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Chapter 6

Looking at the agencies

Immigration

Immigration menu: Introduction | Complaint handling | Own motion investigations and systemic issues | Monitoring and inspection of DIAC's detention, compliance and removal activities | Reporting on people held in immigration detention

introduction

As our 2007–08 annual report noted, while handling complaints about immigration administration continues to be a prominent part of our work, we are taking a more comprehensive and integrated approach to the review of immigration administration. We achieve this through a program of inspections of immigration detention facilities, own motion investigations into systemic issues, monitoring of compliance and removal actions, and ongoing engagement with the Department of Immigration and Citizenship (DIAC) through regular meetings and consultation on proposed initiatives. This approach has been helpful in providing early warning and promoting more speedy resolution of administrative problems.

In addition to the statutory review of two–year detention cases which commenced in 2005, in August 2008 the Minister for Immigration and Citizenship and the Ombudsman agreed that the Ombudsman should regularly review all cases where a person has been held in detention for six months or more. Our work has also broadened with a new oversight role for immigration activities on Christmas Island, which has been the central point for processing irregular maritime arrivals.

FIGURE 6.6 Department of Immigration and Citizenship approach and complaint trends, 2004–05 to 2008–09

FIGURE 6.6 Department of Immigration and Citizenship approach and complaint trends, 2004–05 to 2008–09

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Complaint handling

Changes to internal complaint–handling processes

It is usually better for an agency to be given an opportunity to address a complaint before the Ombudsman becomes involved. However, until this year the office tended to deal with a high proportion of complaints about DIAC without referring them first to the department.

DIAC's internal complaint–handling section, the Global Feedback Unit (GFU), was established in August 2005. We monitored its operations and found that, by early 2009, the GFU had matured to the point where it was appropriate to refer more complaints to it in the first instance. In general DIAC was meeting its performance standard of resolving the majority of complaints within 10 days. Consequently, in April 2009 we adopted the same approach as we follow with other agencies.

Overall this should allow for a faster and more effective outcome for people with a complaint. Consistent with our handling of complaints about other agencies, we may investigate matters that are urgent, sensitive or suggest a systemic problem without referring the person to the GFU. We continue to monitor the quality and the timeliness of DIAC's complaint handling and liaise about any issues identified.

One area of continuing difficulty is the timeliness and quality of responses to detention–related complaints, and we do not refer these to the GFU.

Complaints

In 2008–09 we received 1,459 approaches and complaints about DIAC, a 5% decrease on the 1,528 received in 2007–08. Figure 6.6 shows the number of approaches and complaints received from 2004–05 to 2008–09.

In 2008–09 the following areas of DIAC's administration were a particular focus of complaint:

The case study Delayed refund is an example of the problems that can occur for people in trying to obtain a refund of a security bond.

Delayed refund

Ms X's niece, Ms Y, wished to travel to Australia from the Philippines. In 2006 DIAC processed an application for a sponsored family visa application for Ms Y. DIAC sent Ms X (the sponsor) a letter advising that a security bond would be required as part of the visa application process. Ms X paid the security bond to DIAC.

Ms Y did not travel on that visa. In 2007 she sought and obtained a second visa for travel to Australia. The security bond lodged for the first visa application was used for the second application. Ms Y travelled to Australia, adhered to the visa conditions and returned to the Philippines.

Ms X then attempted to have DIAC refund the bond. She contacted DIAC a number of times asking about the bond, and then faxed DIAC the security bond 'refund arrangement' form in November 2007. Ms X still did not receive a response from DIAC and complained to us in August 2008.

Our investigation revealed that DIAC's records were confusing and inaccurate in places. The bond money was recorded in the first visa application, but the second visa application had no reference to it. Following our involvement DIAC resolved Ms X's complaint satisfactorily. DIAC apologised to Ms X for the problems and worked with her to correct the records on the system. DIAC also undertook to review its arrangements for processing refunds of security bonds.

In 2007–08 we received a number of complaints about the time taken to process requests made under the Freedom of Information Act 1982 (FOI Act). The Ombudsman released an own motion investigation report about DIAC's processing of FOI requests in June 2008 (Department of Immigration and Citizenship: Timeliness of decision making under the Freedom of Information Act 1982 (Report No. 6/2008)). DIAC has improved its FOI processing and this is reflected in a decrease in the number of FOI–related complaints.

