The National Advocacy Group on Women on Temporary Visas Experiencing Violence (a collaboration of over fifty state and national peak bodies, service providers and other organisations) has recently published a number of proposed reforms to visas for women facing domestic violence based on their 2018 report. This report highlighted the existence of a national crisis, requiring immediate law and policy reform. The group argues that women and their children have the right to be safe from all forms of violence in Australia, regardless of their visa status.
Expanding protection
The family violence provisions of the Migration Regulations 1994 (Cth) of the Migration Act 1958 operate to allow people on certain visa pathways (mostly Partner visa applicants) to continue with their application for permanent residency in Australia after the breakdown of their relationship if they have experienced family violence by their intimate partner.
However, these provisions are 'only available to a very narrow cohort of victims/survivors of domestic, family and sexual violence'. The National Advocacy Group on Women on Temporary Visas Experiencing Violence has stated that new legislation will 'further restrict access to these provisions unless appropriate exemptions are included'.
The advocacy group has specifically recommended that that access to the provisions expand to include the following applicant groups who are experiencing family, domestic and sexual violence:
- Prospective Marriage (Sc 300) Visa holders who do not marry their sponsor prior to relationship breakdown;
- Onshore permanent visa applicants who have applied as a secondary (dependent) applicant;
- Applicants who have applied for a family visa onshore.
Defining 'violence'
For the purpose of the family violence provisions, only violence perpetrated by an intimate/sponsoring partner will be recognised by the Department. So, violence perpetrated by family members other than a sponsoring partner will not be recognised as being 'family violence'. This narrow definition 'fails to recognise that living with extended family is the norm for certain cultural groups and it is often a partner's family who are perpetrating violence against victims'.
The advocacy group recommends that this definition expand to include any abuse and violence that is perpetrated by a partner, a partner's relative or a victim's relative whether in Australia or overseas.
Assessing 'genuine relationship'
As it stands, the Department of Home Affairs will first determine whether a relationship is 'genuine' then assess whether domestic, family or sexual violence exists. The National Advocacy Group on Women on Temporary Visas Experiencing Violence has observed that this practice 'does not account for the complex dynamics of domestic, family and sexual violence'. Domestic violence invariably affects the nature of the relationship and types of evidence available to establish that a relationship is 'genuine'. This is especially so when financial and social abuse is tied into the domestic violence. The consequence of such practice is that women seeking to use the family violence provisions may be unable to get over the first hurdle of establishing a genuine relationship.
The group has recommended that Departmental practice be reversed so that determination of whether there is domestic, family and sexual violence occurs prior to assessing for a 'genuine relationship'. Further, the Department must ensure that the required evidence can be reasonably provided in the context of a relationship with an abusive partner.
Leaving is nearly impossible
In their present form, the family violence provisions can only be used once an abusive relationship has ceased. The advocacy group has stated that this requirement is extremely problematic. Ending an abusive relationship can be dangerous and may lead to an escalation in violence. Without a proper support framework, leaving the family home is often impossible. This current system disincentivises victims/survivors reaching out for help fearing that they will be left without support and at risk of a visa cancellation or refusal if they separate from a perpetrator.
The advocacy group proposes that the family violence provisions be accessible even if the relationship has not yet ceased.
Ensuring security for victims/survivors
Another important issue identified by the advocacy group is the security and privacy issues created by the move to online visa applications and online communication. This has made it 'easier for an abusive or controlling [sponsor] to control their partner's entire visa process and all correspondence'. The online process gives 'a perpetrator access to all private details and puts a victim/survivor at risk of further violence'. Further, even when a new lawyer or migration agent is appointed via lodgment of a new 956 form, the previous agent (usually engaged by the perpetrator) is not automatically removed from the online account.
In order to safeguard visa applicants' privacy, it is recommended that visa applicants receive advice that they have an application in their name and is aware that they can update their contact details and authorized recipient. The Department of Home Affairs should also automatically remove access and communication permissions received by a previous agent as well as delinking any connected accounts.
A new temporary visa for victims/survivors of domestic, family and sexual violence
One of the most compelling proposals for reform made by the National Advocacy Group on Women on Temporary Visas Experiencing Violence is the introduction of a new subclass of temporary visa, specifically to protect victims/survivors of domestic violence.
The family violence provisions currently only operate to protect permanent visa applicants who have experienced domestic violence. As such, temporary visa applicants and/or holders have little options available to them.
In theory, this temporary visa would have a duration of 3-years. While it would not entitle a holder to a permanent visa, it would allow them to work, study, access social security and apply for a further visa for which they are eligible.
This visa would be designed to capture anyone who:
- Have their temporary visa cancelled as a result of the actions of the perpetrator; or
- Are unable to comply with the conditions of their temporary visa due to the domestic abuse; or
- Are in Australia and hold a temporary visa, but cease to be a family member of the perpetrator; or
- Are offshore because they were threatened, coerced or deceived into leaving Australia by the perpetrator and/or their family; or
- Have ongoing family court matters related to children.
Empowering victims/survivors
Visa applicants who are victims/survivors of domestic abuse should be supported to leave abusive partners without fearing that doing so will adversely affect their visa process. Supporting decisions which 'promote their safety, well-being and recovery' should be a priority, rather than penalising applicants for leaving their sponsors.
The recommendations made by National Advocacy Group on Women on Temporary Visas Experiencing Violence go a long way to remedying a number of the current deficits in the operation of the family violence provisions. Whether these will be acknowledged and implemented by the Department of Home Affairs is another question.
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