21.1 This chapter considers the evidentiary requirements for making a family violence exception claim under the Migration Regulations 1994 (Cth). This was an area identified by stakeholders as being in need of substantial reform.

21.2 As noted in Chapter 20, a key policy tension in this area is the need to ensure the accessibility of the family violence exception while maintaining the integrity of the visa system. If evidentiary requirements are too strict and rigid, it may prevent access to the family violence exception for genuine victims. On the other hand, if evidentiary requirements are not sufficiently robust, there is scope for fraudulent claims or other abuse of the family violence exception for migration outcomes.[1]

21.3 The ALRC recommends a new model for dealing with non-judicially determined claims of family violence. The key recommendation is for the Migration Regulations to be amended to provide that any evidence—in addition or as an alternative to a statutory declaration from ‘competent persons’—can validly support a non-judicially determined claim of family violence. In addition, the ALRC recommends that the prescriptive requirements governing statutory declarations from competent persons in reg 1.26 be repealed. This will allow applicants to bring a wide range of evidence in support of their family violence claim. Where the visa decision maker is not satisfied that an applicant has suffered family violence, referral can be made to an independent expert within the Department of Human Services (Centrelink).

21.4 Such a system will increase accessibility and flexibility to victims of family violence while maintaining the need for robust scrutiny of evidence. In particular, integrity measures are reinforced through building on moves towards specialisation within DIAC and retaining the mechanism for referral to an independent expert.

21.5 The area of judicially determined claims of family violence was less problematic. The ALRC recommends, however, that subsections in reg 1.23 of the Migration Regulations that require that the violence, or part of the violence, must have occurred while the relationship was in existence, be repealed.

[1] See Australian Law Reform Commission, Family Violence and Commonwealth Laws, Discussion Paper 76 (2011), 700–703 for a more detailed discussion of the tension, and history of the family violence exception.