Summary

22.1 This chapter considers the position of asylum seekers who seek protection in Australia as refugees on the basis of having experienced family violence. While family violence claims can fall under the definition of a refugee as contained in the United Nations Convention Relating to the Status of Refugees (the Refugees Convention)—as incorporated into Australian law by the Migration Act 1958 (Cth)—this remains a complex area of the law marked by inconsistent decision making.

22.2 The ALRC recommends that the Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) in relation to family violence in refugee assessment determinations. Such a direction should refer to guidance material on family violence contained in the Department of Immigration and Citizenship’s (DIAC) Gender Guidelines.^[1] The ALRC further recommends that the Gender Guidelines should be the subject of ongoing, comprehensive and periodic review.

22.3 The ALRC recommends that DIAC amend its instruction, Ministerial Powers—Minister’s Guidelines—s 48A cases and requests for intervention under s 48B,in the Procedures Advice Manual 3 (PAM) to refer to secondary visa applicants who are the victims of family violence.

22.4 These recommendations are intended to improve consistency in decision making, and to ensure that procedures allow for, and support victims in, making family violence claims under the Refugees Convention.