EXPLANATORY STATEMENT
Migration Regulations 1994
- 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.
Overview
The Migration Regulations 1994 were amended by the Notice F2005L01620 to introduce Division 1.5, which addresses the problem of visa holders potentially remaining in abusive relationships due to the two-stage partner visa process. This amendment allows certain temporary visa holders to have their application for a permanent visa considered even if the partner relationship has ended before the usual waiting period, aiming to provide a swift resolution without being overly intrusive. However, recognising that some applicants might exploit these provisions fraudulently, the amendments enable the Minister to refer non-judicially determined claims of domestic violence to independent experts for assessment. This ensures that only genuine victims benefit from the provisions, allowing the government to better support those in need of a speedy resolution of their immigration status. The amendments only affect a minority of claimants, where there are sound reasons to doubt the authenticity of the claims.
Scope and Application
The Migration Regulations 1994, as amended by the Notice, are designed to address instances of domestic violence among temporary visa holders in Australia, specifically targeting those who may be compelled to stay in abusive relationships due to the usual waiting periods associated with visa applications. These provisions allow for the expedited processing of permanent visa applications for certain temporary visa holders whose partner relationships have ended, provided they can substantiate their claims of domestic violence. This legislation applies to individuals who have not had their claims of domestic violence tested by a court and where there are reasonable grounds to doubt the validity of their claims. The changes, effective from 1 July 2005, ensure that doubtful non-judicially determined claims of domestic violence can be referred to an independent expert for assessment. This expert, such as a suitably qualified Centrelink staff member, will evaluate whether the alleged victim has indeed suffered relevant domestic violence, as defined in the Regulations. The Minister is mandated to accept the independent expert’s opinion as correct, thereby streamlining the process while ensuring that only genuine claimants benefit from the expedited visa provisions.
Key Provisions
The Migration Regulations 1994, as amended, include provisions in Division 1.5 that specifically address special circumstances relating to domestic violence (section 1.23(1A)). These provisions allow holders of certain temporary visas to have their applications for permanent visas considered, even if the partner relationship that formed the basis of their visa eligibility has ended and the standard waiting period has not been completed (section 1.23(1B)(a)). This is to ensure that individuals in abusive situations are not forced to remain in harmful relationships to maintain their visa status. The process is designed to be efficient and minimally intrusive to respect the privacy and urgency of these situations.
Under these regulations, the Minister, or designated decision makers, has the authority to refer claims of domestic violence that are not based on judicial determinations to an independent expert for evaluation when there are valid reasons to doubt the authenticity of the claim (section 1.23(1B)(b)). This measure is intended to filter out fraudulent claims, ensuring that the provisions are available only to genuine victims who need a swift resolution of their immigration status (section 1.23(1C)). The independent expert must be suitably qualified and can be employed by or contracted to an organisation specified in a Gazette Notice (section 1.21(1)). In this context, Centrelink has been designated as an eligible organisation, and only qualified Centrelink staff can provide an opinion on whether the alleged victim has experienced relevant domestic violence (section 1.21(1), 1.23(2)(b)).
Failure to comply with the requirements of the Migration Regulations 1994 can result in various civil and criminal consequences. For instance, submitting false information or fraudulent claims can be considered an offence under section 230 of the Migration Act 1958, leading to penalties such as fines up to $22,200 or imprisonment for up to five years, or both (section 230). Additionally, individuals found to be in breach of the visa conditions related to domestic violence provisions may face visa cancellation, which can result in deportation from Australia (section 116). The specific penalties and consequences will depend on the nature and severity of the breach, as well as the discretion of the decision maker.