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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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2.101 The committee requested a response from the minister in relation to the instrument in Report 6 of 2023.[2]
2.102 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.[3] If they are unable to make out such a claim, the consequences may be that they would be required to leave Australia.
2.103 Regulation 1.23 and 1.24 of the Migration Regulations require that where a person is applying for a visa and alleges they are a victim of family violence – where that violence has not been judicially determined – that they 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.[4] 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 evidence must be in writing, in English, on a professional letterhead, and include the contact details of the relevant professional.[5]
2.104 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.
2.105 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 the equal and non‑discriminatory protection of the law.[6] 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).[7] 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.[8]
2.106 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.[9]
2.107 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.
2.108 The committee considered further information is required to assess the compatibility of this measure with the right to equality and non-discrimination, and therefore sought the advice of the minister 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.
2.109 The full initial analysis is set out in Report 6 of 2023
2.110 The minister advised:
(a) why applicants are required to provide a minimum of two pieces of evidence from two separate categories;
The requirement for applicants to provide a minimum of two pieces of evidence from two separate categories has been in place since November 2012, when IMMI 12/116 was implemented.
Given the extensive changes implemented with LIN 23/026 and the removal of the requirement for professionals and service providers to provide a statutory declaration, the Department considers maintaining the requirement for two pieces of evidence to provide the appropriate balance between providing more flexibility to applicants and retaining some basic integrity settings. Requiring evidence from two separate categories ensures the evidence is from at least two independent sources, who are employed or suitably trained in identifying family violence. LIN 23/026 is expected to make it easier for applicants to obtain evidence from professionals and service providers that they are already engaged with, rather than having to seek out specific services to provide evidence for the purposes of the instrument, potentially at added expense and potential re-traumatisation. It may also encourage applicants who are not already engaged with services to come forward to seek assistance from suitably qualified professionals and service providers who can help them to access appropriate support and assistance. Other people such as friends and neighbours may not be able to do this.
Where the applicant has not engaged with such professionals and service providers, the intent is for the applicant to engage with two independent sources who are employed or suitably trained in identifying family violence, to produce evidence that supports their claims.
The professionals and service providers listed against LIN 23/026 are employed in the family violence sector, or in health, policing and education roles where they may encounter or identify family violence. The Department must make a determination on whether family violence occurred, and evidence from two separate sources supports this assessment.
The Government has committed to a further review of LIN 23/026 in the next 12 months to ensure it continues to reflect community expectations and address any issues raised by stakeholders and applicants.
The Department has been monitoring feedback from stakeholders and any impacts on caseload processing since the commencement of LIN 23/026. Some stakeholders have raised that the requirement to provide evidence from two separate categories may present a challenge for some applicants. As such, concerns regarding the requirement for applicants to provide a minimum of two pieces of evidence from two separate categories will be considered as part of this review.
(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);
Applicants are able to provide additional information to support their non-judicial family violence claim, as long as the minimum evidentiary requirements are met. This additional information must be taken into consideration by the decision-maker as part of a holistic assessment of the evidence.
The Department needs to maintain basic integrity settings and give decision-makers confidence in the evidence before them. Any widening of the instrument to include ‘non-official’ sources has been considered against expected uptake of this evidentiary pathway by applicants and impact on the assessment process. In practice, widening the scope may nullify the current intent of LIN 23/026.
A widening of the scope of evidence in the instrument to ‘non-official’ sources would need to be balanced against decision-makers being satisfied of family violence. While decision-makers are suitably trained in visa processing and sensitivities attached to family violence claims, they are not family violence professionals.
Consistent with paragraph 1.23(10)(c), if the Minister is not satisfied that the alleged victim has suffered the relevant family violence, the Minister must seek the opinion of an independent expert. Consideration must therefore be given to financial constraints of the current contract with the independent expert that is utilised where the decision-maker is unable to be satisfied family violence has occurred based on the evidence before them. The number of referrals to the independent expert and consequently costs to the Commonwealth could be expected to increase with a widening of scope.
On balance, the above factors are mitigated by relying on professionals and services providers listed against LIN 23/026 who are employed or suitably trained in identifying family violence.
The Department’s Procedural Instruction [Div1.5] Division 1.5 – Special provisions relating to family violence provides information and guidance to decision-makers on assessing family violence claims under the family violence provisions. This includes instructions on considering additional evidence that may have been submitted as part of the claim (section 3.12.3).
The Department’s website has recently been updated to advise applicants that they can provide other evidence to support their non-judicial family violence claim, in addition to the minimum evidentiary requirements. For more information see Family Violence Provisions (homeaffairs.gov.au)
(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
Decision-makers do have discretion to consider a range of evidence and all decisions are made on a case-by-case basis. Decision-makers are required to consider all evidence provided by the applicant as part of a holistic assessment of the evidence.
