CHAPTER 5 | looking at the agencies

The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) continued to be a significant source of complaints to our office during the year. Overall, we received 865 complaints about DIMIA in 2003–04. This was a decrease of almost one fifth (255 complaints or 23%) on the number of complaints received in 2002–03 (see Figure 5.7).

We investigated just under half (46%) of complaint issues arising from complaints about DIMIA. This compares to the general average of 30% across all Australian Government departments and agencies. Of the 486 DIMIA issues investigated, arguable administrative defect or error was identified in 76 issues (15.6%).

Complaints about DIMIA can be categorised into three distinct areas: migration issues, which are usually about decisions on visa applications; immigration detention facilities, made by or on behalf of detainees; and other issues, such as Freedom of Information (FOI) applications and citizenship processes. Complaints about migration issues formed the largest category.

The most common concerns about migration issues were decisions that DIMIA made on permanent visa applications for overseas family members or spouses, and temporary visa applications for students and tourists.

Complaints from detainees in immigration detention facilities most commonly revolved around access to medical services, property that was allegedly lost or stolen and allegations of assault, both by detention centre staff and by other detainees.

'Complaints received about immigration matters are often complex and can take some time to resolve.'

Facilitating improved complaint resolution

Complaints received about immigration matters are often complex and can take some time to resolve. Visa applications must meet statutory requirements before they can be approved and information often has to be obtained from overseas immigration posts. The detention facility environment is a difficult one and, although the number of people still in detention has decreased over the years, many of those who remain have been in detention for lengthy periods. Complaints often relate to the day-to-day experiences of detainees living in detention and are difficult to resolve given the limitations of the detention environment.

'Complaints often relate to the day-to-day experiences of detainees living in detention …'

Officers from both DIMIA and the Ombudsman's office have worked hard throughout 2003–04 to ensure better communication and speedier resolution of complaints.

• Senior staff from the Ombudsman's office and DIMIA met regularly throughout the year to keep each other informed of potential issues of concern and to discuss significant cases.
  
  
• Members of the office's Immigration Team met monthly with staff from DIMIA's Ombudsman, Privacy and Freedom of Information Section to discuss current complaints and facilitate resolution.
  
  
• Detailed quarterly reports were provided to the Secretary of DIMIA to ensure that complaint trends and significant cases were brought to the attention of DIMIA's Executive in a timely manner.

These measures resulted in many longstanding complaints being resolved and a marked improvement in the working relationship between the two agencies.

We appreciated DIMIA arranging a meeting during the year with managers from the newly appointed detention service provider, Global Solutions Limited (GSL). At the meeting we discussed some of our past concerns about detention centre management.

DIMIA officers also showed an increased willingness to discuss potential issues of concern with the Ombudsman's office and to invite our comments on draft policies and documents, particularly relating to the management of detainees. The majority of the Ombudsman's comments have been adopted on the following policies and procedures:

• GSL's new draft complaint-handling guidelines, which are designed to facilitate speedy complaint resolution within the Immigration Detention Facilities (IDFs).
  
  
• A proposed new Migration Series Instruction on 'Transfers of Detainees within Detention Facilities'. Decisions to transfer detainees to a more restrictive environment have been the source of complaints from all IDFs in recent years. Concerns about inadequate record keeping and the absence of opportunities for detainees to comment on proposed transfer actions were raised with DIMIA on a number of occasions and, in particular, following a general disturbance within one IDF.
  
  
• Proposed procedures for transferring a number of longer-term detainees to Baxter IDF which had been designed to accommodate the longer-term detainees.

Feedback from detainees about the effectiveness of GSL's new policies has been encouraging. One measure of the positive change achieved by the new complaints management regime is that in the period January to June 2004 there was a 45% reduction in complaints compared to the same period in 2003. Specifically, 173 complaints were received in January–June 2003, 111 in July–December 2003, and 95 in January–June 2004. This is against a small drop in the number of detainees.

'Feedback from detainees about the effectiveness of GSL's new policies has been encouraging.'

Ombudsman staff (including the Ombudsman and Deputy Ombudsman) visited detention facilities regularly throughout the year. We welcomed DIMIA and GSL's support and cooperation with these visits, which often needed to be arranged at short notice.

Particular issues

Proposal for legislative change

A key objective of the Ombudsman's office is to facilitate improved administrative practices and to draw attention to legislative provisions that result in unfair or unreasonable consequences for individuals. These issues are taken up with DIMIA, sometimes with a proposal for legislative change, as the following example illustrates.

In December 2003, the Ombudsman wrote to the Secretary of DIMIA recommending that action be taken to overcome the problem that visa holders who had appealed successfully to the Migration Review Tribunal (MRT) could still end up in a disadvantaged position. For example, if the MRT had set aside a decision by DIMIA to cancel a student visa, the student may still be unable to meet the requirements for a permanent visa, because their student visa had expired before the MRT appeal process was finalised. Under the migration legislation, DIMIA cannot then grant another visa without a new application being made, yet the student may be unable to make such an application in Australia if their substantive visa has expired. The student then faces the predicament of having to leave the country in order to make a new application.

'The Minister has since approved the introduction of amending legislation.'

DIMIA acknowledged this as an issue affecting not only student visas, and accepted the need for legislative change to address the problem. The Minister has since approved the introduction of amending legislation. Until that amendment is enacted, cases of this nature may be referred to the Minister, who has a public interest discretionary power to grant a new visa.

