4.1
This chapter considers the following elements of the visa application process, through the lens of individuals and organisations that have engaged with the application process:
eligibility requirements;
Visa Application Charges;
integrity checks and evidence requirements.
Eligibility requirements
4.2
As outlined in chapter 2, each visa subclass has specific eligibility requirements. The particulars of the requirements differ across subclasses but include such things as the location of the applicant (onshore or offshore), age, sponsor obligations and meeting the 'balance of family test'. Other requirements apply across all family visas, including assessments in relation to health, character and security.
4.3
The committee heard about difficulties applicants have in understanding and meeting complex eligibility requirements. For example, Australian Migration Options observed that limitations on eligibility requirements 'are not always easy to find even for lawyers and Registered Migration Agents' and:
Many clients have been caught out when applying for visas on their own, as they simply follow the guidance on the Home Affairs Website which does not set out all the regulations or limitations set out in the Migration Act and Regulations.
4.4
Inquiry participants drew the committee's attention to several issues related to meeting visa eligibility requirements, including:
the definition of immediate family;
the balance of family test;
the family violence provisions;
eligibility for people who have sought protection; and
the operation of Ministerial Direction 80.
4.5
These issues are discussed in greater detail in the following sections.
Definition of immediate family
4.6
Regulation 1.12AA of the Migration Regulations 1994 (Migration Regulations) defines 'immediate family' as follows:
(1)
For these Regulations, a person A is a member of the immediate family of another person B if:
(a)
A is a spouse or de facto partner of B; or
(b)
A is a dependent child of B; or
(c)
A is a parent of B, and B is not 18 years or more.
4.7
Several submitters called for inclusive immigration policies that eschew the narrow definition of 'family' on which the current visa program relies, and instead adopt a broad and flexible approach to families. The Australian Human Rights Commission (AHRC), for example, pointed to international jurisprudence that compels governments to be flexible and consider a range of factors when defining a 'family', including cultural norms, and economic and emotional dependency. In some cases, the commission submitted this may include parents, siblings, caregivers, and dependents.
4.8
The Multicultural Youth Action Network (MYAN) argued current immigration policy does not allow for extended families or family members lost through forced displacement. The Network submitted that definitions within the visa program are problematic in their grounding in western ideals of the nuclear family, having little regard for the cultural factors and displacement experiences:
4.9
This does not reflect the family compositions of many migrant communities, where different societal norms and cultural dimensions make it common for a wider network of relationships to be recognised as integral to what is considered to be a family.
4.10
MYAN consequently advocated the adoption of a broader definition of 'family' that promotes cultural understanding, reflects the connections and experiences of applicants, and better supports positive settlement outcomes.
4.11
Similarly, the Human Rights Law Centre (HRLC) submitted:
Many people remain separated from their loved ones because of the inflexible and narrow concepts of family which determine visa eligibility. Our migration system must understand and account for the reality that, due to cultural factors or circumstances, families often extend beyond spouses and their children and include others who may or may not be related by blood, but are emotionally, socially and financially important members of a family.
4.12
According to the HRLC, the effect of the definition of 'immediate family' is:
Narrow definitions of 'family unit' and 'immediate family' in the Migration Regulations also exclude some people from the split family provisions of the Special Humanitarian Program, and prevent some families from applying for protection visas as a family unit (including where children turn 18 while waiting for a protection application to be processed).
4.13
The Queensland Law Society (QLS) detailed its experience working with clients affected by the 'quite narrow' definition of immediate family in relation to parents:
We might see, say, a 19-year-old young woman who has been separated from her family members, has lived for a long time in a refugee camp and has managed to make her way safely to Australia. She will then, for example, be able to locate her parents through Red Cross tracing. Because she's over 18, her parents are not immediate family members for the purposes of the definition, which is not consistent in the reverse case. So a parent can sponsor a dependent child who's over 18, but a child over 18 is unable to apply, through the split family provisions, to have their parent, as an immediate family member, join them, even if it could be established that they meet the dependency criteria set out in the migration law. So that's something that we see on the ground is a specific limitation of the current definition of 'immediate family'.
4.14
QLS also provided another example whereby an Afghan man may be in Australia and his wife and children 'are in a precarious situation in Pakistan'. Furthermore, 'also living within that family is his sister, for example, who's never married, who he is responsible for culturally. The definition of 'immediate family' wouldn't cover her being brought to the country'.
4.15
QLS suggested that the situation could be improved:
What I would see as a potential solution to that is more about the secondary criteria. When a client relies on the immediate family provisions, the secondary criteria require that any other applicants are also immediate family members, whereas that definition could be extended to members of the family unit. That would mean, in the example I have used, that the Afghan gentleman here in Australia could sponsor his wife and children as immediate family members, primary applicants, and his dependent sister or perhaps a dependent elderly widowed mother as a secondary applicant. That's not currently possible because the secondary applicant criteria is also that the family members be members of an immediate family rather than the broader definition of members of an immediate family unit. So they would be my observations to that point.
Balance of family test
4.16
The balance of family test measures a Parent visa applicant's family links to Australia. According to the Department of Home Affairs (the department), the test 'is an objective test that determines the extent of a parent's link to Australia compared to any other country based on their children's country of residence'. Essentially, the test requires that the parent has at least half their children living permanently in Australia or more children living permanently in Australia than any other single country.
4.17
The balance of family test is prescribed in Regulation 1.05 of the Migration Regulations 1994 (the Regulations) and schedule 2 requires applicants for a Parent category visa to meet the balance of family test.
4.18
Some inquiry participants highlighted concerns about this requirement. For example, the Immigration Advice and Rights Centre (IARC) described the balance of family test as a 'problematic' and 'rigid numerical approach of counting children by location to determine whether a parent has close ties to Australia'. MYAN observed that the balance of family test does 'not recognise extended families, or family members lost through forced displacements'. Catholic Religious Australia submitted that the 'test ignores specific circumstances', and the 'eligibility test should instead be based on need, assessed on a case-by-case basis'. Ms Jaleh Johannessen argued that this requirement 'places an unnecessary burden on the Australians whose other siblings live in other countries and are not willing to move to Australia'.
4.19
The Asylum Seeker Resource Centre observed that humanitarian entrants can find it difficult to satisfy the balance of family test:
[These individuals] may have large families overseas who are unable to care for the applicant due to living in war-affected areas. It can also be difficult to provide sufficient documentation to establish that an applicant satisfies the BOF [balance of family] in places where documentation with regards to the births, deaths and missing persons cannot be easily obtained.
4.20
The Humanism Project recommended that the balance of family test should be waived 'if exception or compelling circumstances exist'. This recommendation was echoed by the Vietnamese Australian Lawyers' Association.
