The Commonwealth and Immigration Ombudsman, Prof. John McMillan, today released three reports relating to the immigration detention of 20 people during the years 2000 to 2005.
One report concerns the immigration detention of Mr G, an Australian resident suffering from a mental illness. The other two consolidated reports relate to the investigation of 19 cases categorised as ‘mental health and incapacity’ (nine cases) and ‘children in detention’ (10 cases).
The Australian Government referred the cases to the Ombudsman in 2005 following the inquiries into the immigration detention of Ms Cornelia Rau and the wrongful removal from Australia of Ms Vivian Alvarez.
Ten of the 20 people covered in these reports were Australian citizens at the time of their detention; four were permanent residents; four were temporary visa holders; and two were unlawful non-citizens. The period spent in an immigration detention facility ranged from two to 214 calendar days.
Prof. McMillan said: ‘The reports highlight serious administrative deficiencies that existed in the Department of Immigration and Multicultural Affairs (DIMA) during the period under investigation. The main areas of concern were poor understanding of law and policy relating to immigration and citizenship, inadequate staff training, deficient record keeping, wrongful exercise of the power to detain, failure of internal monitoring and review, and delay in resolving the immigration status of those in detention. These deficiencies resulted in the wrongful detention in some cases of Australian citizens, permanent residents and lawful visa holders.’
DIMA has accepted all the recommendations for administrative improvement made in the reports. In many individual cases, the Ombudsman has made separate recommendations to DIMA for remedial action.
Prof. McMillan noted: ‘These reports should be read in the context of a substantial reform program underway in DIMA to address acknowledged problems in compliance and detention activities. The reforms include a new program of staff training through a College of Immigration; alternative community based detention arrangements; new computer systems; and a new case management system for the compliance process. The Government had referred these cases to the Ombudsman for investigation to provide a report on individual cases and to highlight systemic difficulties that may require further attention.’
‘The Ombudsman will continue to work with DIMA to ensure that compliance and detention processes fully comply with the law and take proper account of individual circumstances. As part of this reform program, the Ombudsman will monitor DIMA’s compliance and detention activities, and the implementation of reforms that are underway.’
The reports in brief:
- The report on Mr G concerns the detention of an Australian resident of East Timorese origin who suffered from chronic schizophrenia. He was detained for a period of 43 calendar days in 2002. He was released when he was later found to be a permanent resident holding an absorbed person visa since 1994. Summary …
- The report on ‘mental health and incapacity’ cases deals with nine cases in which a person was taken into immigration detention, despite being either an Australian citizen or a lawful visa holder. In many of the cases too much reliance was placed by DIMA officers on information provided by a person who was mentally unwell, or a person’s failure to provide information about their immigration status. The cases highlight the need for urgent medical assessment and treatment where there is an apparent mental health concern before a person is taken into immigration detention. Summary …
- The report on ‘children in detention’ relates to the immigration detention of 10 children. In these cases the individual circumstances and the best interests of the children concerned were not a primary consideration. Eight of these children were detained despite being Australian citizens or holders of visas that entitled them to reside lawfully within the Australian community. In nine of these cases, the detention took place within an immigration detention facility. Summary …
For further information, to arrange an interview with Prof. John McMillan, Commonwealth and Immigration Ombudsman, or to obtain hard copies of the reports contact:
Elizabeth Courtney-Frost Phone—02 6276 0133
Email—“ombudsman@ombudsman.gov.au”:mailto:ombudsman@ombudsman.gov.au
Referred Immigration Cases: Mr G (Report No 06–2006)
Analysis of case
- Mr G arrived in Australia from East Timor in September 1975 as a refugee.
- After some years in Australia he learnt that his family had been killed in East Timor; the first symptoms of his chronic schizophrenia appeared in that period.
- He was detained on 28 August 2002 at the Perth Immigration Detention Centre (IDC); at the time of detention he had been living on Fremantle streets and his schizophrenia was plainly evident.
- At the time of Mr G’s detention, DIMA knew only the date of his arrival in Australia; it was assumed, in the absence of further information, that he had subsequently become an unlawful non-citizen who had failed to regularise his immigration status.
- During Mr G’s detention DIMA explored three options for his release: removal from Australia to East Timor; grant of a bridging visa in conjunction with an application for a protection visa; recognition that he was an Absorbed Person visa holder.
- During his detention Mr G was hospitalised on two occasions.
- Mr G was ultimately assessed as the holder of an Absorbed Person Visa; as such, he was deemed, by operation of law, to have held this visa since 1994.
- Mr G was released from detention on 9 October 2002 after 43 calendar days in detention at the Perth IDC.
Major issues identified in report
- There was a lack of rigour and analysis by DIMA officials in the process leading to Mr G’s detention; for instance, the DIMA officer who detained him did not speak to him but acted on incorrect name information from the police.
- At the time of Mr G’s detention, the onus was on the person detained to prove their lawful status before they could be released; this is contrary to the Migration Act, which requires the officer detaining a person to hold a reasonable suspicion that the person in detention is an unlawful non-citizen.
- There was delay in assessing Mr G against the Absorbed Person visa criteria; the first attempt to do so was incorrect and poorly documented.
- DIMA had not made available to officers an accessible and helpful policy or guidance on assessing a person for an Absorbed Person visa.
- Due to a misunderstanding of the Privacy Act 1988, there was a failure by DIMA officers to share information among themselves and to pursue information from members of the East Timorese community.
- DIMA did not have regard to Mr G’s poor mental health when interviewing him, obtaining his fingerprints or seeking his signature on important documentation.
