The Silent Victim: shining a spotlight on the harsh reality of the visa cancellation process for women

Guest post by Dr Marianne Van Galen Dickie and Louisa Jones. Dr Marianne van Galen Dickie has extensive knowledge on migration law and practice. She is a migration agent and academic. She is currently the Advocate Deportation for Sisters Inside and General Editor of Lexis Nexis Immigration Review. Marianne holds a Doctorate in Professional Studies. Since 2023 Marianne has taught in the ACU Graduate Diploma of Migration Law and Practice and is privileged to continue her work in the Masters of Migration Law. Louisa Jones is a Lecturer at Australian Catholic University and manages the migration program as Course Coordinator. Louisa has been working in the migration industry for the last decade as a Solicitor and Registered Migration Agent (RMA). Over the years, Louisa’s focus has been on complex work which includes visa cancellation, family violence cases, refugee matters and review work. Louisa has a particular interest in the intersection between the criminal justice system and visa cancellation program (after seeing many of her clients go through this process).

This post is part of a thematic series in occasion of the 16 Days of Activism Against Gendered Violence. 

Over the last 10 years, the Australian Government has introduced harsher migration laws (notably visa cancellation provisions) that seek to immediately contain and remove offending non-citizens. Under section 501(3A) of the Migration Act 1958 (Cth), if a person fails the character test (which includes a 12-month sentence) and they are serving a sentence of imprisonment, the Minister must cancel their visa.  Once cancelled, people can seek revocation of the decision. Scholars have provided fantastic commentary on the effects of the cancelation regime on non-citizens (see Rebecca Powell research here). In the context of the 16 days of activism on gender-based violence, this blog will consider the practice and implementation of this form of border control, with a particular spotlight on offending women who were also victims of family violence. While scholars such as Victoria Canning provides an excellent analysis of detention as a form of gendered violence, we propose the entire process associated with the cancellation regime imposes an additional pre-emptive layer of violence upon the women affected.

As the cancellation of the visa happens when a woman is in prison, the time between the cancellation and the final decision (to return the person’s visa or remove that person permanently from Australia), ranges from months to years. During that time, they are considered unlawful non-citizens; as a result, their identities are defined by contradictory realities of citizenship and belonging. As a result, they become outsiders desperately trying to get back in. 

Our work as advocates and practitioners includes a strong focus on women and their experiences during this liminal period. The Minister provides decision makers with Directions that guide how they can assess the revocation request. In order to achieve a successful revocation, women must convince (through submissions and oral testimony) Home Affairs or the Administrative Appeals Tribunal Member, that they meet five primary criteria of the current Ministerial Direction, these are:

1. the protection of the Australian Community from criminal or other serious conduct; 
2. whether the conduct engaged in constituted family violence;  
3. the strength, nature and duration of ties to Australia;  
4. the best interests of minor children in Australia;  
5. the expectations of the Australian community. 

The emotional trauma associated with the revocation process cannot be stressed enough. In all sectors of client-based practice, the need to avoid re-traumatisation is well known. In this area of law, the process itself (in our view) resurrects past trauma and inflicts ongoing trauma. The decision making in character cancellations goes beyond the specific offending that led to incarceration and examines the entire life of the person. This process strips a person’s life down to bare criteria.  Two stages of the process that stand outside of the detention and incarceration experience are crucial to this claim.

The first stage of revocation requires statements by the women addressing their criminal and life history along with support from family and friends. For women, this means they are forced to relive past trauma as a means of explaining their offending. It is our experience, women have had to discuss (in detail) past rape or sexual abuse they experienced as a child (for some women this included incest and forced removal of babies), domestic violence, exposure to sex work as a means of support, drug addiction, family breakdowns and institutionalisation. Women struggle with confronting their history in such a raw and revealing manner. It can create conflict and damage to family relationships; as their past history is revealed to those providing support. If their initial request is not successful, they can appeal to the Administrative Review Tribunal where they will need to verbally discuss their past and face interrogation and allegations by the Minister’s representative who will seek to minimise their experiences.

The accounting of this abuse along with the need to provide evidence, and current psychological assessments that detail their life experiences, can trigger past and current mental health problems, increasing their vulnerability.

The Ministerial Direction, which is used for both stages, includes family violence provisions which were introduced to appease lobby groups concerned about the continued impact of family violence on woman and children. Academics and advocates have repeatedly raised concerns the provisions harm more women than they help (for example, the Visa Cancellation Working Group). The application of the Directions impacts on women in a specific way. Victims of family violence are meant to be passive recipients. However, the reality is that many women are subjected to cross orders when they are determined to also be a perpetrator, or when they choose to defend themselves (see, Family Violence Reform). 

As an example, a decision maker has access to police reports and records of orders taken out against women; they do not have access to those taken out against the men who may be responsible for the violence. Instead, they impact disproportionately on women who have been subjected to allegations by partners, to misidentification by police as perpetrators and for women who are reliant on their partners for their visa status.  

Regardless of the evidence/testimony the woman provides, the Directions act in such a way that her experiences as a victim cannot be taken into account. For example, see below extract from a AAT decision below:

The Tribunal nevertheless notes, as the Respondent points out, that the fact the Applicant may have been a victim of family violence herself does not negate the consideration. It may be seen as a regrettable and a counter-intuitive situation, particularly given the evidence of family violence on both sides of the relationship. However, the Applicant’s partner’s own behaviour towards the Applicant is not for consideration. 

We understand that the majority of incarcerated women have experienced some form of gendered violence prior to their incarceration. We maintain that the processes associated with the character cancellation reviolates these women and in doing so becomes a form of State sponsored violence.

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