21.93 Given the ongoing judicial consideration around this issue, and DIAC’s intention to challenge the decision in Maman to clarify the scope of any procedural fairness obligations,^[119] the ALRC makes no recommendations in relation to the procedural fairness obligations of the independent expert. However, the ALRC considers it vitally important that victims of family violence are afforded procedural fairness by independent experts by the maximum extent possible, including being given reasons for the decisions. The ALRC notes that any such clarification by the courts should be reflected in PAM to the extent that it affects visa decision makers.

Independent expert panel

21.94 An alternative for reform of the non-judicially determined claim of family violence is the establishment of an independent expert panel. While the ALRC flagged this as the preferred option in the Discussion Paper,^[120] stakeholders were cautious in supporting such a reform without further consideration of a number of issues.

21.95 The ALRC makes no recommendations for the establishment of an independent expert panel; however, the ALRC considers that the idea has some merit. The section below canvasses the issues to be considered if an independent expert panel is to be pursued.

Parallels with the health assessment regime

21.96 In the Discussion Paper, the ALRC envisaged that an independent expert panel scheme could operate in a manner similar to the arrangements in place for health assessments required for all visas.^[121]

21.97 All permanent visa applicants are required to meet health requirements.^[122] Applicants are asked to undergo a medical examination, an X-ray, and a HIV/AIDS test (if 15 years of age or older). The Minister must—subject to some exceptions—seek the opinion of a Medical Officer of the Commonwealth (MOC) as to whether the health requirement has been met.^[123] A MOC is a medical practitioner who has been appointed in writing by the Minister for the purposes of the Migration Regulations.^[124] Where the matter is referred to an MOC for his or her opinion, the Minister must take as correct an opinion for the purposes of deciding whether the person meets a requirement or satisfies a criterion.^[125] In some cases, the health requirement may be waived, but cannot be waived where the applicant is assessed as representing a risk to public health or safety in Australia.

21.98 Depending on the type of visa application lodged, the applicant may have review rights. In such circumstances, the applicant is able to submit further medical evidence for review by to a Review MOC (RMOC).^[126] The RMOC is able to:

• set aside and refuse the decision and substitute a new decision; or
• affirm the Department’s original decision; or
• refer the case back to the Department for further consideration.^[127]

21.99 Therefore, under the current framework, the role of the visa decision maker is limited to assessing whether or not the MOC or RMOC has applied the legislation correctly, and the visa decision maker takes no part in assessing the health of the applicant.

Improved consistency, simplicity and quality of decision making

21.100 Stakeholders saw substantial benefits in replacing the competent person regime with an independent expert panel scheme similar to that used for health assessments, including: greater accessibility for victims; quality and consistent decision making by experts; improved transparency and accountability; and opportunities for targeted training and education.^[128] For example, the Law Institute of Victoria submitted:

Repeal of the competent person provisions would provide an opportunity for quality control, to ensure that only reputable professionals in the area of family violence make assessments about whether family violence has occurred. An improved independent expert scheme must, however, be more transparent and accountable than under the current provisions.^[129]

21.101 DIAC submitted that an independent expert scheme could, if well designed, provide for simplicity in evidentiary requirements, and consistency in decision making. DIAC agreed that

there is scope to undertake a review of the current arrangements in relation to the assessment of non-judicially determined claims. The model of health assessment noted in the Discussion Paper may be one way of simplifying the evidentiary requirements for non-judicial claims of family violence while maintaining the rigour in the decision making process.^[130]

Avoiding pitfalls of the medical assessment regime

21.102 The Townsville Community and Legal Centre (TCLC) provided cautious support the panel scheme so long as avoided ‘the pitfalls of the MOC regime’.^[131] In its view, ‘there is too much to be critical of the MOC regime’ from the view of applicants.^[132] The TCLC pointed to the Inquiry into Migration Treatment of Disability, conducted the Joint Committee on Migration.^[133] The Committee catalogued a number of criticisms of the current MOC system, including that:

• MOC decisions tend to be inconsistent and do not apply guidelines sufficiently and stringently;^[134]
• MOCs are required to weigh considerations beyond their expertise such as a disease’s ‘significant cost to the Australian community’;^[135] and
• MOC decisions are often difficult to review and lack transparency.^[136]

21.103 In order to improve the transparency and consistency of decision making, the Committee recommended that DIAC make available the ‘Notes for Guidance’ used by MOCs on its website and provide each applicant with a breakdown of their assessed costs associated with diseases or conditions under the Health Requirement.^[137]

A well-designed system

21.104 Stakeholders stressed the importance of having a well-designed system, and noted that a number of important matters would need to be resolved, including: who should comprise the panel; responsibility for its administration; and what assurances could be provided that it would be comprised of people with extensive experience in family violence.^[138] RAILS submitted that ‘the timeliness of the assessments by the Independent Panel is a critical issue’,^[139] as time delays and having to recall traumatic experiences with detrimental impact to a person’s health and well-being. The Migration Institute of Australia submitted that ‘the composition of any such panel would be fundamental of its success’.^[140] DIAC suggested that a national organisation ‘which employs appropriate professionals could conduct interviews nationally and provide reports to visa decision makers’.^[141]

21.105 Another possibility is for the Australian Government to appoint professionals to the panel based on their experience and expertise in dealing with family violence claims.

21.106 In light of the above concerns, the IARC submitted that ‘more detail and analysis is required before the Commission makes its recommendation’.^[142] The ALRC that an independent expert panel would need to be appropriately designed to avoid the pitfalls of the MOC regime. In particular, there should be a number of desirable outcomes of an independent expert panel.

21.107 First, an independent expert panel scheme should simplify the procedural requirements and increase accessibility to visa applicants who experience family violence. An expert panel scheme would enable the removal of existing strict procedural requirements and allow victims to present a wide range of evidence to the decision makers, including evidence from those persons to whom a victim may more readily disclose family violence. This outcome was supported by stakeholders and mirrors the position taken in the UK and other overseas jurisdictions where, in the absence of judicially determined evidence, applicants are encouraged to present as many pieces of evidence as possible to support their claim. It also has the benefit of streamlining the system, by reducing the number of times a person may have to re-tell their often traumatic experiences of family violence.

21.108 Secondly, an independent expert panel scheme should be underpinned by targeted training and education in relation to the nature, features and dynamics of family violence for those experts appointed to the panel.^[143] This would provide a measure of assurance to victims that their claims will be assessed by professionals with specialist understanding of family violence. This would arguably lead to more consistent decision making and, ultimately, help to protect the safety of victims of family violence.

21.109 Thirdly, the expert panel scheme should provide for transparency and appropriate review mechanisms. The Migration Regulations could provide that a decision maker must take as correct an opinion of the independent panel assessor, as is the case with health assessments. However, in review applications, where there is new evidence or where significant time has elapsed, a review opinion from a different panel member could be sought. Reasons for decisions should be provided to the applicant.

21.110 Lastly, access to an independent panel scheme should be free for applicants seeking to access the family violence provisions, given that many victims lack financial resources. Such a scheme would have financial implications. However, these may be offset in the long run if consistent decision making leads to lower rates of merits or judicial review. Further, quicker access to the family violence provisions for genuine victims will improve their safety and reduce dependence on social and other services that would otherwise be needed.