Secondary visa applicants for protection visas

22.43 The ALRC recommends that the instruction Ministerial Powers— Ministers Guidelines—s 48A cases and requests for intervention under s 48B of the Act be amended to take into account family violence claims. This recommendation, combined with the issuance of a Ministerial Direction under s 499 of the Migration Act in relation to family violence in refugee status determinations may negate the need for a second protection visa application to be made.

The interaction between s 48A and 48B

22.44 In the Discussion Paper, the ALRC highlighted that those secondary visa applicants who are subjected to family violence once in Australia, are not able to apply for another protection visa in their own right, due to a bar under s 48A of the Migration Act.[53] The Minister for Immigration and Citizenship has discretionary and non-compellable power under s 48B to waive the s 48A bar, taking into account the public interest.

22.45 An issue arises as to whether the bar under s 48A unduly impacts upon victims of family violence who may otherwise have a legitimate claim for refugee protection. The Refugee Advice and Casework Service (RACS) argued that while there were good policy reasons to give effect to s 48A—to prevent abuse by people in the same family unit who would otherwise take turns to seek a Protection Visa as a primary visa applicant[54]—the legislature may not have considered the practical difficulties for victims of family violence under these circumstances.[55]

22.46 DIAC submitted that s 48B is not intended to give individuals affected by circumstances not related to any of the five Refugees Convention grounds the opportunity to ‘lodge another Protection visa application’.[56] DIAC noted that because family violence is not one of the five Refugees Convention grounds it is not addressed by the instruction, Ministerial Powers— Ministers Guidelines—s 48A cases and requests for intervention under s 48B of the Act.[57]

Is there a need to amend s 48A?

22.47 A number of stakeholders called for amendment to s 48A to allow secondary visa applicants who are the victims of family violence to be allowed to apply for a protection visa in their own right.[58] Some argued that a secondary visa applicant who separates from her husband for family violence reasons ‘may be at risk of harm upon return because of their husband’s activities but may not be able to speak to that risk without their husband as a primary applicant’, and thus may feel compelled to remain in the violent relationship.[59]

22.48 Stakeholders expressed concern that Ministerial Intervention under s 48B can result in significant delays, and in some instances applicants face ‘great difficulty in convincing DIAC that it is an appropriate case for the Minister to invoke s 48B’.[60] It was argued that there is a ‘substantial backlog’ of applications contributing to delays that may adversely affect a victim’s ‘psychological well-being’.[61] For example, the RACS submitted that the Minister’s power under s 48B is rarely exercised, such that

when family violence victims seek advice on refugee law in order to make an informed decision as to whether to leave the violent relationship ‘the uncertainty in her ability to re-apply for a Protection visa’ would seem to encourage her to remain in a violent relationship.[62]

22.49 Further concerns were raised that a system that relies on the discretionary power of the Minister ‘can result in inconsistent decision making and lacks the safeguards that due legal processes can provide’.[63] The Refugee and Immigration Legal Centre (RILC) expressed concern that a substantial number of s 48B requests were finalised by Departmental staff, leaving ‘potentially large gaps in protection’, because ‘DIAC is refusing a large number of applications before they reach the Minister’.[64]

22.50 RACS called for s 48A to be amended to allow victims of family violence to apply for a further protection visa under ‘prescribed circumstances’—being situations where a person would be caught by s 48A but who have since left the violent relationship due to family violence.[65] The RILC suggested that, if the ability to make a further visa application was legislated,

the decision about whether ‘jurisdiction’ triggering a further application could be made by a decision maker who is trained in refugee decision making, and who could even follow on to consider the refugee claim. This would allow for transparent decision-making, the amassment of precedent decisions on further visa applications, and more efficient processing.[66]

22.51 The ALRC recognises the legitimate policy aim of the s 48A bar is to ‘prevent members of families pursuing claims for protection one after the other—dragging on resolution of their status for years’.[67] Legislative amendments that would exempt secondary applicants, who are victims of family violence, from the bar to making a further protection visa application would result in a two tiered system. That is, legitimate questions may be raised about why secondary applicants would be able to apply for a further protection visa based on family violence claims, while others must attempt to access Ministerial Intervention under s 48B. The ALRC makes no recommendations to amend s 48A.

Amending guidelines

22.52 However, the ALRC considers that there is scope for improvement of DIAC’s Guidelines. The ALRC is particularly concerned that family violence is not mentioned in the guidelines on s 48B ministerial intervention because ‘family violence is not one of the five Convention grounds’.

