During the course of this inquiry, a number of issues were raised. These
the capacity of the proposed amendments to address family
Australia's obligations under international law;
procedural fairness for both visa and sponsor applicants;
privacy implications; and
the impact of the proposed amendments on the processing of visa
Addressing family violence
One of the key justifications for introducing these proposed amendments
is to combat family violence in the context of the family visa scheme.
In its 2014-15 Annual Report, the Department of Immigration and Border
Protection (DIBP) indicated that between 2012 and 2015 an average of
approximately 690 family violence claims were made to the Department each year.
Earlier this year the Victorian Royal Commission into Family Violence
(VRC) found that people from culturally and linguistically diverse (CALD)
backgrounds will be more likely to face barriers in obtaining help. It also
found that the impact on those victims is particularly severe where they do not
have permanent residency and consequently have limited access to support
services, and are at risk of coercion and control from a sponsoring spouse and
other family members.
The Coalition Against Trafficking in Women Australia (CATWA) also noted that
there have been numerous cases of Australian men 'facilitating forced and
servile marriages with migrant women', and of men with violent histories sponsoring
migrant women to come to Australia, and then being violent towards them,
culminating in some instances in their murder.
The extent of the proposed
The committee heard evidence that the proposed amendments would only
have an impact on some victims and potential victims of family violence, and
only where those individuals engaged with Australia's migration framework as
contemplated by this bill. Ms Erin Gillen of the Federation of Ethnic
Communities' Councils of Australia (FECCA) argued that the proposed measures would
only impact existing intimate relationships where the parties to that
relationship choose to apply for a family visa, and that this needs to be
considered when talking about the capacity of the proposed amendments to
'prevent' family violence. She explained that:
[T]o get a partner visa the requirement is that you are
married or in a de facto relationship with an Australian citizen or permanent
resident and that that relationship is genuine and ongoing. That may be
happening in Australia. There may already be people in relationships in
Australia applying for partner visas or they may be offshore applying for
partner visas. Violence may already be happening. It may have happened
previously in that relationship. So I think it is a little difficult to talk about
prevention when we are talking about existing relationships. We are not talking
about someone brand new, who has never been in a relationship with this person
coming in. They are already there.
Ms Gillen also argued that in a scenario where a non-citizen was in
Australia on a different type of visa (such as a student visa), entered into a
relationship and applied for a partner visa, but was unsuccessful due to the
sponsor applicant having a criminal history, that relationship would not
necessarily end simply because the sponsor application had been unsuccessful.
That person could try and apply for another type of visa, therefore not
allowing a person to sponsor a non-citizen does not necessary mean the
relationship will end, and that they will be protected from any violence by
virtue of that sponsor refusal.
CATWA agreed, arguing that 'it is...problematic to assume that the abusive nature
of the relationship will end merely because the sponsor's application has been
Both the McAuley Community Services for Women (MCSW) and the Settlement
Council of Australia (SCA) noted that family violence is underreported.
The SCA argued that the proposed measures would not help to exclude potential
sponsors who had been violent in the past, but whose actions had not resulted
in any criminal conviction.
The Border Crossing Observatory, Monash Gender and Family Violence Focus
Program, and InTouch Multicultural Centre Against Family Violence (BCO) agreed,
noting that where family violence crimes are reported, there is a significant
rate of attrition at each stage of the justice process.
The BCO also argued that:
To presume that women are empowered by knowledge of a violent
history undermines all the emerging research that indicates that knowing about
violence and experiencing violence is not enough to enable women to be safer.
This is a particularly important point given the body of research in Australia
and internationally which finds that separation is one of the leading risk
factors for intimate partner killing or serious harm.
Mr Hamish Hansford of the DIBP, stated that over the past five years
there have been significant changes in general attitudes and approaches to
family violence, and argued that the Department has a better awareness of the
issues than it did previously.
He also indicated that it is important to consider the proposed amendments in
context, and explained that:
[T]here are a whole range of different pathways for people
affected by domestic violence. I think the issue some of
the people were raising earlier this morning was: what happens when there is a
family onshore where there is domestic violence involved?...The department has
an understanding about how we deal with that situation—as well as, of course,
ministerial intervention, where the minister can consider individual cases. The
department has a whole range of mechanisms that we can consider. We will accord
with international convention and keeping families together where appropriate,
and provide options where there is domestic violence or other factors at play.