Family violence provisions
4.21
Partner visas allow applicants in Australia to be granted permanent residence if their relationship has broken down and they have suffered domestic or family violence perpetrated by the sponsor (the family violence provisions). The department explained that the family violence provisions 'exist to avoid a situation where a visa applicant feels compelled to remain in a violent relationship for fear of losing their eligibility for permanent residence'.
4.22
Some submitters voiced concerns about the family violence provisions. For example, the IARC explained:
[A]pplicants seeking to satisfy the requirements for a Partner visa under the family violence provisions generally have a harder time satisfying a decision maker that their relationship with their partner was genuine and continuing before it ended. The challenge for victim-survivors of family violence is that they will often not have adequate evidence about relationship either because:
they are forced to leave home in a hurried manner which does not allow them the time or opportunity to collect evidence in support of their relationship; and
where the abusive relationship involves financial and/or social control there will often be little evidence in support of these aspects of the relationship.
4.23
InTouch observed that the family violence provisions have provided many of its clients 'with a pathway to safety by leaving the abusive relationship and continuing their lives in Australia'. However, inTouch was concerned that as the provisions are only available to those on particular partner visas, most of its clients are unable to access the provisions which means 'many women who are on other forms of temporary visas do not have the same pathway to safety'. InTouch recommended that the family violence provisions be extended to other visa types and expanded to included violence perpetrated by extended family members.
4.24
The Law Council of Australia highlighted circumstances that would not be captured by the family violence provisions such as 'some temporary residents who are victims of family violence are not protected, due to gaps in existing family violence provisions'.
4.25
Legal Aid NSW discussed the Migration Amendment (Family Violence and Other Measures) Act 2018 and partner visa applications due to commence in late 2021. While supporting the objectives of the Act – to 'prevent sponsorship approval for sponsors with a history of domestic and family violence' – Legal Aid NSW was concerned that this could result in unintended consequences:
One significant consequence maybe preventing access to the family violence exemption provisions for many of our clients. Under the prior approval of sponsorship process, some of our existing clients would not be able to access the family violence exemption where their sponsor perpetrates violence against them after they have lodged their application for a partner visa, but before the grant of a permanent visa.
Eligibility for people who have sought protection in Australia
4.26
Some evidence before the committee highlighted concerns about the differential treatment of certain groups and visa subclasses, with respect to accessing family reunion visas.
4.27
The AHRC explained that the 'Legacy Caseload', people who arrived in Australia by boat between 13 August 2012 and 1 January 2014, face 'a range of particular barriers to family reunion not faced by others':
The Legacy Caseload is a group of approximately 30,000 refugees and people seeking asylum who arrived in Australia by boat between 13 August 2012 and 1 January 2014 and lodged protection visa applications in Australia. Due to changes to Australian law and policy since 2012, people in the Legacy Caseload are treated differently from other groups of refugees and people seeking asylum.
4.28
The AHRC stated that this cohort faces 'significant restrictions on their eligibility to sponsor family members from overseas under available family sponsorship programs'. It continued:
As a result of these eligibility restrictions, the majority of people in the Legacy Caseload lack access to any viable avenues through which to reunite with relatives (including immediate family members) who did not accompany them to Australia. They consequently face the prospect of prolonged and indefinite separation from their families.
4.29
Liberty Victoria submitted that the 'statutory framework governing family reunification unjustly discriminates based on the mode of arrival of the sponsoring family member in Australia': 'migrants and refugees who arrive in Australia by plane with a visa in effect…are generally eligible to sponsor partners, children and other immediate family members'. In contrast, 'protection visa holders who arrived in Australia by boat without a visa, or who arrived by plane but refused immigration clearance, are generally legally prohibited from sponsoring family members for visas for Australia'. Liberty Victoria explained that the current law provides for this in three ways:
First, all refugees who arrived in this manner are currently only eligible to apply for a Temporary Protection visa or Safe Haven Enterprise visa (Temporary Protection Bar). Both visas are temporary in nature and neither permit the addition of family members who are not in Australia or the sponsorship of family visas.
Second, for those refugees who arrived in Australia in these circumstances and granted a permanent protection visa prior to the legislation being amended preventing this in 2014, Ministerial Direction 80 applies such that, in practice, their family members are unable to be granted a visa for Australia (Direction 80 Bar).
Third, those refugees in the second category above are prohibited from proposing immediate family members for humanitarian visas (Humanitarian Visa Proposer Bar).
4.30
Liberty Victoria described the potential impact of long-term family separation on these vulnerable people:
The cohort of people affected by these barriers are refugees and others found by the Australian government to be in need of international protection. By their nature, these individuals are often the most vulnerable members of our communities. These vulnerabilities can derive from their lived experiences of torture and trauma, mental and physical health conditions, cultural and linguistic barriers, as well as isolation from family and community.
Separation from family can have significant long-term adverse effects on a person's mental health and general welfare. The effects of separation are made worse where a person has a history of torture or trauma; and where a person faces linguistic and cultural barriers in their country of residence. For refugees, the safety of family members is often the most pressing concern and the cause of constant distress. Refugees in Australia prevented from reuniting with family are denied this crucial aspect of rebuilding their lives.
4.31
Liberty Victoria recommended the three bars on family reunification referred to above be repealed to ensure equal access to family reunion for all protection visa holders.
Temporary Protection Visas and Safe Haven Enterprise Visas
4.32
Some submitters were concerned that people holding Safe Haven Enterprise Visas (SHEVs) and Temporary Protection Visas (TPVs) are unable to reunite with their families due to the restrictions imposed on these visa types. Visa requirements mean that SHEV and TPV holders are unable to sponsor their family members for a Partner, Child or Parent visa. These restrictions mean that TPV and SHEV holders 'will likely face indefinite separation from their family members'.
4.33
Legal Aid ACT observed that it may take up to 20 years for persons holding these visas to obtain a family reunion, stating:
On their website, the department lists a total of 27 different visas that may be a pathway that may eventually lead to permanent residency. The reality is that only about three visas on that list would enable a small percentage of the current 12,779 SHEV holders to find a pathway that may lead to PR. If successful, they could be looking at another four years to get permanent residency. If you add to that the five years for citizenship, by my estimate, a man who came to Australia in 2012 without his wife and children could expect to have a partner visa application granted, if all goes well, in 2032. Yes, that's 20 years for a family reunion! Remember, only a small percentage of this cohort have a chance. The people who aren't eligible for a pathway can only apply for another temporary protection visa. They can't reunite their family.
4.34
The Australian Association of Social Workers argued that the inability of people on TPVs to be reunited with their families 'exemplifies the cruel, ineffective and costly nature of Australia's policy towards people seeking asylum'.