Between June and October 2008 we received approximately 80 complaints from skilled migration applicants who considered that DIAC had dealt with their application unfairly. The majority of complainants were hairdressers from India and Pakistan who had applied for a skilled independent (Migrant) (Class BN) subclass 136 visa. The complainants had lodged their applications before September 2007. DIAC refused the applications on the grounds that the applicants had not met the required skill levels, even though they had received a positive skills assessment from Trades Recognition Australia (TRA), the authority responsible for setting the relevant skills standard.

Our investigation found that DIAC had added further rigour to the skills assessment process by conducting its own additional checks, and as a result had identified a high number of non–genuine claims. We found that, while it was open to DIAC to decide to refuse the applications, some improvements in the transparency of DIAC's decision making would assist future applicants for skilled migration visas.

We recommended that DIAC improve its processes and procedures in a number of areas, including:

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Own motion investigations and systemic issues

In 2008–09 the Ombudsman published three own motion investigation reports about DIAC.

In July 2008 the Ombudsman released Department of Immigration and Citizenship: The Safeguards System (Report No. 7/2008). The Safeguards System is a risk management system that DIAC uses to inform its decision makers of the types of checks or steps that need to be undertaken for particular visa applications and for applicants with certain characteristics. The investigation found that DIAC needs to strengthen its accountability framework and improve Safeguards content, currency and recordkeeping. DIAC accepted all of the Ombudsman's recommendations. In February 2009 DIAC informed us that four of the five recommendations had been fully implemented. The fifth recommendation, requiring amendments to the Migration Regulations 1994, was implemented in May 2009.

In March 2009 the Ombudsman published Use of interpreters: Australian Federal Police; Centrelink; Department of Education, Employment and Workplace Relations; and Department of Immigration and Citizenship (Report No. 3/2009). The investigation examined whether DIAC and the other agencies have clear and comprehensive policies in place to guide staff in the use of interpreters. The investigation also considered the provision of staff training, a community language scheme for multilingual staff, recordkeeping, complaint–handling mechanisms and the way in which agencies address challenges in sourcing interpreters.

The Ombudsman found that DIAC needs to improve its policies and training for staff on the use of interpreters. The report recommended that DIAC take a lead role in promoting interagency cooperation and the use of interpreter services by developing an updated Language Services Guidelines and Model for Assessing Translating and Interpreting Requirements for all government agencies. DIAC accepted the recommendation and agreed to update the guidelines.

In April 2009 the Ombudsman released an abridged version of the report Department of Immigration and Citizenship: The case of Mr W (Report No. 6/2009). The Ombudsman conducted a review of Mr W's case in response to a request from DIAC. The investigation examined the decision to detain Mr W, his place of detention, the way his torture and trauma claims were handled and his health care while in detention. Other matters considered included DIAC's assessment of his requests for ministerial intervention, his removal from Australia and the way DIAC handled complaints made on his behalf once he had departed. The report also criticised identification processes and recordkeeping. The Ombudsman made a number of recommendations, all of which were accepted by DIAC.

Three further own motion investigations were in progress as at 30 June 2009.

The first investigation focuses on DIAC's management of invalid visa applications. If a person whose visa application is invalid is not informed promptly, the person may become an unlawful non–citizen and be liable for detention, and their options for applying for other visas may be severely limited. We expect to issue a report on this investigation in July 2009.

The second investigation relates to the cancellation of visas without prior notification under s 128 of the Migration Act. Non–citizens who have been granted a visa can have that visa cancelled without notice if they are outside Australia at the time of the cancellation decision. Our investigation examines whether the powers are being used appropriately, and we expect to produce a report later in 2009.

The third investigation, due for completion in September 2009, relates to the manner by which some people in detention were released following the Federal Court decision in Sales v Minister for Immigration and Citizenship, but were subsequently re–detained under amended legislation. The investigation will focus on the information that was provided to these people about their release, the circumstances of each person's release and the manner in which they were re–detained. An example of the problem, dealt with in an Ombudsman two–year detention report (No. 517/09), concerned an allegation by a person that he had received no warning from DIAC of his re–detention, that the detention occurred abruptly in his own backyard, that he was released the following day only to be re–detained again, and that DIAC officers made enquiries of neighbours about his family circumstances.

We also continued to work with DIAC to address a number of systemic issues, including delay by DIAC in refunding security bonds and visa holders' access to Medicare benefits. Following an investigation in 2008, we concluded that both Medicare Australia and DIAC have improved their communications and processes which allow eligible DIAC clients to access benefits. The majority of complaints to the Ombudsman by DIAC clients regarding eligibility for Medicare related to misunderstandings that were able to be addressed relatively quickly. We will continue to monitor this matter.

