This bulletin clarifies some of the issues that have arisen since the last Immigration Bulletin in relation to the Ombudsman’s review of long-term detainees.

This office has now received reports on 153 long-term detainees from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). Of these reports, 113 related to detainees who had been in detention for more than two years as at 29 June 2005 out of a total of 149 persons in this category, at that time. The remaining 40 reports received were for detainees who have reached the two-year mark post 29 June 2005.

DIMIA continues to report to the Ombudsman in a timely manner. Reports are to be provided to this office by the end of 2005 for all persons who had been in detention for more than two years as at 29 June 2005, and reports for those who had reached the two-year mark post 29 June 2005, within 21 days of reaching two years.

As part of the assessment process, Ombudsman staff are continuing to conduct face-to-face interviews with people, both with those in detention and those who have been released into the community, where possible. As part of this process, we have regard to a number of documents such as:

The Ombudsman has provided seven assessments to the Minister for consideration and a statement for tabling in Parliament in respect of each of these assessments with personal details removed. In addition to these reports, the Ombudsman also provided a covering statement, setting out the broad approach he is taking to discharging his statutory obligations. A copy of this covering statement is attached (Attachment 1).

Other reports are in progress. The office is pleased that many people who are subject to our assessment have been granted various visas before their assessments are completed.

Due to the urgency of conducting these interviews and the logistical issues involved, unfortunately we have often only been able to give detainees relatively short notice about our visits. This may at times impact upon the availability of other people such as support people, migration agents and lawyers to attend the interview in person. We do include in all letters that support people are welcome to attend and we rely upon the detainee to pass on this information. Where a support person or someone acting for the detainee has approached us and asked to be present at the interview (with the authority of the detainee), we have so far accommodated those requests. We are always open to submissions and additional information to be provided to us, even after the interview has been conducted.

If people have any issues arising from the process, we encourage people to raise them with the team conducting the reviews by email - ombudsman@ombudsman.gov.au ‘Attention Detention Review Team’ or by telephone - 02 6276 0111.

Interviews

Seventy-three interviews with long-term immigration detainees have been conducted to date.

Communications with advocacy groups/community sector

We are continuing to receive many telephone calls, faxes and letters from various advocacy groups and individuals throughout Australia in support of individual detainees. As mentioned in Immigration Bulletin 3, we have tried to either telephone these representatives or write to them to acknowledge receipt of these materials. For the cases where we have not received a report on a detainee from DIMIA, we are retaining the information from advocates for consideration in the review of the individual detainee’s circumstances over the coming weeks.

We continue to focus on conducting assessments of people held in detention, but as time permits during visits to various locations, staff will meet with community groups. During a visit to Adelaide in late September, Ombudsman staff held discussions with a range of community organisations and refugee advocacy groups. At Port Augusta, staff dined with the local Rural Australians for Refugees and the Circle of Friends. At that dinner, a presentation was made by a Senior Assistant Ombudsman to the group of approximately 30 people. The role of the office in reviewing the detention circumstances of individuals detained for more than two years and a progress report was provided.

A representative from the Detention Review Team attended the Migration Review Tribunal/ Refugee Review Tribunal Community Liaison Committee meeting in Melbourne on 19 October. He also took the opportunity to inform the committee of our process and progress in conducting assessments of long-term detainees. A return trip to Melbourne is planned for later in November to meet with community groups.

In Perth, staff met with CASE for Refugees and The Coalition for Asylum-seekers, Refugees and Detainees.

Ombudsman staff also plan to meet with a number of immigration and refugee community organisations who are gathering in Canberra in late November.

Attachment 1

COVERING STATEMENT BY THE COMMONWEALTH OMBUDSMAN TO THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS CONCERNING REPORTS UNDER S 486O OF THE MIGRATION ACT 1958

