9 January 2017: Ombudsman releases two investigation reports relating to the Department of Immigration and Border Protection

Commonwealth Ombudsman Colin Neave today released two own motion reports into the Department of Immigration and Border Protection.

The first report relates to the administration of section 501 of the Migration Act 1958 and the second report outlines an investigation into Bridging E visas being cancelled following criminal charges.

First report: section 501 of the Migration Act 1958

Section 501 of the Migration Act allows, or in some cases requires, the cancellation of visas of people who have been convicted of certain offences or those sentenced to more than 12 months imprisonment. A person who has had their visa cancelled may then apply to have the cancellation of their visa revoked so they may remain in Australia.

Following amendments made to s 501 in 2014, the number of visas cancelled under s 501 increased from 76 in 2013–14 to 983 in 2015–16.

While the department aims to cancel visas well before someone’s estimated date of release from prison, so that any revocation process can be finalised while in prison, to date this has rarely occurred.

"The delays in deciding revocation requests undermines the department’s policy of giving primary consideration to the best interests of those who have young children and/or experience prolonged family separation," Mr Neave said.

The report notes that the largest group affected by s 501 are New Zealand citizens followed by United Kingdom nationals, many of whom have been in Australia since childhood.

Second report: investigating Bridging E visa cancellations on the basis of a criminal charge

Ombudsman Colin Neave has also released an own motion report in response to complaints received by his office, as well as community concerns about people who have their Bridging visa (E) cancelled on the basis of a criminal charge, conviction or the possibility of a threat to the Australian community.

The report considered a Direction (Direction 63) issued by the Minister for Immigration and Border Protection relating to Bridging E visas.

The Direction states that Bridging E visa holder[s] who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigrant status.

The Ombudsman’s report investigated examples of people who were not prioritised for release from detention after the criminal charges were withdrawn or otherwise resolved.

"The ongoing detention of many individuals in this cohort is inappropriate and has negatively impacted upon their mental health," Mr Neave said.

"To deny a person the liberty to live freely in the community based on nothing more than an allegation that leads to a charge that is subsequently withdrawn, raises the question of whether the department has acted prematurely by cancelling a visa."

The Ombudsman will make no further comment on the reports.

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