CHAPTER 8How the Ombudsman helped people

Mr C arrived in Australia with his parents when he was nine years old and assumed he was an Australian citizen. He was not, and the minister cancelled his visa on character grounds under s 501 of the Migration Act after he was convicted of criminal offences. On his release from prison, he was detained in immigration detention as he was an unlawful non-citizen. He was not removed from Australia at this time as he had outstanding litigation.

Mr C was within the scope of the Ombudsman's investigation into the cancellation of visas of long-term Australian residents, which was published in February 2006. We reviewed his case as part of our statutory role of reviewing the cases of people detained for two years or more. His litigation concluded and his removal became imminent while we were conducting the review of his case.

The Ombudsman wrote to the Secretary of DIMA, asking him to delay Mr C's removal until the completion of the report on s 501 decisions, as 'it is possible that we will make recommendations that, if accepted, would change the immigration status of some of those subject to the report ... and if removed, they would lose the benefit of any changes arising from the report'. Several meetings were held with DIMA officials to explore the legal options open in this case. In December 2005, DIMA asked the minister to consider using her detention intervention powers, while Ombudsman staff continued to monitor the situation, remaining in contact with the detainee, as removal remained a possibility.

The report on the Ombudsman's review of Mr C's long-term detention was submitted to the minister in November 2005. In December 2005, Mr C was granted a Removal Pending Bridging Visa and released from detention to live with his family. Mr C is currently included in a review being conducted by DIMA in response to the Ombudsman's report on s 501 decisions, and will not be removed until that review is finalised.

Mr D complained to our office that the Migration Review Tribunal (MRT) declined to give his case a priority hearing, as he had requested. He was living in Australia and was seeking to sponsor his wife, who was pregnant and living in Cambodia. The MRT's decision not to give his case a priority hearing was likely to result in his being separated from his wife and child until some time after the birth. Tribunal policy provided that agreement to a priority hearing should be given in compelling circumstances, including those where delay might result in the separation of a child from their parent.

We found that the decision to decline priority to Mr D was made by a non-ongoing, junior officer who was not authorised to decide requests for expedited processing. Further, information concerning Mr D's probable separation from his child following the birth had not been taken into account.

The MRT promptly reconsidered the decision and apologised to Mr D. As a result of our intervention, the MRT agreed to consider Mr D's case at an earlier date.

Ms E visited family in Australia and overstayed her visitor's visa. While she was being voluntarily removed, she gave birth to her baby prematurely and was taken to hospital.

Ms E was issued with a bridging visa that allowed her to stay until the baby was well enough to travel. After some weeks the baby left hospital, but remained unfit for travel. Ms E was offered another visa, but chose to return home to care for her other children, leaving her baby in the care of her family in Australia. When she wanted to return to Australia to collect her baby, Ms E was denied a visa because she had overstayed her previous visa.

After being contacted by Ms E's brother, we ascertained that the embassy in question had not been made fully aware of Ms E's unique circumstances. Working closely with DIMA officers, we were able to ensure Ms E promptly received a visa to return to Australia to collect her baby.