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Bulletin 1—19 August 2005–Assessments of the circumstances of people who have remained in immigration detention for two years or more

From 29 June 2005, the Commonwealth Ombudsman’s office assumed responsibility for conducting assessments of people who have been in immigration detention for two years or more. Regular information bulletins will be posted to the Commonwealth Ombudsman website. These bulletins will provide updates on the process and general progress of the reviews.

As at 19 August the office has received reports on 57 detainees from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). It is anticipated that we will receive around ten reports each week until the first reporting period has been completed in December 2005. Follow up reporting will be on a six monthly basis for each person who remains in detention.

Outline of functions

Following the announcement by the Prime Minister on 17 June 2005 and assent to the amendments to the Migration Act 1958 on 29 June 2005, the office of the Commonwealth Ombudsman has responsibility for assessing and preparing reports on the circumstances of immigration detention for people who have been detained for two or more years. This is in addition to our responsibility to investigate the 201 immigration detention matters that involve Australian citizens or other people lawfully in Australia who have been subject to detention or removal from Australia.

Establishing the infrastructure

It was recognised that this new role (and the assumption of responsibility for completing the investigation into the detention of Ms Vivian Alvarez and the 200 other cases) would have an immediate and substantial impact on the functions of the office and that this could not be done within our current resource provisions. Due to the increased demand, we have sought quickly to establish the infrastructure required to undertake our new role within our National Office structure.

    • Additional funding has been sought from the Department of Finance and Administration (DoFA) in conjunction with the Department of Prime Minister and Cabinet (PM&C).
    • The increase in the size of the office has demanded additional accommodation for staff. Our present accommodation arrangements are at full capacity. We have negotiated to secure space within our Canberra office building and the fit out of this space has commenced. We are expecting to occupy the additional space in late September.
    • The new role requires additional staff for the Ombudsman’s office. It is expected that the successful applicants to the recently advertised positions will commence in September. In the meantime, staff have been moved from other core areas of the office to ensure that no ground is lost in undertaking the initial reviews and setting up arrangements for the longer term.
    • A specific training program is being developed for staff to undertake our new function. This will complement our current training in investigative techniques and the role and ethos of the office. We expect training of all staff involved in the administration of the new function to occur in September.
    • The Information Technology implications of the new role and the appropriate method for recording case work related to the review of long-term detainees within our current case management system, are being addressed.
    • We are in the process of preparing a Request for Tender for expert assistance in interpreting, translating and transcription services for communicating with detainees.
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Process of Review

Since the amendments to the Migration Act came into force, the office has been liaising with DIMIA regarding the content of the reports the Department is required to provide to the Ombudsman. In the absence of any regulations, we have negotiated a number of matters to be included in the reports.

It is significant to note that all people who were in immigration detention for two years or more as at 29 June 2005 are to be reviewed within six months.

The Ombudsman has requested reports in order of priority, starting with the cases of those who have been in detention the longest, with precedence to be given to assessing cases involving the long-term detention of children and people who present with mental health concerns. Now that all children have been removed from detention, we are focusing on cases where there are mental health concerns. We will then assess those who have been held the longest in detention.

DIMIA is obliged, under the legislative changes, to report to the Ombudsman within 21 days of a person reaching two years in detention after 29 June 2005. Many of the reports we are now receiving are about these people. Even though these cases may not have been the highest priority, they still require assessment by this office. DIMIA’s ability to provide reports in relation to the longest-term detainees will necessarily be affected by this statutory requirement in the early phase of this new function.

When we receive a report from DIMIA for which we have to provide an assessment, we have set a maximum internal timeframe of three months. We anticipate that most assessments will be finalised in a much shorter time period.

Interviews with detainees

We will write to each detainee advising them when we have received a report from DIMIA. We will inform them that we are conducting an assessment on the appropriateness of their detention arrangements and invite them to be interviewed by an Ombudsman staff member. The letter will suggest that detainees may like to show this letter to a support person or an advocate if they wish.

Even though people may have been released into the community, we will still conduct an assessment. We have discovered that some people who have been released into the community on visas have not provided DIMIA with their current contact details which makes it difficult for us to determine their whereabouts and offer them an interview. Where this occurs, we will endeavour to contact them through their lawyers or migration agents, where appropriate, or through community networks.

The Ombudsman is firmly of the view that, in the interests of natural justice, there is an obligation on the office to interview all of the immigration detainees whose cases we are reviewing. Naturally this will be a voluntary process.

When interviews are arranged, detainees will be advised that they have the right to have a support person present if they wish and that we are prepared to consider any information that may be appropriate for their assessment. This may include submissions from their advocates. It has already been noted in some cases that all relevant submissions from advocates and lawyers may already be on the DIMIA files as part of the review process or request for Ministerial intervention. As we are investigating under the powers within the Ombudsman Act, we have access to DIMIA files and other records relevant to our investigations. We have flagged with DIMIA our desire to obtain copies of all such submissions.
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Representations from advocates and detainees

Since the Prime Minister announced his intention to create this new function, staff in all of our offices (Adelaide, Brisbane, Canberra, Darwin, Hobart, Melbourne, Sydney and Perth) have been handling enquiries from detainees and their advocates concerning the order in which we are to review individual cases. We have also been receiving a variety of support letters for detainees.

Many letters request that particular cases be assessed with priority. We understand this desire of detainees and their advocates that each individual’s circumstances be assessed without delay. Bearing in mind that all detainees will be reviewed in six months, we have decided not to establish any firm guidelines for assessing requests for priority. We will consider individual claims for priority on their merits. If we are not satisfied that a particular case warrants a higher priority than others, we will retain the information for consideration when we assess the case.

Until now we have been responding to all letters of support. In determining our priorities, we consider that it would be more productive for staff, and for the detainees, if we concentrate on conducting the assessments rather than talking or writing about what we are ‘going to do’. For that reason, we may no longer be able to acknowledge every letter in detail but propose to provide a standard response to acknowledge receipt of the correspondence and an assurance that it will be placed on file and considered when the assessment on a particular person is conducted. We will also regularly update this website.

As mentioned above, we are open to considering submissions on behalf of detainees but we do not want to delay the assessment process by waiting for such submissions or by being overburdened with reading submissions and letters of support that may not add value to the process. If people wish to provide this material, it is suggested that it address the issue of the current appropriateness of the person’s detention or issues arising from their continuing detention.

Reporting to the Minister and Parliament

The Ombudsman is required to provide an assessment on the appropriateness of the arrangements for the person’s detention to the Minister for Immigration. The assessment may include recommendations the Ombudsman considers appropriate, including:

    • continued detention
    • another form of detention that may be more appropriate
    • that a person be released into the community on a visa
    • general recommendations relating to the Department’s handling of its detainee caseload.
However, the Minister is not bound by any recommendations made by the Ombudsman .

The Ombudsman is also required to include a statement for the purpose of tabling in Parliament. The Minister is required to table the statement in Parliament within 15 sitting days after the Minister receives the statement. The statement sets out or paraphrases as much of the assessment report content as the Ombudsman considers can be tabled without adversely affecting the privacy of any person. It is also anticipated that the statements tabled in Parliament will be available on our website.

The Ombudsman has indicated his firm commitment to staff that he wishes to be closely involved in the process of reviewing the cases and he is hoping to be in a position to personally visit some detention centres when interviews are to be conducted. If he is not available, he will be represented by the Deputy Ombudsman or Senior Assistant Ombudsman in charge of the Immigration Team.