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Monitoring and inspection of DIAC's detention, compliance and removal activities

Detention

People who come to Australia by boat and are unauthorised arrivals are currently detained and processed on Christmas Island. The detainees on the island are mainly offshore entry persons—those who entered Australia at Christmas Island or another place excluded from Australian territory for migration purposes. They cannot lodge a valid protection visa application unless the Minister personally decides to permit the application. A small number of detainees on the island are able to lodge protection visa applications and seek independent merits review by a tribunal, as they entered Australia at a point which has not been excised. Both groups of people usually make claims for refugee status.

In 2008 the Government announced changes to the way in which the claims of offshore entry persons would be processed, including the introduction of a non–statutory refugee status assessment (RSA) process. Features of the new RSA process include free migration agent assistance for asylum seekers who appear to engage Australia's international protection obligations, independent review of unfavourable RSA assessments, better procedural guidance, and oversight by the Commonwealth and Immigration Ombudsman.

The Ombudsman agreed to carry out the oversight function under the own motion powers of the Ombudsman Act 1976, and we received additional funding for this function.

During 2008–09 Ombudsman office staff visited Christmas Island four times to get a better understanding of the process, identify issues that need to be addressed, and take complaints. On these visits our staff looked at the entire immigration processing experience from arrival on the island until the point of grant of a visa or removal from Australia.

The arrivals management and subsequent health, law enforcement and immigration processes on Christmas Island involve multiple Australian Government agencies, contracted service providers, non–government organisations and legal representatives. Ombudsman office staff monitored the processes followed by DIAC and the contractors who manage detention centres (G4S), including interviews with offshore entry persons as well as bio–data collection. They also attended multi–agency meetings.

In addition, our staff observed Australian Federal Police (AFP) interviews and arrest procedures, as well as property processes involving the AFP, the Australian Customs and Border Protection Service and the Australian Quarantine and Inspection Service. Staff attended two reviews of RSA decisions by independent reviewers. These reviews are conducted afresh by people who are not DIAC employees, and include interviews with the claimants.

Ombudsman staff regularly met with detainees on Christmas Island and their legal representatives, members of the Christmas Island community and those involved in providing services and support to people who are detained at the IDC, in alternative detention and in community detention.

The visits provided Ombudsman staff with a greater understanding of the role and practices of each stakeholder and an opportunity to consider the overall integrity of the immigration process. The first two visits occurred while the old facilities were still in use, and the last two after the new Christmas Island IDC had opened.

We received more than 80 complaints from people in detention on Christmas Island. The issues investigated in these complaints included delays in access to dental treatment, the length of time taken to reach RSA decisions, requests for culturally appropriate food and clothing items, access to English classes, problems with phones in the IDC, property issues, excursion requests and the suitability of detention arrangements and accommodation.

Many of the issues raised by these complaints are systemic and stem from the limited options and resources on the island itself. We assess the complaints against the standard of services available to the greater Christmas Island community, the detention standards and national detention practices.

There are many challenges inherent in the delivery of the immigration process on Christmas Island. Not only are many of the asylum seekers traumatised by their past experiences or even the circumstances of their voyage into Australian waters, but difficulties are often exacerbated by resource limitations and the isolation of the island.

Through informal and formal mechanisms, the Ombudsman has commented on many issues including:

We have noted improvements in key areas such as:

There is scope for further improvement and the Ombudsman will continue to raise issues with DIAC as they are identified. All the agencies involved in the immigration process on Christmas Island were cooperative and forthcoming with information, and demonstrated a commitment to transparency and accountability.

Immigration detention inspections program

Our program of inspection visits to IDCs and other places of immigration detention aims to monitor the conditions within detention centres and the services provided to detainees, and to assess whether those services comply with agreed immigration detention standards. We undertake visits on an 'unannounced' basis, advising staff of DIAC and G4S of the visits approximately 30 minutes in advance.

The issues we have focused on in our inspections reflect complaints received and matters raised during client consultative meetings in the IDCs. During the year we conducted inspections at all IDCs. We provided DIAC with feedback on a range of issues, including:

In addition we carried out two announced visits to the Case Management Section at the Villawood IDC (VIDC) and in DIAC's Melbourne office to inspect case management review records.

The immigration detention standards require that each IDC have a system in place for dealing with complaints from detainees. During an unannounced visit at the VIDC in November 2008 we found that the system in place did not comply with the relevant procedures and was ineffective.