As noted above, the Department’s Procedural Instruction [Div1.5] Division 1.5 – Special provisions relating to family violence provides information and guidance to decision-makers on assessing family violence claims under the family violence provisions. This includes instructions on considering additional evidence that may have been submitted as part of the claim (section 3.12.3).
3.12.3. Additional evidence
Under policy, any other evidence may also be provided in support of a non-judicial family violence claim, so long as the minimum evidentiary requirements prescribed above [a statutory declaration by the alleged victim and at least two prescribed documents in accordance with the current legislative instrument] are met.
If relevant, additional evidence may be taken into consideration by the decision maker and given appropriate weighting (depending on the type and quality of the evidence provided) at the stage at which the decision maker must determine whether they are satisfied that relevant family violence did in fact take place.
Evidence by objective, official and credible sources should be given more weight than more subjective forms of evidence, such as letters and testimonies from friends and relatives.
(d) whether people from non-English speaking backgrounds are more frequently unable to provide evidence of non-judicially determined family violence in practice.
The Department is unable to confirm whether people from non-English speaking backgrounds are more frequently unable to provide evidence of non-judicially determined family violence in practice.
Under policy, decision-makers should be mindful of the sensitivity of family violence claims and the complexity of obtaining required evidence when deciding how to proceed with cases that do not appear to meet the evidentiary requirements.
Where an applicant has submitted a non-judicial family violence claim that does not meet the evidentiary requirements, decision-makers must notify the applicant and give them the opportunity to submit further evidence consistent with the requirements of LIN 23/026 or to make a judicial claim under one of subregulations 1.23(2), (4) or (6). Decision-makers are also encouraged to be flexible in offering reasonable extensions of time to provide evidence.
In recognition of some of the additional challenges faced by applicants from non-English speaking or certain cultural backgrounds, the Department added ‘community, multicultural or other crisis support services providing domestic and family violence assistance or support’ to LIN 23/026 as part of the category of ‘Family violence support service provider’. This category in IMMI 12/116 was limited to ‘women's refuge or family/domestic violence crisis centre’. This has been well received by stakeholders.
2.111 As set out in the initial analysis, family violence has a disproportionate impact on women generally, and women may more generally seek to rely on these visa protection provisions.[11] Further, women from culturally and linguistically diverse backgrounds are particularly vulnerable to family violence.[12] 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. In this regard, the minister stated that they were unable to advise whether people from non-English speaking backgrounds are more frequently unable to provide evidence of non-judicially determined family violence in practice. However, they also noted that in recognition of some of the additional challenges faced by applicants from non-English speaking or certain cultural backgrounds, the department had added ‘community, multicultural or other crisis support services providing domestic and family violence assistance or support’ as an official source of information. The minister stated that the previous version of the legislative instrument was limited to ‘women's refuge or family/domestic violence crisis centre’. Based on this information, there would appear to be a risk that, because people from non-English speaking backgrounds face additional challenges in accessing relevant services, they may more frequently face challenges in providing evidence of non-judicially determined family violence in practice. As such, there would appear to be a risk that this measure may have an indirectly discriminatory impact against certain non-citizens based on their ethnicity or national origin (both protected characteristics).
2.112 As noted in the preliminary analysis, differential treatment will not constitute unlawful discrimination if it 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.[13]
2.113 In this regard, the measure specifies the items of acceptable evidence for a non-judicially determined claim of family violence for the purposes of assessing whether the applicant is eligible for a visa independent of their visa sponsor, where that sponsor is alleged to be the perpetrator. Facilitating the administration of this visa system constitutes a legitimate objective under international human rights law, and specifying the items of acceptable evidence is rationally connected to (that is, effective to achieve) that objective.
2.114 The key question is whether this measure constitutes a proportionate limit on the right to equality and non-discrimination. This requires consideration of several factors, including whether a proposed limitation is sufficiently circumscribed, whether it is accompanied by sufficient safeguards, whether it provides the flexibility to treat different cases differently, and the availability of review.
2.115 As to why applicants are required to provide a minimum of two pieces of evidence from two separate categories (and not two pieces of evidence from the same source), the minister stated that the department considers that this provides the appropriate balance between providing more flexibility to applicants and retaining basic integrity settings. The minister stated that the relevant professionals and service providers are employed in the family violence sector, or in health, policing and education roles where they may encounter or identify family violence. The minister stated that this ensures the evidence is from at least two independent sources, who are employed or suitably trained in identifying family violence. The minister stated that the measure is expected to make it easier for applicants to obtain evidence from professionals and service providers that they are already engaged with, rather than having to seek out specific services to provide evidence for the purposes of the visa application process, and requiring two separate sources may encourage applicants who are not already engaged with services to come forward to seek assistance. In this regard, requiring official evidence from a broad range of services may make it easier for some people to obtain the minimum two forms of acceptable evidence of family violence. However, there may also be instances where persons are connected with few or no relevant services, and so obtaining such evidence may therefore be more challenging for them.
