Independent review of 457 visa programme

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1 5 May 2014 Independent Review Panel Department of Immigration and Border Protection PO BOX 6022 Canberra ACT 2600 Via to: To whom it may concern Independent review of 457 visa programme The Federation of Ethnic Communities Councils of Australia (FECCA) welcomes the opportunity to make a submission to the independent review into the Subclass 457 visa programme. FECCA is the national peak body representing Australians from culturally and linguistically diverse (CALD) backgrounds. FECCA provides advocacy, develops policy and promotes issues on behalf of its constituency to the Australian Government and the broader community. FECCA supports multiculturalism, community harmony, social justice and the rejection of all forms of discrimination and racism, so as to build a productive and culturally rich Australian society. FECCA s policies are designed around the concepts of empowerment and inclusion, and are formulated with the common good of all Australians in mind. FECCA acknowledges the substantial contribution made by the 457 visa skilled migration stream to the Australian economy and commends the initiative of the Department of Immigration and Border Protection to undertake a review of the programme with the core objective of evaluating its integrity. As part of the review process, FECCA provides the below advice and urges the Department to consider family and domestic violence issues affecting secondary holders of Subclass 457 visa and the

2 extension of the current family violence provisions to this visa category. Addressing the lack of consistency FECCA has highlighted on several occasions that the current gaps in the family violence provisions applicable only to certain permanent and temporary visa categories leave a significant number of women residing in Australia as secondary holders of temporary visas. In this situation, they do not have access to important legal and non-legal protections in the event that they become victims of family and domestic violence. The current applicability of the provision is discriminatory and FECCA believes that there is no compelling reason why the provisions should not apply to all visa categories, including to spouses of temporary work skilled visas. FECCA considers that the risks and negative effects associated with becoming a victim of domestic violence while on a secondary visa are equal to all visa holders. As highlighted in the Australian Law Reform Commission s (ALRC) Family Violence and Commonwealth Laws Improving Legal Frameworks report: There appears to be no sound policy reason why the exception should apply to protect secondary visa applicants on certain business (skilled stream) visas as it currently does but not to other onshore permanent visas. Family violence situations may arise between a primary and secondary visa applicant for any kind of visa. 1 The lack of consistency and accessibility of the provisions across different visa subclasses needs to be addressed to ensure that no temporary visa holders who have reasonable prospects of permanent migration (such as 457 visas holders) fall through the gaps. Moreover, FECCA believes that the extension of family violence provisions to 457 secondary visa holders is consistent with the provisions core objective to ensure that secondary temporary visa holders are not compelled to remain in an abusive relationship in order to be eligible to stay in Australia. 1 Australian Law Reform Commission (2012), Final Report (2012) Family Violence and Commonwealth Laws Improving Legal Frameworks, Part G, Chapter 20.37, available at -familyviolence-exception/expanding-family-violence-exception 2

3 Secondary 457 visa holders as a vulnerable group Along with the ALRC report, several other reports, including those from the Department of Social Services 2 and the Migration Council of Australia 3 have highlighted the legal liabilities of secondary 457 visa holders who are susceptible to becoming, or are already victims of domestic violence and recognised them as a particularly vulnerable group. Secondary holders of a 457 visas who have experienced family and domestic violence are unable, even after two years of living in Australia, to apply for permanent residency under the family violence provisions. Their status as a secondary visa holder makes them reliant on their spouses or the primary holder of the subclass 457 visa. A secondary subclass 457 visa holder is only able to remain in Australia if their relationship remains intact irrespective of their workor study status or other circumstances.this can be used as a method to control and manipulate dependents of the subclass 457 visa holder, particularly where visa holders threaten to withdraw sponsorship. Moreover, victims of domestic violence on 457 visas who attempt to escape an abusive relationship find that they are ineligible for assistance, reinforcing the common threat from their spouse that they will be deported if they report instnces of violence or go to authorities. In addition to the lack of legal protection, secondary applicants on 457 visas also lack the legal rights to access basic support and crisis services including social security, Medicare, legal assistance and public and community housing or refuge shelters if violence occurs or is reported. In these circumstances, this group of women are reluctant to leave the violent relationship and report the abuse to the police. As the ALRC highlights, providing access to family violence services and social security for secondary 457 visa holders would 2 Department of Social Service (2008), Women, Domestic and Family Violence and Homelessness: A Synthesis Report, available at 3 Migration Council of Australia (not dated), More than temporary: Australia s 457 visa program, available at 3

4 have an empowering effect on the victims by increasing the number of those who leave the abusive relationship and seek support and by improving the rates of abuses reported. 4 In addition to the extension of family violence provisions, FECCA also supports the proposal to introduce a new temporary visa category for secondary visa holders to allow victims of domestic violence to remain in Australia for a sufficient period of time. FECCA sees this as necessary to ensure that individuals are able to make an informed and independent decision about whether they wish to return to their country of origin and to make the necessary arrangements for leaving Australia or for applying for a different visa while having access to support services and social security benefits. Recommendations 1. FECCA recommends that the Department of Immigration and Border Protection develop independent pathways to permanent residency for applicants who are on subclass 457 visas and have been subjected to family violence by their partners after lodging their permanent residency application. This is in the context that their partner is the primary applicant for the couple s permanent residency. 2. FECCA recommends that the Department also explores options to introduce a new temporary visa category for secondary holders of 457 visas who become victims of domestic abuse. This visa should grant holders access to social security benefits and entitlements, accommodation and to legal and non-legal support. The time for which the visa is granted should allow sufficient time for the visit to make appropriate arrangements to leave Australia or to apply for a different visa. 3. FECCA also recommends that funding is allocated for the development of community awareness programs for primary and secondary holders of 457 visas about family and domestic violence, including education to raise awareness of their legal rights and responsibilities in Australia, specifically in terms of 4 Australian Law Reform Commission (2012), Op.cit. 4

5 domestic and family violence and including lists of services that they can access, or for which they are eligible. 4. FECCA recommends that the Commonwealth Government allows access to crisis payment, parenting and family support services and other assistance to help primary and secondary subclass 457 holders who are victims of domestic and family violence FECCA appreciates the opportunity to submit the above matters for the Department s consideration. For further information, please do not hesitate to contact the FECCA Office on (02) Yours sincerely Pallavi Sinha FECCA Women s Chair 5

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