Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Pursuant to order and at the request of the chairs of the respective committees, I present the final report of the Legal and Constitutional Affairs References Committee on the prospective-marriage visa program together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

The marriage visa inquiry was referred to the Legal and Constitutional Affairs References Committee on 25 November 2011 to examine the particular aspects of the prospective-marriage visa program. The committee received nine submissions and held one public hearing in Canberra, on 25 May 2012. Overall, the committee considered that at there was a high level of integrity within the program and that there was no need for wide-scale reform, which was reassuring. However, evidence presented to the committee suggested that some aspects of the prospective-marriage visa program could be improved, especially to better protect young applicants and their intended spouses at risk of forced marriages or people trafficking. Unfortunately, there is a shortage of empirical data in this area, but the committee considered forced marriages to be an abuse of human rights for which safeguards could be established within the visa program. Certainly there has been some anecdotal evidence circulated within the Australian community which raised concerns about this potential abuse of human rights.

To minimise the risks, the committee recommended a formal policy of separately interviewing all applicants and sponsors under the age of 18 years as well as increasing the minimum age criterion for visa holders to 18 years. These two recommendations, if adopted, will allow DIAC to more accurately explore issues of intention and consent by having a formal interview process; they will also allow applicants and sponsors more time to consider their options and to seek help.

In its submission, the Australian Law Reform Commission highlighted that prospective-marriage visa holders cannot currently access the family violence exception contained in the Migration Regulations 1994. The committee agreed that visa holders should not remain in abusive relationships just because they believe that they will be deported if the relationship is terminated; clearly that would be a very unfortunate consequence. Therefore, the committee has recommended that the Australian government extend the family violence exception to prospective-marriage visa holders, as was also recommended by the Australian Law Reform Commission. DIAC was not able to report statistically on the incidence of fraud within the prospective-marriage visa program. The committee believed that in future DIAC's electronic database should contain the facility to do this and recommended accordingly. While no evidence was available concerning the number of fraud prosecutions, the committee noted a number of statutory offences in the Migration Act 1958 specifically relevant to the prospective-marriage visa program. The committee has therefore recommended the development of a specific prosecution policy for these offences.

DIAC advised that arranged marriages are an unquantifiable part of the prospective-marriage visa program. The committee noted, however, the importance of distinguishing between arranged and forced marriages. We understand that arranged marriages are culturally appropriate, worthy of great respect and often extremely successful. They are fundamentally different from forced marriages, which are abhorrent to all of us. The committee emphasised the need to ascertain the full and free consent of prospective-marriage visa applicants and their intended spouses to identify those marriages which are in fact forced marriages. The committee has recommended that DIAC's decision makers expressly consider the issue of real consent and record the non-consent of a party in such a way as to protect against adverse repercussions associated with any disclosure.

A consistent theme in the inquiry was a lack of knowledge about forced marriages in Australia, including within the prospective-marriage visa program. The committee has acknowledged recent research endeavours, including by the Australian Institute of Criminology, and has recommended an Australian government working group investigate the incidence of forced marriages in Australia and explore options for assisting victims.

Finally, the committee has endorsed the suggestion from some submitters that an information package should be provided to newly arrived migrants on a prospective-marriage visa or partner visa, recommending that such migrants be advised in an appropriate language of the law in Australia in relation to family violence and forced marriage and how victims can seek assistance.

I would like to take this opportunity to thank all those persons and organisations who made submissions to the inquiry and enriched our understanding of this area and informed our recommendations. I would also particularly like to thank the staff of the secretariat, who did their usual sterling work in managing the inquiry, dealing with the submissions received and drafting the committee report. I commend the report to the chamber.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I too rise as a member of the Senate Legal and Constitutional Affairs References Committee to comment on the prospective-marriage visa program report. In summarising the evidence, the committee came to the conclusion that there was no need for a wide-scale reform of the prospective-marriage visa program. However, notwithstanding this view, the committee, based on the evidence that was presented to it, came to the determination that some aspects of the program can be improved to provide in particular greater protections to applicants who, on account of their young age, could become victims of forced marriage and/or people trafficking. I do not think that anyone in this place would ever condone a young girl or a young boy becoming subject to this.

In terms of the age criterion for the prospective-marriage visa, the committee agreed with the evidence that we received from the organisation CATWA that the age criterion should be increased to at least 18 years. A number of issues in relation to the potential consequences of raising the age to 18 years were canvassed in evidence. One was that there was the potential for this to increase the instances of documentation fraud. The committee, however, determined that this is something that would not outweigh the benefits gained from raising the age limit. In the committee's opinion it was a risk that could be addressed.

The committee also noted in its report that the department does not support this proposal on the basis that it would not be reasonable for the program to impose an age restriction for a visa that enables a person to enter Australia and marry lawfully. The committee, however, based on other evidence that it received did not accept the rationale provided by the department. It considered it to be perfectly reasonable to require an applicant to be of lawful marriageable age when granted a visa to enter Australia in order to marry an intended spouse. In coming to this conclusion, the committee relied on the evidence from other jurisdictions that have this age limit in place. In particular, we relied on evidence from the United Kingdom and from Norway.