We are not saying that this is a complete solution for
everything but, in the department that manages migration and immigration, we
think this is a proportionate response that the government has put forward as a
Mr Hansford also emphasised that the proposed amendments are designed to
help enhance the overall integrity of Australia's migration system.
Mr David Drummond, Director of Visa Framework and Reform, emphasised in
particular the importance of the proposed enforceable obligations on sponsors,
Right now there is only one real undertaking on the sponsor,
and that is to support someone financially for two years and provide
accommodation. The bill actually looks at the ability of a sponsor to provide information
to the department to support their application—and that is an important part of
the bill—to provide notification of key changes and to make sure that the
information is not false and misleading. So it really gets back to the point
that I mentioned in the opening statement about transparency between all three
partners. Where someone who is a sponsor does try to hide something, it damages
the integrity of the migration system, of the process and of the relationship
between those three individuals.
'Punishing' visa applicants
The Immigration Advice and Rights Centre (IARC) argued that the proposed
sanctions for sponsors who fail to comply with statutory obligations under the
scheme could serve to punish visa holders. It stated that the two most common
circumstances in which a sponsor may fail to fulfil their undertaking is due to
financial hardship or manipulative and controlling behaviour over an applicant.
It concluded that imposing sanctions in either circumstance is inappropriate
If the failure to comply with the undertaking is because of
family violence...then sanctioning a sponsor may place the applicant at a greater
risk of harm and if the failure is because of severe financial hardship then
imposing a sanction will only add to the existing hardship and will deter
people from seeking aid and assistance.
Mr Ali Mojtahedi, Principal Solicitor of the IARC argued that sanctions involving
a monetary fine would be inappropriate and ineffective:
If you are going to impose a fine on a sponsor in
circumstances of family violence, that would...put the visa applicant at risk. It
would get them offside...[I]f someone is struggling, two questions arise.
Firstly, why would you impose a fine on them? Why would you make the
circumstance worse? Secondly, if they are struggling, that would make them feel
reluctant to go out and actually ask for help. If they are struggling, if they
cannot afford to pay their bills and cannot afford to feed the children, they
would be reluctant to go out and say, 'Help me,' because, if they do, they
could be facing a fine.
The BCO stated that it is not clear how the proposed statutory
obligations on visa sponsors would be monitored.
It argued that in the work-related visa scheme, there is a 'clear absence of
comprehensive review of the upholding of visa conditions and/or sponsor
obligations'. It questioned how the proposed statutory obligations would be
monitored and enforced in this context, and like the IARC, raised concerns that
the failure to meet these obligations was likely to come to the attention of
authorities during challenging financial circumstances.
The BCO also submitted that the proposed amendments:
[S]end a message that [culturally and linguistically diverse]
women are expected to leave and/or end their relationship if they are aware of
their partner/potential sponsor's previous history of violence, specifically
violence in the familial setting.
They argued that:
[T]his runs counter to the recognition that women should be
supported and empowered to know what their options are, and to provide multiple
supports to enable women to make the best decision for themselves and their
children without judgment'.
The IARC also submitted that the proposed amendment enabling an approved
sponsorship to subsequently be cancelled may also punish visa applicants:
The explanatory memorandum...provides that an approved
sponsorship may be cancelled where there is inappropriate use of the program or
where serious offences are detected...[This punishes] a visa applicant for the conduct
of a sponsor and will deter applicants from disclosing a serious offence
(including family and domestic violence). This amendment will not serve to
protect visa applicants and is counterproductive to the National Plan to Reduce
Violence Against Women and Children.
The BCO agreed, noting that while a protection order is a civil remedy,
breach of a protection order becomes a criminal matter which would be found on
a police check.
They argued that women living in situations of partner and familial abuse may
choose to stay silent while their application is being processed, and not to
pursue any avenue of support.
The DIBP advised the committee that some of the content of concern to
submitters is not yet drafted. Mr Hansford stated that the detail of the
proposed sponsorship obligations, while established under the bill, would need
to be fleshed out and examined in relevant regulations.
The Department also emphasised that the test for refusing a sponsorship
application would be set at a high level. Mr Drummond explained that for a
sponsorship application to be refused, the Department would need to be
concerned that there was a 'significant risk' to the applicant, and that they
would be in physical danger if the visa were to be granted.