4.35
Amnesty International submitted that 'TPV and SHEV holders should be provided a pathway to permanency and must also be provided with the opportunity to reunite with their family members in recognition of the fundamental importance of the family unit to the wellbeing of all people'.
4.36
Refugee Voices stated that the effects of delayed family reunion are further exacerbated for these temporary visa holders as they are unable to travel outside Australia to visit family members. Refugee Legal shared this view, explaining:
The effect of the current legal framework is to keep refugees separated from their families indefinitely as TPV and SHEV holders are at risk of being persecuted in their countries of origin and cannot return to reunite with family members. TPV and SHEV holders are further subject to visa condition 8570 which prohibits travel outside of Australia without the prior, discretionary, approval of the Department of Home Affairs, such that family reunion in third countries is not freely available and will not be possible in every circumstance. There are also substantial costs associated with travel which not every visa holder is able to meet.
Lowest priority for people who arrive by boat
4.37
Family visa applications made by people who arrived in Australia by boat are processed with the lowest priority, according to the priorities listed in Ministerial Direction 80. That direction:
provides the order for considering and disposing of Family visa applications…The Direction sets out the Family Program processing priorities from highest to lowest as follows:
Applications where the Minister has exercised powers of intervention under sections 351 and 417 of the Act;
Partner, Prospective Marriage and Child visa applications;
Orphan Relative visa applicants;
Contributory Parent and Contributory Aged Parent visa applications;
Parent, Aged Parent Remaining Relative and Aged Dependent Relative visa applications;
Visa applications in which the sponsor is a person who entered Australia as an Illegal Maritime Arrival (IMA) and holds a permanent visa.
4.38
The department explained that Ministerial Direction 80 'is consistent with the Government's policy intentions in relation to the size, composition and integrity of the Migration Program'. The department further explained that the direction reflects the government's policy on the management of Australia's borders:
The Government has measures in place to discourage people from risking their lives on a dangerous boat journey. These include giving a lower priority in Ministerial Direction 80 to process Family visa applications where the applicant's sponsor is a person who entered Australia as an IMA and is a permanent resident. This provision does not apply to applicants whose sponsors were previously IMAs, but who have acquired Australia [sic] citizenship.
4.39
The Asylum Seeker Resource Centre highlighted that this direction is a significant barrier to family reunion. The IARC described the effect of the direction on this cohort, stating:
On its face, Direction 80 appears punitive and creates a second class of Australian permanent residents. Direction 80 is unfair, discriminatory and exacerbates the trauma that many refugees and their families are facing.
4.40
Some submitters were concerned that, as a result of Ministerial Direction 80, many refugees who arrived by boat might never have their family sponsorship applications processed, unless they acquire Australian citizenship. For example, Liberty Victoria argued:
To the best of our knowledge, we are not aware of any family visa applications affected by this Direction to have been granted to family members of refugees in Australia unless the sponsoring refugee family member had subsequently acquired Australian citizenship (at which time the Direction ceases to apply to them). Following this, it can be said that the deprioritisation effect of Direction 80 amounts to a complete suspension in processing in practice.
4.41
Refugee Advice & Casework Service expressed a similar view:
applications for family visas sponsored by people who arrived in Australia by boat and are now permanent Protection visa holders can be lodged, but will be constantly "leapfrogged" in priority by every single other application for this kind of visa. As a result, most such family visa applications will never be processed; they will remain in the queue forever, in a kind of Kafkaesque limbo.
4.42
The Human Rights Law Centre noted that refugees holding permanent humanitarian or refugee visas can apply to bring immediate family members to Australia under the Special Humanitarian Program. However, the Human Rights Law Centre also noted that this is an 'unattainable option for most people, and effectively impossible for those who arrived by boat'. According to the Centre:
The only pathway left for people in this situation is to wait until they can apply for citizenship and then seek to bring family members to Australia if citizenship is granted, as Direction 80 does not deprioritise citizens in the same way. However, the time from the grant of a permanent protection visa to citizenship can be well in excess of five years, on top of the many years it often takes to obtain a permanent protection visa in the first place. Citizenship applications from people who previously arrived in Australia by boat face extreme delays, and are likely to take longer to process than other applications. Some people in this situation will never be granted citizenship due to a lack of official documentation from their country of origin. As such, people are left facing decade-long waits – not to mention significant costs – to reunite with family members.
4.43
The Human Rights Law Centre also noted that:
Citizenship applications from people who previously arrived in Australia by boat face extreme delays and are likely to take longer to process than other applications. In a 2018-19 Report, the Australian National Audit Office found that the Department of Home Affairs had decreased its rate of decision making, failed to keep pace with increasing application lodgements, and been responsible for frequent, lengthy, and unexplained periods of inactivity (averaging 15 months). People who previously arrived by boat are deprioritised in an already inefficient process as they face greater scrutiny over their identity and are routinely and uncritically characterised as 'complex cases'.
As at 30 June 2018, applicants from the humanitarian stream were found to account for 77% of citizenship applications that had been waiting a determination for more than two years, despite comprising just 9% of all lodgements.26 Some people in this situation will never be granted citizenship due to a lack of official documentation from their country of origin.
4.44
The department advised that decision makers may depart from the order of priority stipulated within the direction 'if they are satisfied that the application involves special circumstances of a compassionate nature, and having regard to those circumstances, there are compelling reasons to depart from the order of priority'. However, the department noted that the terms 'compelling' and 'compassionate' are not defined in either the Migration Act or the Migration Regulations.
4.45
Several submitters indicated, however, that the order of priority is rarely departed from. Australian Migration Options gave evidence that it:
managed to have one IMA case prioritised since D80 was introduced, and that was a case where one of the secondary visa applicants was diagnosed with cancer. To the embassy's credit the health waiver request was sent and processed in record time and the visas were granted 3 months after we lodged the priority processing request.
4.46
Several submissions recommended that Ministerial Direction 80 be revoked, amended, or abolished so that permanent residents are not de-prioritised and have the same level of access to family reunion pathways as applicants who are not unauthorised maritime arrivals.
Visa Application Charges
4.47
As described in chapter 2, Visa Application Charges (VACs) are prescribed in Schedule 1 of the Migration Regulations. A number of submitters asserted that Australia's VACs are high compared to other countries, including the United Kingdom, Canada, New Zealand and the United States.
4.48
The Castan Centre submitted that while 'the data of previous family visa costs has not been readily available on the Department's website, the costs have increased significantly in the last 10 years'. In its view, the current base application charges 'are high and may exclude many who do not have the socio-economic means to pay for such [an] application'.
Impact of Visa Application Charges
4.49
Evidence to the inquiry highlighted concerns about the current costs for visa applications. Some evidence drew attention to the visa costs overall while other evidence focused on the costs of specific visas.