The department, along with a number of other submitters to the committee, expressed concern regarding the practice of forced marriage and the consequences for its victims. The committee agreed without a doubt that a single case of forced marriage constitutes a gross abuse of that victim's human rights. Such abuses should never be tolerated. The committee considers that appropriate safeguards should be established within the prospective-marriage visa program to provide as much protection as possible to visa applicants who could fall victims to this despicable practice.

The committee acknowledged a number of the submissions that it received from and the evidence that was given by the AIC, Ms Emma Davidson, legal practitioners and the CATWA organisation, all of whom advocated the provision of further information and education to the wider Australian community and migrant women to empower potential and actual victims and to maximise the opportunities for victim support. Based on the evidence that we received, the committee came to the conclusion that this would be a worthwhile initiative for prospective-marriage visa holders and other partner visa holders that could be instituted either at interview or upon arrival in Australia. I strongly endorse the recommendation that the committee came to. I do so based on a number of meetings that I have had as the coalition spokesperson for the status of women in relation to the development of an information package for newly arrived migrants on the prospective-marriage visa or the partner visa. The committee received evidence that such an information package can be readily produced. It is given out in other countries that are already facing problems in relation to their prospective-marriage visas. It was suggested that the information should include details of the law in Australia with respect to family violence and forced marriages, including factors that might indicate the existence of a forced marriage and how migrants experiencing family violence or a potential or actual forced marriage can seek assistance. The information package should be provided to migrants in an appropriate language, either in their first language, as indicated on their visa application form, or in the official language of their country of origin.

In conclusion, if women who come to this country—and men, but in particular the evidence we received was in relation to women—are doing so because they are being forced into marriage, this parliament should take steps to ensure that this does not occur. Where appropriate, we should provide protection to those women in the event that they are abused. The one thing we as women hold dear in this country is the ability to consent. When that ability is taken away, the parliament should ensure that appropriate steps are in place to address it.

Helen Kroger (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Senate Legal and Constitutional Affairs References Committee prospective-marriage visa program report. The previous two senators who spoke articulately covered aspects of particular concern the committee dealt with. I would like to mention that the genesis of the report was the many representations made to me and other senators and, in particular, reports in the media last year in relation to young women who had been abused and not provided with proper protections through the visa process. So I was very pleased to have an opportunity to co-author this inquiry, with Senator Cash, because it is something of particular concern to us.

The inquiry demonstrated through the submissions we received that there was overall integrity in the visa process. I really do want to make that point, because I think I have been very public in my condemnation of possible breaches of faith to young women being brought into this country. The inquiry demonstrated that in the main there was strong integrity in the system. Over 99 per cent of visa applications that fall in subclass 300 are for those who are over 18.

As Senator Cash highlighted, our concern is that if there is only one young woman under 18 brought to this country in a way that leads to her personal abuse, in whatever form that is, it is one too many. There were 227 girls under the age of 18 who fell into the category of having a visa that allowed them to come to this country for nine months prior to their betrothal. There are three things I want to raise that I think must be pursued by the government. Firstly, not all of these 227 were interviewed in the country they were seeking to leave—it can be a matter of being considered through paperwork. Through the submissions we have recommended that every single young woman under the age of 18 be personally interviewed on their own. Part of the process for those who are trying to assess whether or not an application is legitimate is the difficulty they have in assessing whether or not it is a forced marriage arrangement. Further guidelines, procedures and education need to be given to the officers in the countries of origin so that they can make a greater assessment, with stronger guidelines and improved integrity.

The department stated that the information collected for each individual is not centrally recorded. On this incredibly emotive subject—and we heard in the submissions that it really does exercise the emotions—there is a tremendous paucity of statistical information on it. We have therefore recommended that there be central recording of all relevant information so that proper statistical analysis can be undertaken over time. This will help us to get a sense of the extent of the incidence of forced marriages here, and even human trafficking, of which there is essentially no statistical recording or analysis whatsoever. So it is very hard to assess whether or not this is an issue in Australia. On the basis of the evidence we heard from witnesses, yes, it is a concern. They believe it is happening here, but there is no statistical information available to provide any backing for that assessment.

Finally, the committee unanimously agreed that the age should be increased to 18 for prospective-marriage visas. At the very least this provides another eight months for girls to develop a little bit more maturity so that they may have the independence and capacity to understand what it is they are doing in coming to Australia. What came out of this inquiry is that a working group should be established to look into the incidence or otherwise of forced marriages and whether in fact forced marriages and human trafficking are real issues here. There is no information on that and that is something we strongly supported, along with information packs to be put together by DIAC.

It is a great report. I commend it to the Senate and I commend it to senators to read because it was a very interesting inquiry and we believe some very good recommendations came out of it. I commend the report and I seek leave to continue my remarks.

Leave granted; debate adjourned.