As set out at paragraph 2.8, the Department explained that there are a
range of pathways for victims of family violence in the family visa program,
and indicated that the Department has the ability to deal with individual cases
Initiating the visa application
Several submitters raised concerns about the addition of a new
sponsorship application process preventing visa applicants from commencing
their engagement with the visa application process, and gaining access to
corresponding family violence protections.
The IARC noted the 'family violence exception' contained in Division 1.5
of the Migration Regulations 1994. This enables some visa applicants to
continue with their visa application and obtain a permanent visa, even if the
relationship with their partner/sponsor has ended.
The IARC argued that, 'The provisions, no doubt, exist to ensure that visa
applicants do not feel compelled to remain in abusive and violent relationships
in order to obtain a visa'.
Submitters raised concerns about the addition of an initial sponsor
application process and the capacity of this addition to help victims of family
violence. The Law Council of Australia (LCA) stated:
Under the proposed amendments, if an approved sponsor is
refused, then a visa applicant will be prevented from applying for a visa,
potentially leaving the visa applicant in a vulnerable position – for example,
women (typically) being forcibly returned to their country of origin.
It argued that under the existing scheme, those women may have been
entitled to a permanent partner visa via the existing family violence
exception, or have had gender-based claims for protection.
CATWA agreed that the addition of a new sponsor approval process could leave
migrant women without recourse to the legal remedies and support services to
which they may otherwise be afforded, had the application for a partner visa
Ms Clare Hughes of the LCA echoed these concerns, stating:
[I]f an Australian sponsor was refused under the proposed
amendments it would be the non-citizen visa applicant who would be the one
prevented from applying for an Australian visa, and this would potentially
leave them in quite a vulnerable position...typically women—who might be forcibly
returned to their country of origin without appropriate consideration of their
circumstances...They might have already personally sustained a number of years of
violence at the hands of their sponsor prior to the application being made but
have been unable or unwilling to properly seek legal redress. By these
amendments they would be then placed in a really difficult situation in which
they were unable to stay in Australia but were also unable to return to their
home country because of social or cultural stigma and more serious risks to
their lives, like honour killings, ostracism and homelessness. If the person
comes to Australia to get married and the marriage ends and they are forced to
return as a divorced or 'broken' women, it is quite shameful and in some
countries they do face a real risk of being killed or otherwise seriously
harmed by their families and communities.
The BCO likewise flagged the potentially serious consequences for a
woman returning to the country in which they were married. It highlighted a
case in which a client told their case worker that they would rather die than
have to return home after having been married in front of their whole community.
It also stated that some married women who are not able to live with their
husband because of visa processing issues, may be shamed by their family,
abandoned by their society, and be unable to re-marry or re-establish themselves
in their community.
As set out in detail in paragraph 2.8, the DIBP noted that the family
visa framework includes 'a range of different pathways' for victims of family
violence, that both the Department and the minister have an understanding of
how to deal with cases, and that the minister retains the discretion to
intervene and consider individual cases.
The Department also pointed out that the extra time associated with a
sponsor application, while varying from case to case, could be very minimal. It
explained that to date, police checks received from the CrimTrac system have
been obtained in a timely manner, and that in some cases the time for
processing those sponsor applications could take mere weeks.
Previous inquiries into family
violence and the family visa program
A number of submitters drew attention to previous inquiries into the
intersection between family violence and Australia's migration system. In 2012,
having considered the implementation of a sponsorship application process, the
Australian Law Reform Commission (ALRC) concluded that the safety of victims of
family violence would be better promoted via targeted education and the
dissemination of information.
It recommended the use of independent experts, better dissemination of
information about legal rights in Australia, and the provision of information
about family violence support services both prior to and on arrival in
This was a sentiment echoed by a number of submitters.
Ms Hughes of the LCA explained that:
[T]he ALRC recommended things like dissemination of
information to these applicants about their rights, about family violence
services and about what is acceptable in Australia and what is not. It is so
that, when they come to Australia, if they see signs that they might be
vulnerable to violence or that their husband or partner might be abusive then
they know how to go about it: how to contact the department of immigration and
how to access social services and other people who might help before it is too
The IARC noted Action Item 11 of the National Plan to Reduce Violence
Against Women and their Children: 'development of resource material to inform
and support these overseas spouses including information about essential
services and emergency contacts in Australia'.