4.50
Several inquiry participants described the family visa application costs as 'prohibitive'. Some argued that the high application costs means that the system is primarily attainable only for the financially well-off and those 'from lower socio-economic backgrounds, especially refugees, are particularly disadvantaged by the current system'.
4.51
Submitters drew attention to the cost implications for specific groups. For example, Legal Aid NSW submitted that 'the cost of partner visas is prohibitive for some sections of the migrant community, in particular, those people who have arrived on a refugee or humanitarian visa or have been granted protection onshore'. MYAN described the cost of family visa applications as a 'financial barrier that is particularly acute for newly arrived young people' who are 'often at significant financial disadvantage soon after arrival in Australia'.
4.52
The National Ethnic Disability Alliance (NEDA) and Multicultural Disability Advocacy Association (MDAA) highlighted the impact of high visa costs on culturally and linguistically diverse (CALD) people with disabilities, explaining that this group is 'more likely to need professional support navigating the visa system, due to the complicated process of meeting the health requirements or obtaining a health waiver'.
4.53
Submitters drew particular attention to the cost of applying for a partner visa, currently $7,715 for the primary applicant and an additional $1,935/$3,860 per dependent child (depending on whether they are under or over 18 years of age). Some argued that this cost is disproportionate to other categories of visas: for example, partner visas are more expensive than skilled visas. The Migration Institute of Australia (MIA) stated that partner applicants 'question why they pay higher fees than other applicants, especially given the extended delays in the processing of their visas'.
4.54
The IARC suggested that the cost of a visa application in conjunction with the processing time 'places undue strain on visa applicants and their Australian partners'. The MIA recommended that the visa application fees associated with partner visa applications be reviewed and reassessed in comparison with other similar VACs.
4.55
Liberty Victoria posited that the 'excessive fees charged by the Australian government operate in practice to prohibit many vulnerable and disadvantaged people from being reunited with their loved ones'.
4.56
The AHRC described the current family visa costs as 'significant' and highlighted concerns:
that the significant costs of family visas may pose a practical barrier for a family to reunite in Australia. Where a family is unable to afford the application fee, this may prolong the separation of a family. Where a family is unable to reunite in a country outside Australia, separation may become indefinite.
4.57
Refugee Legal similarly argued that:
The high fees associated with family reunification applications, and the lack of accommodation within the system for applicants of low means, bars many applicants from applying in practice. These practical barriers have been identified by international experts as another potential breach of Australia's international obligation to protect family unity.
Additional costs
4.58
Evidence identified that VACs are just one component of the potential costs incurred by visa applicants. Many applicants require migration agent assistance as well as medical and police checks, interpreting and translation, DNA testing if requested, and travel, the costs of which are borne by the applicant. Costs associated with health and police checks may be incurred several times due to the length of processing time.
4.59
The Human Rights Law Centre emphasised that the complexity of migration laws 'requires most people to pay for advice from a migration lawyer or agent, typically amounting to several thousands of dollars'. In addition, some applicants 'will then need to pay for review processes in the Administrative Appeals Tribunal or the courts'. The range of costs that may be incurred by applicants, results in a 'system in which family unity is increasingly attainable only by the wealthy, or at crippling expense'.
4.60
On the matter of additional costs, the Refugee Council of Australia explained that international travel may be required for applicants to undertake mandatory medical examinations, undergo interviews and verify identification. In other cases, DNA tests may be required to 'prove relationships, further adding to the costs and of course travel to Australia'.
Proposals to reduce the impact of visa application costs
4.61
Inquiry participants suggested a range of approaches to reduce visa application costs. Noting that the current costs of partner visas 'can be prohibitive for some sponsors', Fragomen argued that 'fee reductions for lower income sponsors' (such as where the Australian sponsor holds a Health Care or Pensioner Concession Card) should be considered. Such reductions would be similar to fee concessions currently available under the Citizenship program.
4.62
Similarly, in relation to the cost of partner visas, Legal Aid NSW recommended that the department 'introduce an instalment payment plan whereby one third of the application fee (for example, $2,500 based on the current fee of $7,715) would be paid at the time of application'. The second instalment would be due once the application was assessed as meeting all statutory requirements with the third and final payment due 'after health and police checks are completed, at the time of the decision and before a visa is granted'.
4.63
The Islamic Council of Victoria suggested that consideration be given to offering 'direct concession rates' for family visas to 'alleviate the inequity of the current system'. The Human Rights Law Centre argued for application costs to be reduced and standardised and the introduction of 'financial hardship waivers'.
4.64
MYAN recommended the introduction of means testing to 'alleviate the inequity of the current system, allow for more flexible family reunion options for all young people'. Others supported measures such as means testing, concession rates or reductions when financial hardship can be demonstrated.
4.65
The AHRC supported the introduction of a fee waiver or reduction for Family stream visas in circumstances where applicants cannot reasonably afford the visa application fee, and where this may result in prolonged or indefinite family separation.
4.66
The Federation of Ethnic Communities' Councils of Australia (FECCA) referred to the 2016 report from the Productivity Commission entitled Migrant Intake into Australia, which required the PC, in part, to consider 'the greater use of charges relative to quotas and qualitative criteria to determine the intake of temporary and permanent entrants into Australia'. In particular:
FECCA reiterates the Commission's concerns about prohibitively high costs of visas and the barriers this causes to the reunion of families on lower incomes. FECCA also supports the Productivity Commission's 2016 call for a detailed review of current visa charges, and their justification, to develop a model of visas based on eligibility criteria and visa charge to attract a balanced range of migrants.
4.67
MIA referred to a 'common misconception amongst applicants that the fees paid for their visa applications are used to directly fund the processing of their application'. The Institute further noted that 'revenue from visa applications can and is used in surprisingly unrelated manners by Governments'.
4.68
The Castan Centre similarly expressed concern that 'there is no evidence that the higher fees have actually been used to increase resources that the Department dedicates to the processing of these visas'. It suggested that 'in fact, longer processing and waiting times…suggest the opposite, and raise the concern that visa fees are in fact used for revenue raising'.
Processing delays
4.69
During the course of the inquiry there was extensive discussion about processing delays, with numerous submitters highlighting lengthy waiting periods as a key barrier to family reunion. The Castan Centre stated:
Parliament has voted to ensure that no limitations apply to the grant of visas to the spouses/partners or dependent children of Australian citizens and other eligible residents. Moreover, even though the family stream is subject to processing priorities, partners and children are processed first. Yet processing times even for these priority applications have increased significantly in recent years.
Length of the visa application process
4.70
While inquiry participants broadly regarded processing times as unsatisfactory, particular attention was paid to the backlog of applications, inconsistency in waiting periods, long wait times, and the impact of capping and queuing on processing times.
