Department of Immigration and Citizenship

1

31 August 2012

By email

Mr Robert Day

Director

Family Section

Department of Immigration and Citizenship

Dear Mr Day

Comments on the proposed amendments to the family violence provisions in the Migration Regulations 1994

We refer to the letter to us from the Minister for Immigration and Citizenship dated 15 July 2012 inviting our comment on the proposed amendments to the family violence provisions in the Migration Regulations 1994.

The Refugee and Immigration Legal Service Inc. (RAILS) is an independent not-for-profit organisation specialising in refugee and immigration law. RAILS has a large caseload of domestic violence matters, funded by both IAAAS and Legal Aid Queensland. We are the only independent not-for-profit organisation in Queensland that provides this service and we receive referrals from women’s refuges and other stakeholders from across the state.

We have included in this email our response to the Family Violence and Commonwealth Laws Issues Paper. In that submission we made a number of suggestions, some of which are relevant to the Government’s intention to streamline the evidentiary requirements for making a non-judicial claim of family violence. They included (at page 3) that ‘the strict interpretation of the requirements of the competent person’s statutory declaration can cause considerable hardship and difficulty for the victim’. We therefore welcome, in principle, the broadening of the evidentiary pool available to applicants seeking to establish family violence.

However, RAILS makes the following comments in relation to the Government’s proposal as outlined in the Minister’s letter of 15 July 2012 and his Press Release dated 17 June 2012.

Types of evidence

We assume that the reference to ‘court order’ in the list of documents that may be relevant to a non-judicial claim of family violence at page 3 of the Minister’s letter is not meant to displace the binding nature of judicially determined domestic violence. Clarification around this expression would be appreciated. RAILS would also ask for clarification around the status of temporary protection orders and undertakings to the court both in terms of judicial and non-judicial evidence of domestic violence.

The Minister’s letter is also not clear whether the applicant is the sole source of the evidence that may be relevant to a non-judicial claim of family violence. To what extent, if any, is the Department or an independent expert able to rely on evidence tendered by another party, e.g. a witness statement tendered by an alleged perpetrator that denies allegations of domestic violence?

We would submit that serious consideration be given to the reliability and weighting of such evidence as well as the fairness of relying on that information for assessing family violence where no opportunity is given to the applicant or a competent person to answer or address the veracity of that evidence.

TheMinister’s letter to us refers to a range of evidence that may be relevant to a non-judicial claim of family violence. Further clarification is required as to the proposed weighting to be assigned to individual items of evidence. For instance, we would submit that a statement from a women’s refuge counselor who has expertise in family violence and who has formed a trusted relationship with a victim of family violence should be given paramount weighting.

The role of the independent expert in assessing evidence

RAILS’ response to the Family Violence and Commonwealth Laws Issues Paper raised (at page 4) major concerns regarding the role of the independent expert in assessing evidence of family violence.

Although these concerns address who is assessing the evidence (as opposed to what evidence is to be assessed), we submit that simultaneous consideration must be given to these matters if the changes to the evidentiary requirements for making a non-judicial claim of family violence are to improve the operation of the family violence provisions.

RAILS’s ongoing concerns with the role of the independent expert include:

• Grounds for referral to an independent expert

At present the basis for referral to an independent expert is not clear in practice. If sufficient evidence is provided to the Department, we would submit that referral to an independent expert should not occur. The process of referral to an independent expert can lead to unnecessary delay and further traumatization of our clients who are the victims of family violence.

• Timeliness of referrals

The timeliness of referrals to the independent expert must be addressed. Referrals that occur months after the submission of evidence to the Department seriously disadvantages applicants. In such circumstances, applicants, competent persons and others who provide supporting statements may be unable to recall in detail the relevant events, leading to unjustified findings of inconsistencies of evidence.

• Non-transparency

The current process undertaken by the independent expert in assessing non-judicial evidence is non-transparent. The independent expert is not required to provide reasons for his or her assessment, nor is the independent expert required to record interviews with the applicant or other persons. This makes it impossible for the applicant to provide a meaningful response to the independent expert’s assessment, as required by law.

• Assessment not interrogation

In our experience, independent experts generally do not understand that their role is one of assessment not interrogation. In this regard, they do not appear tohave been trained in evidence gathering, nor are they sufficiently aware of the impact of interrogative techniques of interviewing on an applicant who has suffered family violence.

• Scope of assessment

All too often independent experts stray into consideration of the genuineness of the relationship between the applicant and the alleged perpetrator. This is a decision that should be made by the Departmental officer, who should consider the bona fides of the relationship before assessing whether family violence has occurred. As referral to an independent expert is designed to procure an independent assessment of family violence when there is insufficient evidence, the independent expert should not be re-interrogating the issue of the bona fides of the relationship.

• Failure to provide natural justice

It is our view that independent experts generally do not understand the requirements of natural justice. In addition to the failure to provide reasons for the decision and recordings of the relevant interviews, a particular concern is that independent experts continue to refuse to disclose to applicants potentially adverse information collected during the assessment process, e.g. letters from an alleged perpetrator.

When RAILS has made submissions in this respect to the Department and the independent expert there has been a general lack of knowledge or appreciation of recent judicial authority in which the Department has conceded that independent experts are bound by rules of natural justice in the carrying out of their statutory function, and which expressly required the independent experts to disclose information to the applicant that was relevant, significant and credible to the assessment.

At times, independent experts have raised with us their concern that disclosure of the adverse information provided by an alleged perpetrator may lead to breach of the alleged perpetrator’s right to privacy. We would strongly submit that the interests of providing natural justice to the applicant are paramount in these circumstances and full disclosure of the adverse information and who provided that information must be made to the applicant. Rigid adherence to the alleged perpetrator’s undefined ‘rights of privacy’ in this context is grossly inappropriate given the nature of the allegations.

• Access to evidence from other parties

A related concern is the practice of the independent expert in interviewing competent persons and other parties without notification to the applicant or his or her advisers. In our view, such interviews should not take place without offering the applicant an opportunity to correct, clarify or refute any evidence gathered in this way. At a minimum, the applicant or the applicant’s appointed advisers should be advised in advance of the interviews, provided with an opportunity to attend those interviews, and recordings of the interviews should be made available to the applicant or his or her appointed representative with sufficient time to provide a detailed response.

Please call us on 3846 9301 if you would like to discuss our comments further.

Yours sincerely,

Raquel Aldunate, Director, RAILS

Angus Francis, Principal Solicitor, RAILS