Both the LCA and MCSW commended the development of a series of
factsheets for new arrivals to Australia entitled the 'Family Safety Pack'.
This pack includes factsheets dealing with domestic and family violence, sexual
assault, and family violence and partner visas. It is currently available in 46
The LCA noted that the Family Safety Pack includes factsheets for interpreters
dealing with family violence situations,
a move consistent with a recommendation of the 2016 VRC into Family Violence.
Echoing the sentiments of both the LCA and IARC, the MLP stated:
We support these recommendations not only on the basis that
they are sensible, but that they resulted from extensive community
consultation, which is the hallmark of best law reform practice.
CATWA argued that 'far greater resources and initiatives are required to
genuinely improve the management of family violence in the visa program, and
these must go beyond the refusal of the sponsor's application'.
The Department emphasised that the proposed amendments do not purport to
be a complete solution to the problems which it is designed to help address,
and noted that the purpose of the Department is to manage migration and
Defining 'family violence'
A number of submitters recommended that, in keeping with the
recommendations of the ALRC,
and the 2016 VRC,
the definition of 'family violence' contained in the Migration Regulations
1994 be broadened to be consistent with the definition in other pieces of
The Migration Regulations 1994 does not define the term 'family violence',
but rather outlines the circumstances in which a person will be deemed to have
suffered family violence.
These include where a court has granted an injunction against an alleged
and where a court has made a protection order for an alleged victim in relation
to an alleged offender.
In circumstances where a non-judicially determined claim of family violence is made,
the minister must consider whether the alleged violence took place, and must
seek the opinion of an independent expert if they are not satisfied.
The 2016 VRC considered the way in which 'family violence' is defined.
It highlighted the definition contained in the Family Violence Protection
Act 2008 (Victoria) as being a sound model.
The Act defines both 'family member' and 'family violence' broadly.
'Family member' is defined to include a range of individuals living in a family
environment, not merely biological relatives. It also defines 'family violence'
to include physical, sexual, emotional, psychological and/or economic conduct
which is abusive, or behaviour which is threatening or coercive, or 'in any
other way controls or dominates the family member and causes that family member
to feel fear'.
It also states that 'behaviour may constitute family violence even if they
behaviour would not constitute a criminal offence'.
FECCA argued that by expanding the definition of family violence, family
members other than a spouse would be able to seek protection under the current
family violence exception, where they had experienced violence from a family
The Department explained that it has developed a better awareness of
family violence over time,
emphasising the importance of the checks which the Department undertakes where
a claim of violence is made in the course of a visa application:
[T]he pathway to permanent residency involves a whole range
of checks, and the genuineness of the domestic violence suffered is one
component of that assessment. So we would have to look at the individual case.
It is not as if someone can claim it and then immediately gain permanent
residency in Australia. There has to be a basis and evidence behind some of the
Existing limitations on sponsors
A number of submitters discussed the existing limitations on visa
sponsors, and the capacity of these limitations to help address family
The MLP noted that family visa sponsors already have limitations placed
upon them, which are designed to protect visa applicants.
Australian citizens or permanent residents cannot sponsor more than two people
in a lifetime, and sponsorships must be at least five years apart,
unless the minister decides to waive these limitations due to compelling and
compassionate circumstances affecting the sponsor.
Sponsors cannot sponsor applicants under the age of 18 if they have been
charged with or convicted of a 'registrable offence' (which includes offences
against child protection legislation),
although the minister retains the discretion to approve sponsorship for charges
or convictions which occurred more than five years prior, or if there are other
The MLP argued that the bill 'represents a significant departure from these
The Department explained that, despite these current restrictions, there
is still a need for the introduction of the proposed sponsor application. Mr
Hansford emphasised that under the current system a visa sponsor is subject to
very few checks, and no police checks.
He also stated that while there are only a small proportion of visa sponsors
who sponsor people for non-genuine purposes, 'it is very difficult for a
departmental officer to provide that information to the applicant'.
The committee's view
The committee believes that given the importance of addressing family
violence, it is vital that the Government endeavour to address and alleviate
its effects wherever possible. In saying that, the committee recognises that
family violence can be very challenging to address because it can manifest in
very different ways, and often goes unreported. The committee commends the DIBP
for its efforts to address family violence where it intersects with Australia's
family visa program.