2.116 As to the absence of a discretion for decision-makers to consider 'non-official' sources of information if the requisite two sources are not available (for example, statutory declarations from a neighbour or friend), the minister stated that the department needs to maintain basic integrity settings and give decision-makers confidence in the evidence before them. They stated that while decision-makers are suitably trained in visa processing and sensitivities attached to family violence claims, they are not family violence professionals. However, it is not clear why such departmental decision-makers may not be provided with training in identifying evidence of family violence (or otherwise have access to trained professionals to inform their decision-making) such that they are able to assess evidence more readily.
2.117 The minister further noted that where the requisite two sources of evidence are available and decision-makers are not satisfied that a person has suffered family violence (that has not been determined by a court), they are required to seek the opinion of an independent expert, which incurs an expense to the department. Currently, the safeguard of having an expert opinion is only enlivened where a person had submitted a valid application, including providing a minimum of two pieces of evidence from two categories of official information. As such, it has no safeguard value with respect to individuals who cannot provide two separate categories of official evidence. As to why such an expert could not be consulted to determine claims of family violence in the absence of the two sources of official evidence, the minister stated that consideration must be given to ‘financial constraints of the current contract with the independent expert that is utilised where the decision-maker is unable to be satisfied family violence has occurred based on the evidence before them’. The minister stated that the number of referrals to the independent expert and consequently costs to the Commonwealth could be expected to increase with a widening of the scope of acceptable evidence. Noting that Australia has obligations to immediately realise the rights under the International Covenant on Civil and Political Rights, including the right to equality and non-discrimination, the financial implications of enlivening an existing legislative safeguard are not relevant to an assessment of whether this measure is a proportionate limit on this right.
2.118 Further information was sought as to why the measure does not give a decision-maker the discretion to consider a range of evidence provided to them about alleged family violence and to make a case-by-case determination. The minister stated that decision-makers do have the discretion to consider a range of evidence, and make a holistic assessment of all evidence, but only if the minimum evidentiary requirements from two official sources have been met. The minister also highlighted internal procedural instructions which provide information and guidance to decision-makers on assessing family violence claims.[14] These instructions advise decision-makers that additional relevant evidence may be taken into consideration, but that ‘evidence by objective, official and credible sources should be given more weight than more subjective forms of evidence, such as letters and testimonies from friends and relatives.’ However, as in relation to the above safeguard, a decision-maker’s ability to consider additional evidence would only be enlivened once a person had already satisfied the minimum two sources of evidentiary requirements. As such, this does not assist with the proportionality of the measure as it provides no additional flexibility to applicants who are unable to procure the requisite two sources of evidence from two different official sources.
2.119 Noting that there appears to be a risk that this measure may have a disproportionate impact on non-citizens for whom English is a second language or from certain cultural backgrounds, and that there is no flexibility to treat different cases differently (if the applicant cannot obtain the necessary two items of evidence) and that there are less rights-restrictive alternatives available (such as allowing decision-makers to make decisions on a case-by-case basis and, if necessary, seeking the advice of an expert) there is a risk that this measure impermissibly limits the right to equality and non-discrimination.
2.120 The committee thanks the minister for this response. The committee considers that there is a risk that applicants from non-English speaking backgrounds or certain cultural backgrounds may face more difficulties obtaining evidence of family violence and, consequently, the measure appears to limit the right to equality and non-discrimination. The committee considers that it is not clear the measure provides sufficient flexibility, or is accompanied by sufficient safeguards, such that this would constitute a permissible limit on the right to equality and non-discrimination.
2.121 The committee notes that the minister stated the department has monitored feedback from stakeholders and some stakeholders have raised that the requirement to provide evidence from two separate categories may present a challenge for some applicants. The minister stated that the government has committed to a further review of this measure in the next 12 months.
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Suggested action
2.122 The committee recommends that a review of this measure to be
conducted in the next 12 months to consider the concerns noted
in this report
(including consideration of whether people from non-English speaking backgrounds
or certain cultural backgrounds are
more frequently unable to provide evidence
of non-judicially determined family violence in practice).
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2.123 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration (Specification of evidentiary requirements – family violence) Instrument (LIN 23/026) 2023, Report 6 of 2023; [2023] AUPJCHR 81.
[2] Parliamentary Joint Committee on Human Rights, Report 6 of 2023 (14 June 2023) pp. 26-29.
[3] See the Department of Home Affairs webpage on Domestic and family violence and your visa.
[4] Schedule 1, item 1, table of types of evidence.
[5] Subsection 4(3).
[6] 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.
[7] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[8] 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].
[9] 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].
[10] The minister's response to the committee's inquiries was received on 17 July 2023. This is an extract of the response. The response is available in full on the committee's website.
[11] See, Australian Bureau of Statistics, Personal Safety, Australia (2016).
[12] 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.
[13] 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].
[14] See, [Div1.5] Division 1.5 – Special provisions relating to family violence. The LEGEND database is not directly available to the public. To access it, individuals must themselves subscribe (costing between $730 and $800 per year) or via a library scheme.
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