4.71
The department outlined processing times across a number of visa categories as at 28 February 2021, as set out in Table 4.1.
Table 4.1: Family stream visa processing times as at 28 February 2021
|
|
|
|
Partner (onshore – subclasses 820/801)
|
Subclass 820:
75% of applications: 23 months
90% of applications: 28 months
Subclass 801:
75% of applications: 16 months
90% of applications: 22 months
|
|
Partner (offshore – subclasses 309/100)
|
Subclass 309:
75% of applications: 18 months
90% of applications: 23 months
Subclass 100:
75% of applications: 17 months
90% of applications: 23 months
|
|
Prospective Marriage (offshore – subclass 300)
|
75% of applications: 18 months
90% of applications: 29 months
|
|
Contributory Parent (subclasses 143, 864, 173, 884)
|
58 months
|
|
Non-Contributory Parent (subclasses 103, 804)
|
Approximately 30 years
|
|
Other Family (Aged Dependent Relative – subclasses 114, 838)
|
Over 50 years
|
|
Other Family (Remaining Relative – subclasses 115, 835)
|
Over 50 years
|
|
Other Family (Carer – subclasses 116, 836)
|
Approximately 4.5 years
|
|
Other Family (Orphan Relative – subclasses 117, 837)
|
Subclass 117:
75% of applications: 42 months
90% of applications: 53 months
Subclass 837:
No processing times are available
|
|
Child (subclasses 802, 101)
|
Subclass 101:
75% of applications: 16 months
90% of applications: 21 months
Subclass 802:
75% of applications: 12 months
90% of applications: 16 months
|
|
Child (Adoption – subclass 102)
|
75% of applications: 15 months
90% of applications: 24 months
|
|
Child (Dependent Child – subclass 445)
|
75% of applications: 14 months
|
|
Sponsored Parent (Temporary) (subclass 870)
|
75% of applications: 4 months
90% of applications: 6 months
|
|
Parent Sponsor in relation to a Sponsored Parent (Temporary) visa (subclass 870)
|
75% of applications: 56 days
90% of applications: 66 days
|
|
New Zealand Citizen Family Relationship (subclass 461)
|
75% of applications: 35 months
90% of applications: 38 months
|
Source: Department of Home Affairs, Submission 22, pp. 24-29.
4.72
Some submitters raised the 'backlog' of applications waiting to be processed, and the impact this has on processing times. MIA contended that 'there are quite simply, not enough family stream places allocated in the migration program'. MIA also asserted that 'unless more places are allocated to the family stream program each year, there seems to be little that can be done to reduce these waiting periods'.
4.73
Figure 4.1 sets out statistics provided by the Castan Centre demonstrating the increase in case numbers over time:
4.74
The Castan Centre stated that this backlog, coupled with 'the excessive increase in processing and waiting times…means that even core members of the family face waiting times that can be measured in years'.
4.75
The Legal Aid Commission ACT submitted that waiting times for processing family and partner reunion visas have 'significantly increased in the past 10 years':
In the 2010-2011 calendar year, the 90th percentile of partner visa applications under subclass 801 were processed in 337 days. In the 2018-2019 calendar year, the 90th percentile of the same partner visa applications were processed in 768 days.
This represents an increase in processing times for Partner Visas (subclass 801) of 431 days.
4.76
The Department of Home Affairs indicated that, in the 2020-21 financial year, 'significant efforts' had been made to reduce the onshore and offshore caseloads, resulting in a reduction of the outstanding caseload from 98,000 down to 64,500 thousand.
Parent and Other Family visas
4.77
The waiting times associated with Non-Contributory Parent visas (subclasses 103 and 804) and Other Family visas (Aged Dependent Relative subclasses 114, 838 and Remaining Relative subclasses 115 and 835), was discussed during the inquiry. The application processing times for these two groups of visas is approximately 30 years and 50 years, respectively.
4.78
The department stated that the waiting periods for these visas 'is the result of a formal decision under section 85 of the [Migration Act] to cap those particular programs'. It advised:
Once that cap has been reached in each year, then other applications are simply added to the queue and, over time, you end up with a queue that's in the decades.
4.79
Legal Aid NSW described the Parent and Aged Parents visas as 'effectively obsolete based on the current processing time of more than 30 years'. Legal Aid NSW acknowledged that the processing times are 'reasonably and prominently displayed' on the department's website, however:
our experience is that many sponsors and applicants nonetheless do not interrogate this statistic and often will lodge an application, in the misplaced hope that the visa will be granted well ahead of the stated processing time. A processing time of more than 30 years is simply nonsensical to sponsors and they often disregard it.
The fact that visa applications can be lodged for these visa subclasses firmly implies that they are in fact available to be granted. A processing time of more than 30 years, when the youngest an applicant can be to apply for an Aged Parent visa is currently 65 (actual age is dependent on eligibility for the aged pension in Australia) means the prospect of successfully applying is, in practice, not achievable. For Parent visas, there is no age requirement, but again, the reality of a processing period of 30 years effectively means the visa, even if granted, will not have the desired benefit to either the sponsor or the parent – which is reunification.
4.80
MYAN observed that the 30-year wait time for Non-Contributory Parent visa applicants means that 'most applicants have very little chance of being accepted within the applicant's lifetime, making family reunion largely impossible under these guidelines'.
4.81
The Vietnamese Australian Lawyers' Association questioned the appropriateness of how the Remaining Relative visa currently functions, highlighting that impact of the long wait times for the visa on the applicant's family members and the strictness of the visa's eligibility criteria:
It is horrendous for last remaining relative visas where the waiting time is around 50 years. There is a requirement that the visa applicant must not have other family members in their home country, meaning that they cannot marry or have children because doing so may disqualify them from obtaining the visa. To be eligible, the visa applicant and their partner must not have near relative outside of Australia, which means that their partner cannot have parents outside Australia. If the visa applicant has children, they must be under 18 years of age. One would question the purpose of having the last remaining relative visa category with such strict criteria and ridiculously long waiting time.
Carer visas
4.82
Concerns were also raised about the impact of waiting times for carer visa applicants. Fragomen observed that the current processing time for carer visas (approximately four and a half years) is 'untenable for a program which has the policy intent to provide support to Australians who have been assessed as requiring assistance which cannot…reasonably be otherwise provided in Australia'.
4.83
The IARC expressed a similar view, stating:
It is a failure of the migration program that those with a serious illness or disability must show that they need help at the time of application but face a wait of more than four years for a visa to be granted to their carer.
This delay is causing significant distress and hardship to people with a disability and serious illness and their families who are desperate for help and fearful for the future.