The absence of an effective complaint–handling mechanism at the VIDC is likely to have contributed to an increase in the volume of complaints received by our staff during monthly visits to the centre. In many cases the complaints raised with our staff could have been addressed simply and quickly by G4S if an effective and timely complaints mechanism had been in place. We have noted some improvements and will continue to monitor the situation.

Loss of personal property following a transfer between IDCs or within an IDC was identified in our last annual report as a common cause of complaint from people in detention. We have investigated this as a systemic issue and expect to discuss the report of our investigation with DIAC later in 2009.

Compliance and removals

We continued to actively monitor DIAC's compliance and removals functions throughout 2008–09. Ombudsman staff undertook a program of file inspections, site visits and observations of DIAC's compliance field operations. Through these monitoring activities we were able to assess the effectiveness of DIAC's policies and procedures governing the department's role in locating, identifying, detaining and removing unlawful non–citizens.

In our feedback to DIAC we have identified a number of areas for improvement including:

Our file reviews have found improvements in recordkeeping and the documentation supporting compliance operations. The tighter controls that have been implemented over warrant and non–warrant operations show that DIAC's compliance teams are responsive to the issues and concerns we have raised. During the year we also provided feedback to DIAC on the effectiveness of changes to the database for managing compliance operations.

In July 2008 the Minister for Immigration and Citizenship announced a new set of values governing the detention of unlawful non–citizens. This announcement had significant implications for DIAC's compliance and removals activities. We attended DIAC briefings and provided comment on policy development as the department implements the Minister's announcement.

Our office continues to monitor DIAC's response to the 247 immigration detention cases, which were the subject of a number of Ombudsman reports published in 2006 and 2007. In addition, we continue to review reports from DIAC of further cases where a person has been detained but later released after being determined to be lawfully in Australia.

The character test—s 501 of the Migration Act

The Migration Act provides that where a person is considered not to be of good character, DIAC can refuse their visa application or cancel their visa. In 2006 the Ombudsman investigated the impact of the provisions on long–term Australian residents. The report—Department of Immigration and Multicultural Affairs: Administration of s 501 of the Migration Act 1958 as it applies to long–term residents (Report No. 1/2006)—made a range of recommendations designed to improve the processes and legislation in relation to this provision. DIAC accepted the recommendations and took steps to implement them.

We have continued to monitor the administration of the provisions and the progress of implementation of the recommendations. It is pleasing to report that in June 2009 the Minister issued revised guidelines for the administration of the provisions which incorporate many of the Ombudsman's recommendations. In particular, the guidelines require decision makers to give favourable consideration to a person who arrived in Australia as a minor and has spent their formative years here.

Our review of individuals in detention has also established that in recent months the Minister has agreed to release some people into the community who have had their visa cancelled under the character test. They have been advised that they will be considered for a permanent visa after spending two years in the community, giving them the opportunity to demonstrate that they are of good character.

We investigated a number of complaints during the year which involved the cancellation of visas where the person had arrived in Australia as a minor and had established ties in the community. The case study Poor submissions illustrates one such investigation.

Poor submissions

Mr Z approached our office expressing his frustration about the fact that his visa had been cancelled and re–enlivened a number of times under the provisions of the character test. At the time Mr Z raised his concerns he was serving a sentence in a correctional centre. Mr Z had migrated to Australia with his parents in 1973 when he was three.

The Minister cancelled Mr Z's visa in December 2000. Our review of DIAC's file identified a number of deficiencies in the DIAC submission to the Minister which resulted in that decision. In our view neither Mr Z nor his family had an adequate opportunity to present reasons that would support a decision not to cancel his visa. Therefore the processes failed to meet natural justice requirements. In addition, when DIAC reviewed the cancellation process in 2007, the submission to the Minister was incomplete.

We raised our concerns with DIAC. We requested that DIAC revise the submission and refer the matter to the Minister again so that he could decide whether to exercise his public interest powers and grant Mr Z a visa so that he could remain in Australia.

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Reporting on people held in immigration detention

Under the Migration Act the Ombudsman is required to review the cases of people held in immigration detention for two years or more. Section 486N of the Act requires DIAC to provide the Ombudsman with a report within 21 days of a person having been in detention for two years. If the person remains in detention DIAC must provide new reports to the Ombudsman at six–monthly intervals.

The Ombudsman provides the Minister for Immigration and Citizenship with an assessment of the appropriateness of the person's detention arrangements under s 486O of the Act.

The number of cases which have been the subject of repeated consideration by the Ombudsman over several years has diminished. In announcing a new set of immigration detention values in July 2008, the Minister identified three groups as being subject to mandatory detention:

Where a case has not fallen clearly into any of these groups the Ombudsman has requested that the Minister review whether continuing detention is consistent with the immigration detention values.

