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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument repeals the Migration Regulations 1994 -
Specification of Evidentiary Requirements - IMMI 12/116 and specifies the type
and number of items of evidence for the purposes
of paragraph 1.24(b) of the
Migration Regulations 1994
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Portfolio
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Home Affairs
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Authorising legislation
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Last day to disallow
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Exempt from disallowance
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Rights
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Equality and non-discrimination
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1.37 This legislative instrument specifies the items of acceptable evidence for a non-judicially determined claim of family violence for the purposes of the Migration Regulations 1994 (Migration Regulations). If a person on a visa who was in a relationship with their sponsor can make out a claim of family violence they may be eligible for a permanent visa.[2] If they are unable to make out such a claim the consequences may be that they would be required to leave Australia.
1.38 Regulation 1.23 and 1.24 of the Migration Regulations require an alleged victim of family violence, which has not been judicially determined, (or a person acting on their behalf), who is applying for a visa, to provide a statutory declaration in relation to the alleged violence, as well as evidence specified by the minister as set out in a legislative instrument. This legislative instrument specifies the evidence that must be provided, namely that an applicant must provide a minimum of two items of official evidence of family violence. The categories of acceptable evidence types include reports from medical practitioners, police officers, child welfare officers, family violence support service providers, social workers, psychologists, and education professionals.[3] Two items of evidence must be provided, each of which must be a different type of evidence. For example, a person could not provide two separate hospital reports from a medical practitioner as evidence of family violence. They would also have to provide a second piece of different evidence, for example a police report. Further, all items of evidence must be in writing in English on a professional letterhead, and include the contact details of the relevant professional.[4]
1.39 Restricting the types of evidence which will be accepted to official sources of information, within the context of applications for a visa, engages and may limit the right to equality and non-discrimination, noting that applicants from non-English speaking backgrounds or certain cultural backgrounds may face more difficulties in obtaining such evidence.
1.40 The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[5] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[6] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate' exclusively or disproportionately affects people with a particular protected attribute.[7]
1.41 Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[8]
1.42 As this legislative instrument is exempt from disallowance, no statement of compatibility is required to be provided, and so no assessment of the measure's compatibility with the right to equality and non-discrimination is available.
1.43 Family violence has a disproportionate impact on women generally, and so women may more generally seek to rely on these visa protection provisions.[9] Further, women from culturally and linguistically diverse backgrounds are particularly vulnerable to family violence.[10] By virtue of their background, women within this cohort may face additional challenges in seeking to produce evidence from official sources. These barriers may include language barriers, social isolation, social and community pressure not to report violence, financial barriers to accessing services, and a lack of trust in official services. As such, it may be more difficult for people from culturally diverse backgrounds to produce reports from officials, such as the police, to support their claim of family violence, if the family violence was not officially reported.
1.44 It is unclear why applicants are required to provide two pieces of evidence from two separate categories of evidence (for example, a letter from a social worker and a letter from an education professional), rather than having the ability to provide two pieces of similar evidence (for example, two reports from medical professionals, for example, two separate hospital admissions). It is also unclear why there is no discretion to permit the consideration of 'non-official' sources of information (for example, statutory declarations from a neighbour or friend). In this regard it is also unclear why the measure does not provide the decision-maker with the discretion to consider a range of evidence provided to them about alleged family violence and make a case-by-case determination. As it stands, if a victim of family violence has compelling information from friends, family, neighbours and multiple reports from hospitals following admission after a violent attack, it would appear this evidence would not satisfy the requirements specified in this legislative instrument (as it only has one type of prescribed evidence).
1.45 The committee notes that restricting the types of evidence which will be accepted as evidence of family violence to official sources of information, within the context of applications for a visa, engages and may limit the right to equality and non-discrimination, noting that applicants from non-English speaking backgrounds or certain cultural backgrounds may face more difficulties in obtaining such evidence.
1.46 The committee considers further information is required to assess the compatibility of this measure with this right, and as such seeks the minister's advice in relation to:
(a) why applicants are required to provide a minimum of two pieces of evidence from two separate categories;
(b) why there is no discretion to permit the consideration of 'non-official' sources of information (for example, statutory declarations from a neighbour or friend);
(c) why the measure does not provide the decision-maker with the discretion to consider a range of evidence provided to them about alleged family violence and make a case-by-case determination; and
(d) whether people from non-English speaking backgrounds are more frequently unable to provide evidence of non-judicially determined family violence in practice.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration (Specification of evidentiary requirements—family violence) Instrument (LIN 23026) 2023 [F2023L00382], Report 6 of 2023; [2023] AUPJCHR 53.
[2] See the Department of Home Affairs webpage on Domestic and family violence and your visa.
[3] Schedule 1, item 1, table of types of evidence.
[4] Subsection 4(3).
[5] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[6] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[7] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'. See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd edition, Oxford University Press, Oxford, 2013, [23.39].
[8] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[9] See, Australian Bureau of Statistics, Personal Safety, Australia (2016).
[10] See, for example, AMES Australia and Department of Social Services (Cth), Violence against women in CALD communities: Understandings and actions to prevent violence against women in CALD communities (2016).
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2023/53.html