4.84
The National Ethnic Disability Alliance and the Multicultural Disability Advocacy Association highlighted that 'long processing times are insensitive to our members' [which are predominately CALD people with disability] physical, cultural and linguistic needs and can end up with sponsors passing away'.
4.85
The Law Council of Australia argued that:
the carer visa should be afforded greater value as a visa category. It is important to recognise the importance family members can add to caring for Australian citizens and permanent resident family members who need care. This means less reliance on having to use community resources or put persons into aged care or supported care because they are no longer able to be cared at home.
4.86
To alleviate the long waiting times, the IARC suggested that the annual cap on carer visas should be removed to:
enable more Australians with a serious illness or disability to be cared for at home by a loved one and contribute to reducing the pressure on the aged care and disability system.
Inconsistency in waiting periods
4.87
A perceived lack of consistency and transparency in the application process, particularly in relation to the status of applications and processing times, concerned numerous inquiry participants. Legal Aid NSW described the processing and granting of partner visa applications as 'an arbitrary process' on the basis 'processing times are inconsistent and are not necessarily related to the date of lodgement'.
4.88
Some submitters suggested the disparity in waiting times was a function of when a family or partner visa application was made. QLS stated that recently:
new partner visa applications are being processed extremely quickly. Rather than what, over a decade, has been about 12 months for a partner visa application, it has extended to up to about two to three years. If you are a new partner visa application, that may get finalised within six months. But applications that were lodged prior to that change are taking three years plus. So there is a difference: if you lodge more recently, you get very, very quick processing; but if you've been in the system for a really long time, you're going to remain in there for an unknown period of time. And these are not complex cases. I have a case right now that is at the three-year mark; it is an absolutely genuine, very strongly evidenced de facto relationship. This goes to a processing issue in the way the department is managing the backlog of cases. It's not being processed in an orderly way.
4.89
The department conceded that there may be circumstances where newer applications are finalised before pre-existing ones, but asserted that 'it's because it's ready to be':
In some cases we simply haven't had the response or the material in front of us. So it's not a conscious decision to pick one over another. It's about saying, 'If we're going to deliver a program of this scale, we're going to be proactive across it and deal with the ones that are ready.
4.90
The department also acknowledged that the COVID-19 pandemic had impacted its operations offshore, which was 'producing differential outcomes in different parts of the world'. It stated:
…the Nairobi office is closed at the moment. Delhi is closed at the moment. So there might be geographical differences in complexity in lodging documents. It is not just us. It might be the biometrics collector or the third-party police checks and that sort of thing.
…
At the moment we're running at about 75 per cent capacity, even offshore—and it changes; as the COVID situation develops around the world, the offices open or close, or go to half strength. We're just pushing work as best we can. The ones which become bigger obstacles are things like the health check, which has to be done in country. And the responsiveness of other governments to requests for police checks can be a big issue as well. Obviously, if it's bad enough that the post is closed, then the last thing the local government is going to worry about is doing a police check for an Australian visa application.
Capping and queueing
4.91
As foreshadowed above, one of the factors contributing to processing times is 'capping and queuing' approach adopted under section 85 of the Migration Act.
4.92
Professor Peter McDonald suggested that, despite the operation of section 87 of the Migration Act (which precludes capping with respect to partner and child visas), '[t]here is a very strong case that successive Australian governments have been flaunting the law' in relation to section 87 of the Migration Act stating that there shall be no annual limit on the number of partner visa granted. In Professor McDonald's view, [d]epartmental documentation leaves no doubt that the number of partner visas has been capped'. Another submitter shared this view, suggesting that the planning levels imposed each year by government, including on Parent and Child visas, functions as a cap.
4.93
Some inquiry participants argued that annual caps should be abolished. For example, Denes Lawyers suggested the abolition of caps for partner and parent visa subclasses in respect of onshore applications 'at the very least':
Presumably, the purpose of these caps is to allow the Government to plan the number of people who come to Australia, and to achieve certain economic and social outcomes. The practical reality, however, is that onshore applicants are already physically in Australia, they all need housing, many of them work, some of them attend school, use medical facilities and so on. (For example, onshore partner visa applicants are eligible for Medicare from the moment they apply for their visa).
Impact of waiting times
4.94
Inquiry participants described the negative impact of lengthy waiting times for visa processing. The Tatiara District Council submitted:
The extensive time taken for the processing and integrity checking of visa applications has a tremendous negative impact on the mental health of those waiting to be reunited with their families, including severe depression and anxiety.
4.95
The Australian Red Cross observed that 'prolonged visa waiting times… prolong the stress and mental health burden of separation and may delay or prevent people from fully establishing their new lives in Australia'.
4.96
Individuals who have either navigated or are in the midst of navigating the family visa application process gave accounts about the impact of waiting periods on them and their families. One submitter stated:
In the case of…and I, we have now been waiting 23 months and, based on those processing timeframes, we are still likely to be around 6 months away from a decision. As a couple in their mid-40s, this is a long time to wait, and we have now lost any opportunity to try to have children. I resent the fact that the government has removed this choice from us.
It is uncertain when a visa will be grated so it impossible to make any future plans and the longer the wait time, the greater is the difficulty families find themselves in.
4.98
Yet another submitter told the committee that '[w]hile I was waiting for my visa, I had no work rights. I have lost a huge amount of money due to lack of income. My career has had to take a massive blow. I am not sure yet how or if I can recover from this'.
4.99
The Castan Centre emphasised that the 'issue of long processing times and delays is particularly crucial in relation to children, who have a right to maintain contact with both parents and not be separated from parents against their will'.
4.100
Refugee Legal stated that the current wait times 'are such that the purpose of an application is at risk of being frustrated before it is processed'. It noted that 'the factual background and circumstances of sponsors and their families are often liable to change within the processing period, rendering the application inaccurate, redundant or ineligible'.
Impact of delays in family violence provision matters
4.101
Submitters highlighted the particular impact of waiting periods on applicants utilising the family violence provisions. Legal Aid NSW remarked that these applicants, if they choose to leave a violent relationship 'are alone, often homeless and without access to immediate financial support or accommodation'. It explained:
Although they may be eligible for Special Benefit where they already hold their temporary partner visa, it often takes Services Australia many weeks to process the application, during which time they are destitute. Those who have not had their temporary partner visa processed yet are not eligible for any support from Centrelink. It takes up to two years to process the permanent visa application during which time they are ineligible, as bridging visa holders, for most support services. In the experience of our solicitors, many of these victims choose to stay in violent relationships, particularly when they have children to support.
4.102
Legal Aid NSW argued that applicants 'relying on the family violence provisions for the granting of a permanent visa' should 'always be granted priority processing'.