The committee recognises that newly-arrived migrants, and potential new
migrants, who may have limited English skills, few personal connections, a lack
of understanding about Australian law and social norms, and who come from a
society very different from that of modern Australia, are extremely vulnerable.
Australia's obligations under international law
Several submitters raised concerns about the potential for the proposed
measures to conflict with Australia's obligations under international law. The MLP
drew attention to the ALRC's 2012 Family Violence and Commonwealth Laws –
Improving Legal Frameworks report.
In that report, the ALRC stated that it made no recommendations with regards to
amending the sponsorship requirements 'in light of the difficulties in
implementing a separate sponsorship criterion without breaching Australia's
At that time the then Department of Immigration and Citizenship (DIAC) itself
submitted to the ALRC that:
Such measures could lead to claims that the Australian
Government is arbitrarily interfering with families, in breach of its
international obligations. It could also lead to claims that the Australian
government is interfering with relationships between Australian and their
overseas partners in a way it would not interfere in a relationship between two
The MLP maintained that a separate sponsorship criterion does amount to
arbitrary interference with family life, and is in breach of Article 17 of the
International Covenant on Civil and Political Rights (ICCPR).
It also submitted that the proposed amendments may breach Article 23 of the
ICCPR, which states that 'family is the fundamental unit of society and is
entitled to protection by the society and the State'. It noted the United
Nations Human Rights Committee's observation that while the ICCPR does not
recognise the right of an alien to reside in the territory of a State party, in
certain circumstances an alien may enjoy the protection of the covenant when
'considerations of non-discrimination...and respect for family life arise'.
The LCA argued that where one party is a non-citizen, the proposed amendments
may discriminate against families on the basis of national or social origin.
Ms Hughes of the LCA argued that the proposed measures could be
[T]here is no similar or equivalent law that says [an
Australian citizen] cannot then form a violent relationship with an Australian
partner. So there is potential for discrimination against those families who
have one member who is from a non-Australian background.
Mr Hoang of the MLP stated that the sponsorship and character
considerations also have the potential to discriminate against non-citizens. He
argued, in relation to the Migration Legislation Amendment (2016 Measures
No. 3) Regulation 2016, already before parliament:
[S]ponsorship can be refused on the basis of someone having –
according to what is here – a significant criminal record. That is defined to
include cumulative sentences that add up to 12 months or more. That can include
quite minor things...[Y]ou could have instances where someone could have
committee quite a minor offence and could then be precluded from sponsorship
their overseas partner in a way in which you would not impose these kings of
obligations on an Australian citizen who wishes to enter a relationship with
another Australia citizen.
Ms Gillen of the FECCA likewise submitted that the types of
relationships in question involve two consenting adults 'who both have the
capacity to voluntarily enter into relationships'. She argued that in light of
this, the government should not be able to interfere with their relationships
in a way that it cannot interfere with a relationship between two Australian
AWAVA argued that the proposed amendments enliven the operation of the
Convention on the Elimination of all Forms of Discrimination Against Women
It noted that the Explanatory Memorandum (EM) did not discuss Australia's
obligations under the CEDAW, and raised concerns about aspects of the proposed
amendments not complying with the instrument.
The EM statement of compatibility with human rights identified that the
provisions of the bill have implications with regards to human rights.
It concluded that where there are limits to human rights pursuant to the
provisions of the bill, 'those limitations are reasonable, necessary,
proportionate and rationally connected to achieve a legitimate objective'.
The DIBP argued that the proposed amendments are justifiable because
[New migrants] are a much more vulnerable group, and the
support structures around an individual coming to the country – particularly in
terms of language; knowledge of the country; access to services, family and
friends – are very different.
In response to submissions noting the Department's previous statements
in relation to the problem of implementing a separate sponsorship application
process, the DIBP stated:
In 2011, the department was concerned that a separate
sponsorship assessment could be seen to be in conflict with our international
obligations. At that time, the registrable offences had only been in place for
about 12 months and it was too soon to assess their impact. So, over the past
five years, we have continued to look at the impact. We believe the model is
entirely consistent with our international obligations, and there is no
mandatory refusal proposal in the bill...The convention people were talking about
is the right to form a family, but there are also other international
conventions around human rights and domestic violence that we have to trade off
and look at as well.