Cancellation or refusal of visa on character grounds

A number of complainants during the year expressed frustration at the uncertainty of their visa entitlement. The complainants had each appealed successfully to the Administrative Appeals Tribunal (AAT) against a decision by a DIMIA officer to refuse or cancel their visa on character grounds. Notwithstanding the AAT decision, it is open to the Minister under s 501A of the Migration Act 1958 to refuse or cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that refusal or cancellation is in the national interest. Instances occur in which the Minister does make such a decision, and visa applicants and holders are aware of the possibility. Some have complained to the Ombudsman about the failure of DIMIA after months of delay to advise whether their case is to be referred to the Minister for consideration of cancellation or refusal under s 501(3).

The Ombudsman's office has conducted research on the general problem, and has taken up with DIMIA the importance of clarifying the administrative procedures for handling s 501 cases. We will continue to monitor the issue.

Use of search and entry powers

To facilitate compliance activity, the migration legislation confers upon authorised officers of DIMIA wide-ranging search and entry powers—commonly described as coercive powers. The exercise of these powers has been the subject of a number of complaints to this office. Issues commonly raised are whether it was necessary for a search to be conducted, and the demeanour of DIMIA officers in discharging their duties. Another issue taken up by this office in investigating the complaints is the adequacy of the records maintained by the Department. It is, in our view, a vital element in securing adherence to the law and safeguarding civil liberties that each stage of the process of executing coercive powers is properly documented. Given the significance of the issue, we will be concentrating on it during 2004–05.

Immigration detention issues

During 2003–04 there were significant changes in the number of individuals held in immigration detention, the location of the detainees, and the management of the IDFs. The Curtin and Woomera IDFs were closed in 2002 and 2003, and the Port Hedland facility was closed in June 2004. The changes in facilities were reflected in the number and types of complaints we received and investigated in relation to immigration detention.

To assist detainees to understand the alternative avenues available to them for making a complaint, we highlighted to DIMIA and GSL the benefits of information posters to summarise the complaint-management processes within IDFs. The posters should also provide details of relevant external complaint bodies, including the Commonwealth and State Ombudsmen, the Human Rights and Equal Opportunity Commission, and the Health Care Complaints Commission. It is expected that information posters will be ready for distribution early in 2004–05.

Basis of complaints

Access to medical and dental care in detention has been a regular source of complaints in previous years. This year there was a significant reduction in this type of complaint. The change to a new provider (GSL) provided an opportunity to review relevant practices and procedures. The downward trend in complaints is particularly pleasing, given that an increasing proportion of detainees have spent more than two years in detention and are more likely to require access to such services.

The number of complaints from detainees alleging assault by another detainee or a detention officer and the process in place to address such complaints is another matter of continuing concern. In May 2004 we wrote to DIMIA pointing to some of the issues thrown up by the complaints, such as confusion over where allegations of assault should be reported and delays in reporting allegations to police. We suggested a possible strategy for managing such complaints, which included providing detainees with an information card that clearly outlines the steps to take relating to allegations of assault. Discussions with DIMIA at senior levels are continuing on this issue.

We finalised 35 complaints from detainees about property during 2003–04 compared to 21 complaints in the previous year. To try to reduce and resolve complaints relating to property, we have agreed to develop an information brochure for detainees, in consultation with DIMIA, to highlight actions that detainees can take to safeguard their property. We expect to finalise this brochure early in 2004–05.

Port Hedland inquiry

Although we investigate many of the complaints received by the office, we believe that agencies should first have the opportunity to conduct their own investigation into an issue and be able to take remedial action if required. This approach, which is widely followed by complaint-handling agencies, sometimes needs restatement and explanation in the context of an inquiry that attracts public attention. Such was the case when we received a number of complaints from detainees and their advocates about the management of a major incident at the Port Hedland IDF in December 2003.

After first raising the complaints with DIMIA, we opted to allow an investigation initiated by the Department to continue. DIMIA appointed an independent investigator with considerable experience in critical-incident and use-of-force management. We played an active role in developing the terms of reference for the inquiry, defining the issues to be addressed during the investigation and undertaking ongoing monitoring of the investigation as it progressed.

'… this investigation demonstrated how collaborative action by the Ombudsman and a government agency can sometimes be the most efficient and effective way of ensuring that a serious incident is expertly investigated …'

The consultant's report was finalised in May 2004. The Ombudsman was satisfied that the report represented a thorough investigation of the incident and addressed the concerns raised with our office. DIMIA advised that action has been taken on a number of the recommendations. These included recommendations for letters of apology to some detainees, appropriate record keeping, further training for detention officers, and the referral of some incidents to State and federal police for further investigation. We will review the implementation of the recommendations in the report throughout 2004–05.

Generally, this investigation demonstrated how collaborative action by the Ombudsman and a government agency can sometimes be the most efficient and effective way of ensuring that a serious incident is expertly investigated and improvements to administrative practice implemented.

Monitoring detention facility standards

During 2002–03, Ombudsman staff conducted a review of conditions in IDFs and of how complaints were being investigated in those facilities. The review identified a range of concerns about how detention facilities were being managed by the detention service provider, and how the provider's performance was being monitored by the Department against the agreed Immigration Detention Standards.

At one stage we had foreshadowed preparing a separate report on the review, but that plan was overtaken by other events (chiefly, a change in the detention service provider and the closure of some IDFs). The information gleaned from the review was put to use in other ways described above, such as consultation with the Department about contractual conditions applying to the new detention service provider. As well, we provided significant elements of the information from the review to the Australian National Audit Office (ANAO) for its audit of the Detention Services Contract conducted during 2003–04.

The ANAO website (www.anao.gov.au) provides access to ANAO Audit Report No. 54 2003–04 Performance Audit, Management of the Detention Centre Contracts — Part A. The ANAO acknowledged that the information we provided assisted them to determine areas requiring particular scrutiny. The ANAO report was tabled on 18 June 2004 and makes a number of recommendations about monitoring the detention service provider's contract.