Recent changes in waiting times for onshore applications
4.103
As discussed in chapter 2, in 2020-21, as a result of the COVID-19 pandemic, the family stream expanded to approximately half of the total number of visas permitted under the Migration Program's planning levels. In addition, the department advised that, at the Australian Government's direction, onshore applications had been prioritised, due in part to 'the fact that the borders are closed and travel is difficult, notwithstanding that, ultimately, partners are one of the exempt categories'.
4.104
The Law Council of Australia recognised the recent improvements in the processing times for onshore partner visas, stating, 'the department has done an excellent job in reducing the waiting lists for onshore partner visas. It's just the parent visas that are really stuck in the system'.
4.105
The QLS saw this a different way:
The first thing is: in terms of prioritising onshore visa applications in order to retain migrants in Australia during the COVID pandemic, the result of that is that you're delaying the processing times for people who are offshore. People who are in Australia already, typically on a bridging visa which allows them to remain in Australia, hopefully are able to work, and they're reunited with their family. For people who are overseas, who are not being prioritised, the result is that, because they don't get prioritised, they don't get a permanent visa. As a result of that they may be subject to COVID travel exemptions. In terms of that as a priority, it doesn't appear to me to be the best use of departmental resources.
Capability of departmental IT systems
4.106
One key factor that the department highlighted as having an impact on application processing times is the capability of departmental IT systems. The department acknowledged that its 'current systems are not well geared for what would be accepted standards of modern service delivery'. The department explained:
We have legacy systems that are 25 or 30 years old. They're not set up to do push notifications; they're set up to do standard-template letters that are difficult to change.
4.107
The department stated that even though it had 'made good strides in getting from paper lodgement to online lodgement, [its] still doing the paper processing'. It provided an example wherein the department's current IT capabilities could be improved to streamline the visa application process, as follows:
Mr Kefford:…If we are dealing with a migration agent prefilling information or indeed a company sponsoring—a different context for this committee but it's the same concept—at the moment we start from scratch with a blank bit of paper. That is what we used to do when we had a blank piece of paper, except we are doing it on the screen now. What we are looking to do is essentially get to the point where we have, for want of a better phrase, an account for a migration agent, so that they can see all of their work and so that we can correspond with them to an address that we know and to a mobile phone that we know are kept up to date—and there are those six-digit codes that you get when you log into a website—so that we can maintain that currency of information.
One of the things that we have found with visa transactions is that they tend to be a series of one-offs. Someone will apply for a visa, stay for a bit and apply for a new one. In that interim, we don't necessarily know if they've got a new mobile phone or a new email address. We found this when we started writing to the partner applicants. I can't remember the proportion, but there was a degree of bounce-back because people had changed their contact details.
CHAIR: Surely that's the same with any administrative system. Those principles would apply, wouldn't they?
Mr Kefford: They would, but in a modern system someone could log in and tell us, using a mobile phone that we recognise, that they've got a new email address. At the moment even that's a paper form—to update the details. If your point is that it's clunky to maintain that sort of information and connection, then, yes, our systems don't help us do that.
Evidentiary requirements and integrity checking
4.108
Difficulties in meeting the relevant evidentiary requirements for family and partner visa applications was consistently raised as an issue during the course of the inquiry.
4.109
In particular, submitters raised the following key issues:
preclusion of applicants' access to requisite documentation;
consequences of the provision of incorrect information; and
establishing the genuineness of a relationship.
4.110
Each are discussed in the following sections.
Preclusion of access to requisite documentation
4.111
The committee was told that there are many circumstances where documentation required for a visa application is either non-existent or inaccessible, particularly for refugees and asylum seekers. MYAN explained:
The documents required for visa applications, including birth certificates, documents showing dependency, or death certificates may never have existed in the country of origin or may have been lost or destroyed due to the forced migration process or may be impossible to acquire without returning to home countries and placing themselves or their family members in danger. For refugees displaced in other countries, without formal status, documents such as police clearances are likely unobtainable.
4.112
The Refugee Council of Australia shared this view, stating:
Some people also highlighted the challenges of obtaining identity documents for children who were born in exile. Evidence of ongoing relationships (such as phone or email records) may be very difficult to provide due to lack of access to communication technologies in displacement situations. The most common issue raised in relation to documentation, however, was the difficulty of formally registering as refugees. Several former refugees reported that they had been unable to sponsor relatives for resettlement who had not registered their status with UNHCR – even if it was impossible for them to do so.
4.113
Both the Refugee Council and Refugee Legal recommended that greater flexibility in documentation and evidentiary requirements be introduced to overcome this obstacle.
Processes for when incorrect information is provided in an application
4.114
Public Interest Criterion (PIC) 4020 is a requirement for the granting of most visas. Under PIC 4020, a visa might be refused if bogus documents, or information that is false or misleading, is given to the Department of Home Affairs or the Administrative Appeals Tribunal.
4.115
Visa applicants must prove their identity and provide true information with their application. The department explained that a visa application might be refused for failing to satisfy PIC 4020 if the applicant or any members of the family unit:
do not satisfy the department as to their identity;
provide bogus documents or information that is false and misleading in relation to the visa application; or
provide bogus documents or information that is false and misleading in relation to a visa held in the 12 months before making the current application.
4.116
Ms Leah Perkins, Migration Law Committee at the Law Council of Australia, explained that PIC 4020 commenced in 2011:
Initially it was introduced to ensure that applicants weren't providing bogus documents, or false or misleading information in material, particularly in their applications. If they did they would have their visa refused and they would have a three-year bar on applying for any other visas. When this was introduced a waiver provision was also introduced, with a waiver provision being in the exception, if there are compelling and compassionate circumstances affecting Australian citizen permanent residents or Australian interests. So there's a little bit of flexibility there for people to get around that three-year bar if they've been found to provide false or misleading information.
4.117
Changes to the Migration Regulations in 2014 introduced an identity criterion under PIC 4020 requiring all applicants to satisfy the department of their identity. If identity requirements cannot be satisfied, an applicant will have their visa refused and will receive a 10-year bar on applying for any other visas. There are no waiver provisions. Ms Perkins expressed concern that these requirements 'unfairly and disproportionately [affects] people from refugee backgrounds and basically [excludes] them from this process if they don't have the privilege of having identity documents'.
4.118
The Law Council recommended that the 10-year period be reduced. 'If there must be a bar perhaps it can be brought down to three years, in line with the other criteria, with the introduction of a waiver provision'. Ms Perkins stated:
We absolutely understand the need to make sure we know who's coming to Australia and ensure security checks are done. But there needs to be some understanding of the situations that people are living in in these countries—for example, with respect to repeated requests from the department for applicants to return to their home country. Afghan refugees living in Pakistan have been asked to return to Afghanistan to obtain their identity documents. These people have fled Afghanistan because they're refugees. I've experienced numerous cases where they've returned to their country in the face of danger to get the identity documents to try to satisfy the department's request. We have concerns for our clients' safety when this happens.