The committee agrees with a number of submitters who have raised that
the proposed amendments in this bill do indeed enliven many of Australia's
obligations under international law. The committee does not, however, agree
that the proposed amendments are in breach of the international legal
obligations discussed in this report. The committee believes that, where the
proposed amendments do affect the rights contained under international legal
instruments outlined in this report, that impact is both reasonable and
Under the proposed amendments, the Minister may disclose 'prescribed personal
information' about both visa applications and applicants for approval as a
family sponsor. This personal information would include the results from Police
checks, and details of relevant migration-related activities.
Sponsorship applicants would have to agree that this information could be
shared with other parties to the application.
Currently, police checks for visa sponsors are only conducted where the visa
application includes a minor.
A number of submitters raised concerns about the proposed enhanced
disclosure of personal information. The IARC argued that it is not justifiable
for information sharing to extend to an applicant's prior migration-related
activities or matters not relevant to the safety and welfare of the visa
It also stated that it is unclear 'why it is reasonable or necessary for the
information to be disclosed to other agencies'.
The MLP stated that it saw merit in disclosing information where doing so would
help a visa applicant to make an informed decision about whether or not to
proceed, however, it argued that provisions would need to undergo 'rigorous
scrutiny' to ensure that the relevant 'prescribed information' would not
infringe on the privacy of either party.
The LCA highlighted the cases of Elias & Elias  FCCA
457 and Dalton & Dalton  FamCA 174, in which the courts held
that spouses and domestic partners cannot obtain private or confidential
information about each other without the other party's consent (albeit in the
area of a family law property settlement).
It argued that the proposed amendments, enabling the Minister to disclose the
results of a potential sponsor's police check to other parties to the
application, would be a deviation from the current legal position in Australia,
as detailed in these cases.
The Office of the Australian Information Commissioner (OAIC) noted that
the right to privacy is not absolute and may give way where there is a
compelling public interest reason, provided the solution implemented 'minimises
the privacy intrusion to the fullest extent possible in the circumstances'.
Both the OAIC and LCA recommended undertaking a Privacy Impact Assessment (PIA)
to determine the potential privacy impacts of the proposed framework.
Noting that the types of private information in question would be set out in regulations,
the LCA argued that a PIA would serve as an 'additional safeguard and scrutiny
The Department advised that it had commenced a PIA during the early
stages of drafting the amendment, but following a discussion with the OAIC a
decision was made to defer the PIA and provide with the consequential
amendments to the Migration Regulations 1994.
It explained that 'the fundamental aspect of the bill is trying to
create transparency between the applicant, the sponsor and the department'.
Mr Drummond of the DIBP noted that an Australian Criminal Intelligence
Commission (ACIC) CrimTrac criminal history search only provides a list of
convictions and no detail behind those convictions.
He explained that if the Department found an issue in a sponsor applicant's
criminal history they would start to engage with that sponsor to find out what
the background was.
In terms of the procedure of sharing that information, Mr Drummond stated that:
[T]he sponsor would be well aware of the fact that we have
the information and that they had been given the opportunity to comment, and
part of that information exchange with these sponsors would be advising them
that we will be passing the information to the visa applicant.
The committee is of the view that the information sharing contemplated
by the proposed amendments is both reasonable and appropriate considering the
seriousness of conduct the amendments are designed to address. The committee
encourages the DIBP to ensure that its staff has both the knowledge and
training to assess both sponsor and visa applications on a case-by-case basis,
and apply sound judgement in the handling of personal information.
A number of submitters raised questions about procedural fairness for
both visa applicants and sponsor applications. CATWA stated that the proposed
amendments would leave affected visa applicants without access to the legal
resource which they can currently access where a visa application has been
denied, or where family violence is deemed to have occurred.
The MLP agreed, stating that the bill's silence on the consequences for visa
holders should the visa be cancelled:
...would leave the visa holder vulnerable to exercise of the
general visa cancellation power, on the grounds that the circumstances for the
grant of the visa no longer exist. It may be an unintended consequence of the
Bill that [an] innocent person is liable for visa cancellation. Unless the
person can make an application for another visa, they would be liable for
detention and removal from Australia. This perpetuates the vulnerability of
visa holders in family violence situations...