Recurring issues in our preparation of s 486O reports have been:

Table 6.2 shows that DIAC provided 84 reports under s 486N during 2008–09, just under half the number provided in 2007–08. The table also shows the number of s 486O reports the Ombudsman provided to the Minister. The Minister tabled 116 reports in Parliament.

TABLE 6.2 Reports under s 486N and s 486O of the Migration Act, 2008–09

 

Report on person*

 

1st

2nd

3rd

4th

5th

6th

7th

8th

9th

Total

s 486N reports received from DIAC

31

17

11

14

2

3

1

4

1

84

s 486O reports sent to the Minister

51

24

15

15

2

3

6

4

–

120

* The first report is after a person has been in detention for two years, and subsequent reports are made every six months: some reports may be combined.

The case studies Daughter lost and Work rights show some of the facets of our work in this area.

In his 'New Directions' policy statement of July 2008 the Minister for Immigration announced 'the Department will have to justify why a person should be detained. Once in detention a detainee's case will be reviewed by a senior departmental official every three months to certify that the further detention of the individual is justified'.

Reflecting the Minister's New Directions, DIAC and the Ombudsman agreed that DIAC would provide a report to the Ombudsman every six months while a person is detained and that the Ombudsman would report back to the Secretary of DIAC on the appropriateness of the person's detention arrangements. The Ombudsman would provide a consolidated report to the Minister on a regular basis. The new review process runs parallel to the statutory process whereby the Ombudsman reports to the Minister on detentions of more than two years. In practical terms the new non–statutory review regime provides faster feedback from the Ombudsman to DIAC and more frequent external scrutiny of individual detention cases.

DIAC provided the first report to the Ombudsman in April 2009. Reports have covered people detained for periods from six months to 18 months, and the Ombudsman has provided a report on a number of cases to the Secretary of DIAC.

Daughter lost

Mr A was an Iranian citizen who was detained for four years and four months from 2001 to 2005. While he was detained with his daughter in Baxter IDC there were allegations of sexual abuse that were investigated and dismissed. Subsequently his daughter was removed from Australia without his knowledge. The Ombudsman's report no. 516/09 under s 486O of the Migration Act noted that Mr A had been deceived into allowing DIAC staff to take his daughter from the IDC; that DIAC had proceeded with the removal contrary to its own legal advice; that DIAC had ignored advice that Mr A and his daughter should be transferred from the IDC at the earliest opportunity; that the removal had wrongly been recorded as having taken place with the custodial parent's consent; and that DIAC staff may have breached the Australian Public Service Code of Conduct.

The Ombudsman's report recommended that DIAC, through internal review, reflect on the case and use it to identify weaknesses or gaps in its policy and procedures. The report also recommended that DIAC should assist the daughter's migration to Australia to be reunited with her father and that an apology be sent to Mr A and his daughter. The Ombudsman formally drew the attention of the Secretary of DIAC to a possible breach of the Code of Conduct as a result of DIAC staff giving misleading advice to Mr A.

Mr A was granted a permanent protection visa in April 2008.

In his statement to Parliament when the report was tabled in May 2009, the Minister remarked that the report was most disturbing and highlighted the adverse impact of long–term detention on both the physical and mental health of detainees like Mr A and his child. The Minister noted that the policy of this government was not to hold children in immigration detention centres.

The Minister noted that an internal management review of Mr A's case had commenced and that a letter of apology had been sent to Mr A and would be sent to his daughter. He acknowledged that there may be a case to compensate Mr A and his daughter, and asked DIAC to pro–actively assist Mr A's daughter and ex–wife to obtain a visa to migrate to Australia should they wish to do so.

 

Work rights

Mr B was detained in April 2006 after being located as a visa over–stayer. He was released on a bridging visa in April 2008.

In May 2007 Mr B was diagnosed with an adjustment disorder, and in April 2008 he was provisionally diagnosed with bipolar affective disorder. Conflicting independent medical assessments were made in June and July 2008, which diagnosed post–traumatic stress disorder, major depression and anxiety, but not bipolar disorder. Mr B told us that prior to being detained, he had never experienced any mental health issues.

Mr B's visa conditions did not allow him to study, work or claim benefits and at the time of the Ombudsman's review, he survived on support from a rural charity. The Ombudsman recommended that DIAC provide Mr B with a visa that allowed him work rights until his immigration status was resolved. In November 2008 Mr B was granted work rights. He remained on a bridging visa at the end of June 2009.

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