Ann Emmanuel, Immigration Advice and Rights Centre, Sally Cameron, Welfare Rights Centre and Emily Singh, Economic Justice Australia
For people in Australia on temporary visas, immigration law and social security law collide in ways that put them in extremely precarious situations, including limiting options to escape domestic violence.
No access: temporary visas
Most temporary visa holders are not eligible for income support from the Australian government. Many hold a temporary visa allowing them to work, study, and potentially live in Australia for a very long time, including indefinitely. Often temporary visa holders cannot resolve this issue by becoming permanent residents because Australia’s immigration law does not offer them clear pathways to permanent residency. The main exception relates to Partner visa, where a person may rely on the Family Violence Provisions under immigration law to continue with their existing visa application. For others, there are no permanent visa options even when they have Australian citizen children, they are facing hardship or discrimination if they return to their home country, and they are trying to escape domestic violence.
Despite Australia’s detailed family and domestic violence response, the collision between social security and immigration legal systems results in many people on temporary visas having no clear pathway to safety. If they decide to leave an abusive partner or family member, their only option will be dependence on charities and crisis accommodation for indefinite periods of time.
Access with barriers: the Newly Arrived Residents Waiting Period
The term “newly arrived residents waiting period” (NARWP) refers to the waiting period that generally applies before a permanent visa holder may access social security income support payments and concessions. While exemptions to the NARWP do exist, including in some cases involving family violence, obtaining a waiver of the NARWP under one of these exemptions can be difficult to achieve. The person subject to the NARWP needs to first know about the possibility of a waiver, go through the onerous process of applying for a waiver, evidence their experiences of domestic violence, and establish a substantial change of circumstances beyond their control since being granted permanent residency. This can be difficult to establish, particularly where the family violence pre-dates arrival in Australia but has since escalated. Further, waiver of the NARWP enables access only to Special Benefit, a single social security payment with harsh conditions attached. The NARWP remains an obstacle to social security – and to safety – for some people wanting to escape family violence.
Access with barriers: New Zealand citizens
The social security system treats New Zealand permanent residents who arrived in Australia on or after 26 February 2001 particularly harshly. Unlike other migrants, New Zealanders who move to Australia are automatically granted a Special Category Visa under which they have the right to remain indefinitely and to work, contributing to compulsory superannuation and paying tax.
Unlike other nationalities, New Zealanders are not required or prompted to apply for permanent residence. Consequently, unlike other recently arrived migrants (who may have arrived much more recently), New Zealanders are generally not eligible for social security payments even if their circumstances change. That includes where New Zealanders have lived in Australia for two decades, working and paying tax throughout that period. This places people from New Zealand at particular risk of ongoing domestic violence as they cannot access income support if they leave a violent partner.
Access linked to your relationship status: the ‘member of a couple’ conundrum
A person’s relationship status, that is – whether or not Centrelink or immigration considers a person to be a member of a couple, can determine immigration status and eligibility and rate of payment for social security.
Under social security legislation, when a person is considered a member of a couple, their partner’s income and assets are relevant to their eligibility for income support. In cases of domestic violence, a violent partner’s income and assets can reduce or completely remove a victim/survivor’s access to income support.
There is a provision under the Social Security Act (Section 24) which allows Centrelink to decide that a person remains a member of a couple but should not be considered a member of a couple for the purposes of social security eligibility due to being separated by illness or for another ‘special reason’. Arguing this section may be useful for social security purposes if a person lives with a financially abusive partner (and has no access to independent income) but particularly if a person has accrued an unfair social security debt due to a partner’s income or other actions. The argument that a person should not be considered a member of a couple could, however, be detrimental if being a member of a couple is essential to a person’s visa pathway. This would include circumstances where a person travelled to Australia on a partner visa but will also include persons who travelled to Australia as a dependent on their partner’s/parent’s primary visa.
As advocates seek to expand use of Section 24, care must be taken to consider its application in cases where a client is a visa holder experiencing domestic violence, specifically, where being a member of a couple was/is an essential factor of visa eligibility.
The policy asks
This siloing of social security, immigration and family and domestic violence frameworks requires urgent attention and a considered response, including consideration of the Blueprint for Reform, inclusion of social security in the National Plan to Reduce Violence against Women and children, and other current EJA recommendations currently before government.
HEAR MORE AT EJA’S 2022 CONFERENCE. PROGRAM AND REGISTRATION INFORMATION AVAILABLE HERE.
 The exceptions to this broad policy include; temporary forms of refugee/protection visas, some protection visa applicants who hold bridging visas, Protected Special Category Visa holders, victim survivors of modern slavery/human trafficking at various stages throughout the process of assisting law enforcement agencies to investigate and prosecute perpetrators and temporary partner visas (including subclass 309 – Partner (Provisional) and subclass 820 – Partner). All other temporary visas do not attract any eligibility to social security income support.