The IARC also argued that allowing for an approved sponsorship to be
cancelled where there has been 'inappropriate use' of the program, or where a
serious offence is detected, will punish the visa applicant for the conduct of
their sponsor, as well as deterring applicants from disclosing serious offences
out of fear that they will no longer have secure sponsorship.
The SCoA agreed, stating that this will likely have the opposite effect to that
intended by the bill.
The LCA raised concern about an aspect of the family visa scheme which,
despite not being the subject of proposed amendment, is central to the bill's
intended purpose: situations in which family violence will be deemed to have
occurred for the purpose of the family visa scheme. The LCA referred to
situations in which a non-judicially determined claim of violence had been made
and the minister had referred the matter to an independent expert. It stated
that legal practitioners had made anecdotal comments about 'instances in which
the DIBP has refused access to lawyers and migration agents during interviews
between victims of family violence and independent experts'.
It argued that this constituted a 'denial of the victim's right to legal advice
and assistance and possible subsequence prejudice', and noted that the expert
opinions based on that process could later be relied upon by the Department in
Submitters also raised concerns about the capacity for past conduct to
adversely impact a sponsor's application. In 2012 the then Department of
Immigration and Citizenship (DIAC) itself submitted to the ALRC that regulating
sponsorship could lead to 'a risk that Australian sponsors could be
disadvantaged by previous conduct that occurred a long time ago'.
The LCA particularly questioned the way the proposed amendments would operate
in relation to the Commonwealth Spent Conviction Scheme.
The Spent Conviction Scheme, contained in Part VIIC of the Crimes Act 1914,
sets out the circumstances in which an offender does not have to disclose
convictions for less serious offences.
The LCA argued that 'a disclosure exception should apply to spent convictions
unless there are reasonable grounds for waiving the exception'.
The LCA argued that the bill should be amended to state explicitly that
a person whose sponsor application has been refused will be able to appeal that
decision to the Administrative Appeals Tribunal (AAT) for merits review.
It highlighted the case of Ahmed v Minister for Immigration and Border
Protection  FCAFC 182, in which the Federal Court of Australia (FCA)
held that a right of review can be affected by provisions contained in
The LCA submitted that until the relevant regulations have been amended, it is not
clear whether merits review will actually be available.
The DIBP advised the committee that the only situation in which merits
review is not available is where 'the minister makes a personal decision under
a particular power of the Migration Act' and that this scenario is not
contemplated in regards to this bill.
A number of submitters agreed that the fact much of the substance of
these amendments would be contained in regulations is problematic. As the DIBP
stated, to implement the proposed framework, the Migration Regulations 1994
would need to be amended to set out information including sponsorship approval
criteria, the processes and terms for approval, sponsorship obligations,
circumstances where the Minister can take action against a sponsor, and the
kinds of personal information which may be disclosed.
The MLP stated that
It is most concerning to us that the Bill does not specify at
all what the obligations of the sponsors might be, what the sanctions for
breaching sponsorship are, or under what circumstances a person would have
their sponsorship status cancelled or barred.
The OAIC stated that while setting out the definition of 'prescribed
information' in regulations for the purposes of information sharing may provide
future flexibility, greater certainty could be achieved about privacy impacts
if more detail was contained within the bill itself.
The DIBP explained that the migration framework provides the Department
and the Minister with options for assisting visa applicants and visa holders
who have been the victim of family violence. As set out previously in paragraph
2.8, Mr Hansford stated:
[T]here is potentially a pathway for people to a permanent
visa because of their domestic violence issues. There is also potential for the
department to provide individuals with bridging visas in circumstances, and of
course there is ministerial intervention, where the minister can intervene in
individual cases to give people visas to Australia in Australia.
The DIBP further explained that governing legislation is required in
order to establish a level of detail in regulations, and noted that those
regulations are disallowable instruments.
The committee's view
The committee is of the view that the bill would afford both visa
applicants and sponsor applicants due procedural fairness. In relation to the
availability of merits review, the committee notes that the EM states
explicitly that where the DIBP refuses a sponsorship application, 'refused
applicants will have access to merits review by the Administrative Appeals
The committee regards this as a sufficient assurance that relevant decisions
will be appealable, except in the rare circumstances that the Minister makes a
personal decision under the Act.