  1. Section 486O of the Migration Act 1958 requires the Commonwealth Ombudsman, upon receipt of a report from the Minister’s Department (DIMIA), to provide the Minister with an assessment of the appropriateness of the arrangements for the detention of a person who has been in detention for two years or more. My first reports accompany this Statement. The purpose of this Statement is to provide some explanation as to how I have gone about discharging this function. This may assist both the Minister and those reading my reports, which are to be tabled in the Parliament.
  2. The Ombudsman’s report to the Minister is to be provided ‘as soon as practicable’ after the Ombudsman receives the Department’s report (s 486O). The operation of that requirement is affected by many considerations. I have decided that each person on whom a report is being prepared should be given an opportunity to be interviewed and to provide other information to my staff. The process of arranging an interview can itself be difficult and lengthy. For example, the person may have been released from detention and their whereabouts are unknown; an interpreter may be needed for the interview; or it may be necessary to schedule the interview at a time when other interviews are being held at the same detention facility or hospital. The interviews sometimes highlight other issues that need to be explored - for example, to arrange a further medical assessment, or to consult a friend or advocate nominated by the person interviewed.
  3. Weighing against those considerations is the importance of completing the Ombudsman’s assessment in the shortest timeframe possible, both in the interests of the person being assessed and in light of the statutory timetable. Reports are to be prepared at six monthly intervals on those who remain in detention after two years. This requirement will only be meaningful if each report has been submitted to the Minister and tabled in the Parliament before the next reporting period commences. In principle, the Ombudsman’s assessment and report to the Minister should, if practicable, be submitted within two months of receipt of the DIMIA report. This timetable may be difficult to meet in all cases in the first six-monthly reporting period. As at 29 June 2005 when this function commenced, there were 149 people who had been in detention for more than two years on whom reports were to be prepared by DIMIA for the Ombudsman no later than 29 December 2005 (s 486N(1)). During the first six months as many as 50 other people in detention will become subject to this reporting obligation. It is hoped that by 2006 an orderly and predictable reporting schedule will be in place.
  4. In the early phase of this function it may not be possible to adhere to the projected timetable if every aspect of a person’s detention is explored in great depth before a report is completed. Instead, the key issues will be highlighted, at least in the first report on a person. If the need exists for a second or subsequent report to be prepared, there may be scope for focussing on other issues or for collecting more information about a person’s detention.
  5. The first report on each person in detention has drawn heavily from the information provided to the Ombudsman by DIMIA. We could verify some but not all of that information, either independently or at an interview with the person in detention. It ispossible that there will be disagreement with some of the facts and opinions stated in my reports. Not every misstatement will be material to my assessment and recommendation, but if such is the case the issue can be taken up by my office, either separately or in another report. At any rate, a virtue of this process of assessment and reporting is that it will enable differences of fact and opinion to be aired and clarified.
  6. The preceding points are relevant in another way. At least in the preparation of the first round of reports, and perhaps thereafter, the Ombudsman will not be in a position to undertake what is commonly referred to as full merit review of the decision to refuse a person a visa of a particular class or to place them in detention. Full merit review of a decision is ordinarily a process of assembling and testing all relevant evidence, including by cross examination. Bearing that limitation in mind, my initial reports have been styled as recommendations on matters that warrant further or closer consideration by the Minister. My objective has been to highlight what to my mind are the key issues concerning the wellbeing of those in detention, the alternatives to detention, and ongoing care issues arising both in detention and in the months following a person’s release from detention.
  7. While a report is being prepared there can be a material change in the circumstances of a person’s detention. In some cases currently being reviewed the person has been released from detention during the reporting process, or other incidents have occurred that bear upon their health or welfare. This is a further reason for early completion of the reporting process, and for framing recommendations that highlight issues without being overly prescriptive. Least of all this process should not forestall a decision being made by the Minister or DIMIA that is favourable to a person, prior to my assessment being completed.
  8. The statutory requirement is for the Ombudsman to prepare ‘an assessment of the appropriateness of the arrangements for [a] person's detention’ (s 486O(1)). As that implies, a report is to be contemporaneous in its focus, and not an historical assessment of a person’s detention. The reports will have little to say, other than by way of background, about the circumstances that led to a person’s detention, or about court or tribunal proceedings initiated by the person. Equally, if a person has been released from detention by the time a report is completed, incidents that occurred during detention will only be taken up if they have an ongoing or future relevance.
  9. The Ombudsman’s report to the Minister is to include a statement that can be tabled in the Parliament in a form that does not adversely affect the privacy of any person (s 486O(5)). In some initial reports I have deleted only the name of the person, but left in much other personal information about their nationality and experience in detention. I have done so in order that those who take an interest in this process can properly understand the style of my reports to the Minister. When this process of assessment and reporting has become more familiar, it may be suitable to prepare briefer statements or summaries for tabling in the Parliament.
  10. Disclosure of a report to the person to whom it relates is another important issue. An unabridged copy will be provided to the person, but at the time that the Minister has made a decision and the report is to be tabled in the Parliament. The Ombudsman’s role in preparing a report is to supplement the normal processes otherwise occurring within the DIMIA and in courts and tribunals to decide whether a person should be in detention and the care and assistance they should receive. There is a risk, if the Ombudsman’s report is released prior to its consideration by the Minister, that those other processes will merge with and unnecessarily complicate this new process of independent assessment and reporting.
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      Bulletin 5-7 November 2005 - Progress with assessments of the circumstances of people who have remained in immigration detention for two years or more - Immigration bulletins

      This bulletin clarifies some of the issues that have arisen since the last Immigration Bulletin in relation to the Ombudsman’s review of long-term detainees.

      This office has now received reports on 153 long-term detainees from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). Of these reports, 113 related to detainees who had been in detention for more than two years as at 29 June 2005 out of a total of 149 persons in this category, at that time. The remaining 40 reports received were for detainees who have reached the two-year mark post 29 June 2005.