- There was evidence of confusion generally within the East Timorese community about the current immigration status of some East Timorese refugees who arrived in Australia in 1975 in circumstances similar of those of Mr G.
Key recommendations
- A DIMA officer should speak to a person of interest either before a person is detained by a police officer, or as soon as practicable thereafter.
- Current policy and guidance concerning the Absorbed Person visa should be revised and improved.
- Comprehensive training of officers is required, that aids recognition of mental illness and informs officers of the legal implications of a lack of mental capacity.
- DIMA should provide training to officers about the Privacy Act, the need to document and appropriately disseminate all relevant information, interviewing techniques, using interpreters, and the value of information held by detention service providers.
- DIMA should provide information to the East Timorese community in Australia about immigration issues stemming from the arrival of East Timorese refugees in Australia in 1975.
- DIMA should take steps to initiate remedial action to redress the detention of Mr G, including consideration of whether he qualifies for compensation.
Referred Immigration Cases: Mental Health and Incapacity (Report No 07–2006)
Analysis of cases
- This report analyses the detention during 2002 to 2005 of nine persons who appeared, on the face of the material originally provided to the Ombudsman by DIMA, to be in poor mental health at the time of their detention.
- All nine persons were detained under s 189 of the Migration Act, which provides that an officer must detain a person if the officer knows or reasonably suspects that the person is an unlawful non-citizen.
- Five of the persons detained were Australian citizens, three were permanent residents and one was a temporary visa holder. Eight of the people were born overseas and their different ethnicity was apparent
- Five of the persons were diagnosed as suffering from a mental health condition; one appeared to have had an acquired brain injury; two (brothers) were heavily drug affected at the time of detention; and one person seems to have had a learning difficulty or limited literacy.
- The period of detention in an immigration detention facility ranged from two to eighteen calendar days. One person was detained twice. Three of the persons were held in a State correctional facility while subject to immigration detention under s 189. One person was a juvenile at the time of his detention.
- Six people were referred to DIMA by a State or Territory police service.
Major issues identified in report
- A lawful decision under s 189 requires that an officer form a reasonable suspicion based on objectively justifiable information. In some of these cases an officer had uncritically accepted information, or the absence of information, from an unmistakably irrational or delusional person.
- There is a need for caution where a mentally ill or incapacitated person comes to DIMA’s attention; detention should not be the first response.
- People who are unable to communicate effectively due to poor mental health or incapacity are at particular risk of detention.
- On several occasions a person whose identity and lawful status had been established was nevertheless kept in detention until firm documentary proof of their identity was provided.
- DIMA officers did not recognise that severe mental illness or intoxication may rob a person of their capacity to consent to actions or sign documentation.
- There was evidence in two of the more recent cases in this investigation of a demonstrated improvement in DIMA’s release arrangements; the arrangements were sensitive to the detainees’ needs and involved liaison with appropriate support services.
- The profile of these nine cases suggests that some police services have a tendency to transfer a person to DIMA, rather than deal with the person as a policing matter, when it appears that the person’s ethnicity does not accord with the perceived ethnic profile of Australians.
- Some DIMA record keeping practices were deficient in that there was inadequate documentation of medical treatment provided to a person, and whether there was active assessment, management and review of a person’s condition.
Key recommendations
- DIMA officers need appropriate training to understand that information provided by a person who is mentally unwell or is intoxicated may not be suitable for forming a reasonable suspicion under s 189; a person in immigration detention should be released if there is no longer a reasonable basis for the suspicion that led to their initial detention.
- Where a person appears mentally unwell or intoxicated, compliance officers should seek professional advice and guidance before taking detention action.
- Other recommendations in the Report address the need for improved record keeping, review of the arrangements for referral of persons to DIMA by police services, and a review of the use of correctional facilities for immigration detention.
Referred Immigration Cases: Children in Detention (Report No 08–2006)
Analysis of cases
- This report analyses ten cases in which a child was taken into immigration detention under s 189 of the Migration Act, during 2002 to 2005.
- In nine cases the detention occurred in an immigration detention facility, and in one case the child was detained within a Residential Housing Centre. In three cases a child remained in an immigration detention facility as a visitor of their parent. The ages of the children ranged from less than one year old to 15 years old.
- In eight cases the child was an Australian citizen or lawful non-citizen at the time the child was detained. The period of time in an immigration detention facility varied from three days to 282 days.
- In one case a child was taken into detention by himself, unaccompanied by a parent.
Major issues identified
- There was a lack of understanding by DIMA officers of the citizenship legislation – in particular, failing to appreciate that a child could be an Australian citizen even though the child’s parents were unlawful non-citizens.
- There was a failure by DIMA officers to properly consider the individual circumstances of a child in deciding to place the child in detention with its parents. The decisions concerning children were not properly documented.
- There was a failure to consider the best interests of a child once in detention, to consider alternative places of detention and to regard detention as a measure of last resort.
- In one case inappropriate compliance action was taken in a school.
- Detention costs were recorded against children, contrary to the migration legislation.
- The removal action planned in some cases failed to consider the best interests of the family unit, for example, by not making care arrangements for children whose parents had been removed.
- Legislative and policy reforms that have occurred since these cases mean that children will only be detained within an immigration detention facility as a measure of last resort. The current practice is for children to be detained in an alternative place of detention or residence determination.
Key recommendations
- DIMA officers need appropriate training in citizenship law, in the need to give individual consideration to the circumstances of any person being detained under s 189, and in proper record keeping.
- A dedicated policy document relating to children should be prepared, addressing the issues identified in the report.
Date of release: 6 December 2006