Establishing the genuineness of a relationship
4.119
Subregulations 1.09A and 1.15A of the Migration Regulations identify the criteria that must be satisfied to establish the existence of a relationship for the purposes of the grant of a Partner visa. The department outlined the following as the core requirements for both married and de facto relationships:
have a mutual commitment to a shared life to the exclusion of all others;
have a relationship between them which is genuine and continuing; and
live together; or do not live separately and apart on a permanent basis.
4.120
QLS explained that, in its experience, 'any provision of incorrect information is treated [by the department] as though it is being given in the situation of actually attempting to provide false information'. It stated:
There doesn't appear to be clear consideration of the range of factors that are very clearly described in terms of the situations that occur in these particular places. I have seen a recent case where the Department of Home Affairs obtained a validation of an Afghani Tazkira where the Afghani government said that it was a false document. The client has gone through the process in good faith. All of the country information about the Afghani government shows that this is not a government that has the kind of administrative rigour and processes in place to be able to adequately verify a particular document at any given time. The fact that the Afghani government said, 'We don't have any record of that,' is treated as the gold standard and it should be absolutely accepted as non-genuine. I don't think that there is an adequate nuance in dealing with the complexities of a particular country's information and circumstances that people are dealing with.
4.121
The department identified four matters to which a decision maker must have regard in further assessing a partner relationship, namely:
(1)
the financial aspects of the relationship;
(2)
the nature of the household, including for example joint responsibility for the care and support of children, or the sharing of the responsibility for housework;
(3)
the social aspects of the relationship; and
(4)
the nature of the persons' commitment to each other.
4.122
For the purposes of establishing a marriage relationship, that marriage must be valid for the purposes of the Marriage Act 1961 at the time of a decision.
4.123
The department stated that the evidence applicants are asked to provide to prove the genuineness of the relationship includes:
written statements from the applicant and sponsor detailing the history of the relationship;
at least 2 statutory declarations from individuals who are Australian citizens or permanent residents who can attest to the relationship;
evidence that the relationship is genuine and continuing;
marriage certificate (if relevant);
evidence of a former marriage, divorce or widowhood; and
evidence that the de facto relationship has existed for at least 12 months (if relevant) or is registered in an Australian state or territory.
4.124
The department advised that '[i]n the last five years, the refusal rate for the Partner visa category (subclasses 300, 309 and 820) has been less than 10 per cent'. It highlighted that 'the most common refusal reason is not meeting the "genuineness of the relationship" criterion'.
4.125
Submitters suggested that this framework for assessing 'genuineness' precludes genuine couples from reaching the requisite threshold and therefore obtaining the relevant Partner visa. The IARC stated:
In our experience, decision makers tend to treat them as an exhaustive checklist without giving meaningful consideration to other aspects of the relationship or to cultural/social reasons which may explain why adequate evidence about these four matters cannot be produced.
Despite the multicultural and diverse configuration of relationships within Australia, the Migration Regulations and the Department's policy focuses predominantly on a western, heteronormative concept of a 'genuine relationship' with policy offering little guidance to decision makers to allow them to make a realistic finding about whether two people have genuine commitment to shared life together.
4.126
Dr Andrew Lowe shared his experience in seeking to obtain a Prospective Marriage visa for his fiancé and outlined some of their difficulties in meeting the requisite threshold. He submitted:
As we cannot travel to be with each other we have no way in which to gain the evidence the Department of Home Affairs relies upon so heavily. This evidence does not reflect modern relationships which can develop online and across continents with frequent travel back and forth by both parties.
4.127
Submitters surmised that within the 10 per cent of cases referred to by the department, as having been refused on the basis of genuineness, includes cases where, rather than the relationship being contrived, not enough evidence could be provided to meet the threshold. The Law Council stated:
In my experience, I've had visa applications refused under these categories because they've been found not to be genuine relationships. It's not because the relationship is not genuine; it could be because the client didn't provide enough evidence. Often that happens when people are self-represented. They're not quite sure what documents to provide. They upload a marriage certificate and that's about it, and the application gets refused because they haven't provided enough evidence of the genuineness of their relationship. So just because it's refused on genuineness doesn't mean that it's fraudulent; it could be just that there's not enough evidence.
4.128
QLS shared this view, stating:
The statistic is that 10 per cent of applications are refused because the clients are unable to establish the evidence that they are in a committed relationship. But then the department goes on to say that there's a key risk of matters being contrived. I don't think the statistics and the risk are linked, necessarily.
Evidence requirements in the context of relationships with family violence
4.129
inTouch highlighted the particular difficulties that individuals face in the context of relationships where family violence occurs. It submitted:
Proving the existence of a 'genuine relationship' can be challenging for clients who have experienced family violence by their sponsor. As part of the controlling and coercive behaviour exerted by the perpetrator, the client may have been excluded from household decisions and amenities that may normally be used as evidence of a relationship.
4.130
Legal Aid ACT echoed the concerns about the evidence requirements for victims of family violence:
Victims of family violence on partner visas have got two ways of evidencing the family violence. One is judicial and one is non-judicial. The judicial one goes through the court process to get a final order. The non-judicial one requires evidence from psychologists, social workers, doctors and so on. If the department is not satisfied with that evidence that they were the victim of family violence, they will refer that person on to an independent expert for another interview, and that independent expert will then interview that person and make an assessment whether they were subject to family violence. Unfortunately the delays in processing mean—we've told the department there's been family violence, we've provided evidence of family violence, but we could still be waiting six months or more for it to be referred to an independent expert for an interview. Six months is a long time to be waiting in someone's recovery journey from family violence. To meet a complete stranger who's going to make an assessment of family violence and to have to relive it is quite traumatic for them.
4.131
The QLS emphasised that in relationships involving violence, 'it can be difficult for applicants to meet the first threshold of genuineness because the dynamics of violence can interfere with the applicant's ability to provide evidence of the relationship'. Furthermore:
We consider it consistent with the intention of the family violence provisions that the Department consider evidence of a genuine relationship in the context of the violence which occurred during the course of the relationship. Currently, it is difficult for people who have experienced family violence to meet the prescriptive criteria required to establish a genuine relationship, and flexibility needs to be afforded to this cohort, in acknowledgment of how the dynamics of domestic and family violence can affect an applicant's ability to obtain and produce evidence. We also note that the establishment of the existence of family violence by its very nature is relevant to the consideration of whether or not a relationship existed between the visa applicant and sponsor. It is essential that these two issues be considered in context of each other.