22.53 There may well be instances—as stakeholders have argued—where a secondary visa applicant’s experiences of family violence in Australia may give rise to an independent claim of family violence under the Refugees Convention. For example, a victim may face harm from the primary visa applicant’s family if returned to the country of origin for having bought shame to the family name by ‘their unwillingness to submit’ to the primary visa applicant.[68] As noted above, if there is a real chance that a state withdraws protection to the secondary applicant on a Convention ground, this could give rise to a well founded fear of persecution.

22.54 The ALRC also considers that the safety of victims of family violence can be improved by measures that would support a secondary applicant making an independent protection visa claim based on family violence. There is nothing to prevent a secondary applicant from lodging a further protection visa application during primary consideration of the current (undecided) protection visa application.[69] The RILC highlighted that it was fundamental to ensure that claims are brought out during the protection visa process, since ‘a woman who is part of a family unit is often automatically considered to be the dependent of a principal male applicant’, and may ‘not be aware that she has an independent claim for protection’.[70] It was argued that

There should at least be the possibility of separate interviews for female family members … Better management and support throughout the process may even prevent the need for recourse to a second protection visa application.[71]

22.55 The barriers to disclosure of family violence—noted in Chapter 1—may also lead secondary visa applicants not to disclose family violence when an application for a protection visa is made. If a Ministerial Direction is issued under s 499 of the Migration Act in relation to family violence in refugee status assessments—as the ALRC recommends—it could incorporate material in the Gender Guidelines to direct decision makers to consider any claims a secondary visa applicant may have in relation to family violence. For example, the ALRC notes that DIAC’s Gender Guidelines provide, usefully that in relation to women

There may be the shame of disclosing certain experiences such as having being raped and fears of how they might be perceived by an interpreter or decision maker. There may also be social and cultural barriers to lodging their applications or pursuing their own claims. In some cultures, it might be culturally inappropriate for women to be outspoken or to come forward with information.

The interviewing officer should ensure by careful questioning that all members of the family unit have been declared, and that all vital information pertinent to the application has been elicited.

The possibility of claims should be explored in respect of each family member to ensure a full picture is obtained.[72]

22.56 An amendment to the instruction on the Minister’s power under s 48B, along with education and training around family violence issues and a ministerial direction under s 499 of the Migration Act, will improve practices and support secondary visa applicants in making independent claims for protection before the s 48A bar is triggered.[73]

Recommendation 22–3 The Department of Immigration and Citizenship should amend its instruction Ministerial Powers—Minister’s Guidelines—s 48A cases and requests for intervention under s 48B in the Procedures Advice Manual 3 to refer to secondary visa applicants who are the victims of family violence.

[53] Migration Act 1958 (Cth) s 48A(1)(a), (b). Section 48A only applies where an application for a protection visa has been made, and the grant of the visa has been refused (whether or not the application has been finally determined). A decision is finally determined when either: a decision that has been made with respect to the application, is no longer subject to merits review; or a decision made with respect to application was subject to review but the period in which the review could be instituted has ended without a review having been instituted as prescribed.

[54] See also Migration Legislation Amendment Bill (No 6) 2001 (Cth).

[55] Refugee Advice & Casework Service Inc, Submission CFV 111.

[56] DIAC, Submission CFV 121.

[57] Ibid.

[58] RAILS, Submission CFV 160; Law Institute of Victoria, Submission CFV 157; Migration Institute of Australia, Submission CFV 148; RILC, Submission CFV 129; Refugee Advice & Casework Service Inc, Submission CFV 111; WEAVE, Submission CFV 106.

[59] Joint submission from Domestic Violence Victoria and others, Submission CFV 33. See also RAILS, Submission CFV 160; Law Institute of Victoria, Submission CFV 157.

[60] RAILS, Submission CFV 160.

[61] RILC, Submission CFV 129.

[62] Refugee Advice & Casework Service Inc, Submission CFV 111.

[63] RILC, Submission CFV 129.

[64] The RILC highlighted that for the year 2010—2011, there was a total of 714 requests under s 48B. DIAC finalised 842 applications and 54 were finalised by the Minister.

[65] Refugee Advice & Casework Service Inc, Submission CFV 111.

[66] RILC, Submission CFV 129.

[67] Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 (Cth).

[68] See eg, RAILS, Submission CFV 160; IARC, Submission CFV 32.

[69] The PAM 3 Guidelines suggest that in such an instance, ‘if the requirements in Regulations Schedule 1 are met, the further application is valid and should be considered concurrently with the existing application. The decision record provides for making a decision in respect of multiple applications.

[70] RILC, Submission CFV 129.

[71] Ibid.

[72] DIAC, PAM 3: Gender Guidelines, Barriers Facing Female Applicants.

[73] Rec 20–5.