The committee also notes the recent Migration Legislation Amendment
(2016 Measures No. 3) Regulation 2016, which provides detail as to the
limitations on approval for sponsorship, including information about police
checks and what constitutes a 'significant criminal record.
The committee notes that the provisions of this regulation are consistent with
the indications made by the DIBP in relation to the proposed family visa
Impacts on the visa application process
A number of submitters raised questions about the addition of a new
level of processing in partner visa applications, and additional costs incurred
as a result. The Migration Institute of Australia (MIA) stated that the waiting
period for a partner visa currently stands at a minimum of 12-15 months and may
take up to 24 months to be determined.
It strongly disputed the claim that the financial impact of the proposed
changes will be low and could be met with existing resources, stating that:
The processing times for partner applications are already
extremely slow and a large backlog exists. Adding an extra application to the
process for each couple, will add around 50,000 extra sponsor applications in
to the process pet year. It is difficult to understand how the DIBP can claim
the processing of such a large number of extra applications will be able to be
met within the financial constraints of its current funding. Partner applicants
are already paying almost twice the fees of other permanent residency applicants
and receiving far slower service.
The DIBP confirmed that it receives approximately 50,000 partner visa
and advised that at 31 August 2016 there were 53,334 partner visa first stage
migration applications on hand.
Ms Julian-Armitage of the MIA argued that the proposed amendments could
have a significant impact on visa applicants who apply onshore:
If a person is onshore in a de facto relationship with an
Australian resident or citizen, they will not be, as they are now, entitled to
a bridging visa until such time as their visa application is assessed. They
will not be able to acquire a bridging visa to allow them to stay in Australia
lawfully. Consequently, they will be required to go offshore and have extensive
periods of time where they will be separated, because that bridging visa will
not be applicable to them.
The MLP argued that for Australian citizens to be separated from their
partners for prolonged periods of time (particularly where their partner
applies offshore) is especially unfair considering the recent 72 per cent
increase of partner visa application fees.
The BCO likewise argued that an important consideration in regards to
appealable decisions is the cost and time of pursuing such an appeal.
The SCA submitted that apart from the longer processing times and
potential higher costs, the addition of a new layer of application could also
place a greater evidentiary burden on applicants and their families.
Both the MIA and MLP highlighted the difficulties individuals can face
when their visa status is uncertain. The MIA noted that from July 2014
applicants whose immigration status in Australia has become unlawful for some
reason can no longer lodge a partner application from within Australia. They
must leave Australia and their family, make an application from offshore, and
await the outcome.
It also stated that temporary visa holders awaiting a permanent visa
application outcome can face hardship in the areas of employment, loan
applications, and purchasing property.
The MIA recommended that if the proposed extra sponsor application were
to be introduced, extra financial resources and staff be allocated to the
relevant partner visas processing sections.
The MLP agreed that extra funding and resources would be required.
The DIBP explained that its experience to date of obtaining criminal
history checks from CrimTrac has been positive, and that results have been
Mr Drummond stated that an assessment for a sponsor applicant with no criminal
history could take weeks.
Mr Hansford further explained that in situations where criminal convictions
were found and put to the visa applicant, the processing time could vary:
It could range from a very short time where the applicant
says, 'Yes, I'm aware of those convictions and situation and I'm fine.' That
scenario would be quite quick, whereas in another scenario for an applicant it
might take a range of weeks to consider the offences and whether they would
weigh the decision to put forward an application against those particular issues.
It is a matter for an individual.
Mr Hansford also noted that, depending on the types of criminal
convictions present on a sponsor applicant's criminal record, the Department
may make further inquiries such as contacting the relevant police force for more
The committee commends the efforts of the DIBP in seeking to address
family violence where it intersects with the Australian family visa program.
The committee notes that various issues which were raised in the course of this
inquiry, and believes that provided those concerns are noted by the relevant
agencies, the proposed amendments do have the capacity to help improve the
welfare and safety of (primarily) women and children who are new to Australia.
The committee notes the concerns about the capacity of the proposed
amendments to combat family violence, and the fact that the impact will be
limited because the proposed amendments relate only to particular classes of
visa. Nevertheless, the committee believes the proposed amendments will have a
positive impact on the visa applicants in relation to whom it will operate.
On this basis, the committee recommends that the Senate pass the bill.
The committee recommends that the Senate pass the bill.
Senator the Hon Ian
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