Visa schemes not covered

37. As noted above, the family violence exception can be invoked by applicants for partner and certain skilled stream (business) visas. The exceptions do not apply to the following visa categories: Temporary Skilled Visa (Subclass 457); New Zealand Citizen Family Relationship (Temporary) Visa (Subclass 461); student visas; tourist visas; and other family visas. This suggests that the exception is not intended to cover temporary visas or those where the criteria for a grant of a visa does not include a requirement for a ‘genuine and continuing’ relationship between the visa applicant and another person.

38. The ALRC is interested in comment about whether the family violence exception should be expanded to apply to other visa categories beyond partner and business classes.

Question 3 Should the application of the family violence exception under the Migration Regulations 1994 (Cth) be expanded to cover other visa categories?

Prospective marriage visas

39. In the report, Equality Before the Law: Justice for Women, ALRC Report 69 (1994), (Equality Before the Law) the ALRC expressed concerns in relation to the position of women entering Australia on a Prospective Marriage Visa (Subclass 300).[38] As noted above, the prospective marriage visa holder must marry his or her Australian sponsor within the visa period (nine months), before applying for a temporary or permanent spouse visa.[39]

40. At the time of applying for a temporary Partner Visa (Subclass 820), applicants who are holders (or previous holders) of a Prospective Marriage Visa (Subclass 300) can invoke the family violence exception. However, the family violence exception applies only if: the person has married his or her Australian sponsor; the marriage has broken down; and there has been family violence committed against the visa applicant, a member of the family unit of the applicant or a dependent child of the couple by the Australian partner.[40]

41. In effect, if the marriage never takes place, for whatever reason, the non-citizen who is a victim of family violence is precluded from accessing the family violence exception. In Equality Before the Law, the ALRC highlighted stakeholder concerns that ‘the provisions treat women as a commodity in that if the relationship does not work out, the woman can be sent back to her country of origin’.[41] Similar concerns have been expressed by a number of commentators.[42] For example, Edwin Odhiambo-Abuya argued that:

Despite the reality of domestic violence occurring in such relationships ... the law fails to recognise there is little or no difference between domestic violence inside or outside the marriage for immigrant victims. It is easy to imagine that both married and unmarried victims have similar challenges to getting citizenship. Based on this assumption, it would be proper to amend this part of the legislation to bring it to terms with reality. Effectively, this will make fiancées eligible to benefit from domestic violence concessions currently offered to their married counterparts under immigration law.[43]

42. The requirement for a Prospective Marriage Visa (Subclass 300) holder to have married their sponsor before accessing the family violence exception was reinforced by legislative amendments affecting visa applications made on or after 9 September 2009, which require that the family violence ‘must have occurred while the married relationship or de facto relationship was in existence between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator’.[44]

43. The Equality Before the Law, the ALRC recommended that the family violence exception should apply to partners who have been sponsored on a Prospective Marriage Visa (Subclass 300), whether the breakdown occurred at any time before the marriage, or after marriage, but before an application for permanent residence has been lodged.[45]

Question 4 Should the Migration Regulations 1994 (Cth) be amended to allow a former or current Prospective Marriage (Subclass 300) visa holder to access the family violence exception when applying for a temporary partner visa in circumstances where he or she has not married the Australian sponsor?

[38] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), 224.

[39] At the time of Equality Before the Law, the time period within which the parties were required to marry was 6 months.

[40] See Migration Regulations 1994 (Cth) sch 2 cl 820.211(8)–(9).

[41] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), 224.

[42] See M Crock, ‘Women and Migration Law’ in P Easteal (ed) Women and the Law (2010) 328; P Easteal, ‘Broken Promises: Violence Against Immigrant Women in the Home’ (1996) 21(2) Alternative Law Journal 53; E Odhiambo-Abuya, ‘The Pain of Love: Spousal Immigration and Domestic Violence in Australia—A Regime in Chaos?’ (2003) 12 Pacific Rim Law & Policy Journal 673.

[43] E Odhiambo-Abuya, ‘The Pain of Love: Spousal Immigration and Domestic Violence in Australia—A Regime in Chaos?’ (2003) 12 Pacific Rim Law & Policy Journal 673, 706.

[44] See Migration Amendment Regulations (No 12) 2009 (Cth). The requirement is expressed in regs 1.23(3),(5),(7), (12), (14).

[45] Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), Rec 10–4.