EXPLANATORY STATEMENT

Migration Regulations 1994

1. This Notice is made under regulations 1.17 and 1.21 of the Migration Regulations 1994 (‘the Regulations’).

2.                  Division 1.5 (Special provisions relating to domestic violence) was introduced into the Regulations in response to community concerns that, under two stage partner visa processing arrangements, some visa holders might feel compelled to remain in abusive relationships rather than end the relationship and be required to leave Australia. 

3.                  The provisions allow the holders of certain temporary visas to have their application for a permanent visa decided even though the partner relationship, that was the basis of their eligibility for a visa, has ceased and the usual waiting period has not elapsed.  They are constructed so that the process is not unduly lengthy or intrusive.

4.                  Some applicants have sought to exploit these provisions and thereby gain residence on fraudulent grounds. To ensure that only genuine claimants can benefit from the provisions, amendments to Division 1.5, commencing 1 July 2005, enable the Minister (or delegated decision makers) to refer doubtful non-judicially determined claims of domestic violence to an independent service provider with expertise in assessing such claims (an “independent expert”). By eliminating non-genuine claims of domestic violence, the Government will be better able to serve genuine victims in need of a speedy resolution of their immigration status.

5.                  The current changes will only affect people submitting evidence of domestic violence which has not been tested by a court, and where sound reasons exist for doubting the claim.  This represents a minority of claimants.  Most people accessing the provisions will be assessed as genuine without referral, and will therefore not be affected by these changes. 

6.                  The term “non-judicially determined claims of domestic violence” is defined in subregulation 1.23(1A) of the Regulations and is limited to statutory declarations, police records of assault and joint undertakings made before a court.

7.                  Subregulation 1.21(1) of the Regulations provides that an independent expert means a person who is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence and is employed by, or contracted to provide services to, an organisation that is specified in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of domestic violence.

8.                  The Instrument operates to provide that Centrelink is an organisation for the purposes of the definition of “independent experts” in subregulation 1.21(1) of the Regulations. In conjunction with the operation of subregulation 1.21(1), the Instrument provides that only suitably qualified Centrelink staff can provide an opinion as to whether the alleged victim has suffered relevant domestic violence (as defined in paragraph 1.23(2)(b) of the Regulations).  These referrals are permitted by paragraph 1.23(1B)(b) of the Regulations.  The Minister is required by subregulation 1.23(1C) to take the opinion of an independent expert to be correct.

9.                  Consultation was undertaken with Centrelink before the Instrument was made.

10.               The Instrument commences on registration with the Federal Register of Legislative Instruments.