      DIMIA continues to report to the Ombudsman in a timely manner. Reports are to be provided to this office by the end of 2005 for all persons who had been in detention for more than two years as at 29 June 2005, and reports for those who had reached the two-year mark post 29 June 2005, within 21 days of reaching two years.

      As part of the assessment process, Ombudsman staff are continuing to conduct face-to-face interviews with people, both with those in detention and those who have been released into the community, where possible. As part of this process, we have regard to a number of documents such as:

      • a report we receive from DIMIA
      • medical summaries, where relevant, from the International Health Medical Service and Psychological Support Services (the contracted health providers to detention centres)
      • submissions to the Minister where relevant
      • Refugee Review Tribunal decisions, and Federal Court and Full Federal Court decisions, where applicable
      • any submissions received from advocates
      • as required in certain cases, DIMIA files and medical files.

      The Ombudsman has provided seven assessments to the Minister for consideration and a statement for tabling in Parliament in respect of each of these assessments with personal details removed. In addition to these reports, the Ombudsman also provided a covering statement, setting out the broad approach he is taking to discharging his statutory obligations. A copy of this covering statement is attached (Attachment 1).

      Other reports are in progress. The office is pleased that many people who are subject to our assessment have been granted various visas before their assessments are completed.

      Due to the urgency of conducting these interviews and the logistical issues involved, unfortunately we have often only been able to give detainees relatively short notice about our visits. This may at times impact upon the availability of other people such as support people, migration agents and lawyers to attend the interview in person. We do include in all letters that support people are welcome to attend and we rely upon the detainee to pass on this information. Where a support person or someone acting for the detainee has approached us and asked to be present at the interview (with the authority of the detainee), we have so far accommodated those requests. We are always open to submissions and additional information to be provided to us, even after the interview has been conducted.

      If people have any issues arising from the process, we encourage people to raise them with the team conducting the reviews by email - ombudsman@ombudsman.gov.au ‘Attention Detention Review Team’ or by telephone - 02 6276 0111.

      Interviews

      Seventy-three interviews with long-term immigration detainees have been conducted to date.

      • New South Wales - Ombudsman staff have the visited Villawood Detention Facility on three occasions and interviewed about 38 people.
      • South Australia - During late September, Ombudsman staff interviewed detainees and ex-detainees at Baxter Immigration Detention Facility, Glenside Hospital, and people in the Adelaide community. A third visit to interview people at Baxter IDF, and in the community is planned for the second week of November.
      • Victoria - Ombudsman staff visited the Maribyrnong Immigration Detention Facility in Melbourne on 19 October 2005 and interviewed one of the few long-term detainees there. A further visit is planned for the end of November to interview more detainees and to meet with a number of community agencies.
      • Western Australia - Ombudsman staff visited the Perth Immigration Detention Centre on 27 October and interviewed most of the long-term detainees. Staff also conducted interviews with people in the community, including several held in an alternative place of detention.
      • Queensland - There were a few people previously held in alternative detention arrangements in Queensland and their interviews have been conducted by telephone.

      Communications with advocacy groups/community sector

      We are continuing to receive many telephone calls, faxes and letters from various advocacy groups and individuals throughout Australia in support of individual detainees. As mentioned in Immigration Bulletin 3, we have tried to either telephone these representatives or write to them to acknowledge receipt of these materials. For the cases where we have not received a report on a detainee from DIMIA, we are retaining the information from advocates for consideration in the review of the individual detainee’s circumstances over the coming weeks.

      We continue to focus on conducting assessments of people held in detention, but as time permits during visits to various locations, staff will meet with community groups. During a visit to Adelaide in late September, Ombudsman staff held discussions with a range of community organisations and refugee advocacy groups. At Port Augusta, staff dined with the local Rural Australians for Refugees and the Circle of Friends. At that dinner, a presentation was made by a Senior Assistant Ombudsman to the group of approximately 30 people. The role of the office in reviewing the detention circumstances of individuals detained for more than two years and a progress report was provided.

      A representative from the Detention Review Team attended the Migration Review Tribunal/ Refugee Review Tribunal Community Liaison Committee meeting in Melbourne on 19 October. He also took the opportunity to inform the committee of our process and progress in conducting assessments of long-term detainees. A return trip to Melbourne is planned for later in November to meet with community groups.

      In Perth, staff met with CASE for Refugees and The Coalition for Asylum-seekers, Refugees and Detainees.

      Ombudsman staff also plan to meet with a number of immigration and refugee community organisations who are gathering in Canberra in late November.

      Attachment 1

      COVERING STATEMENT BY THE COMMONWEALTH OMBUDSMAN TO THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS CONCERNING REPORTS UNDER S 486O OF THE MIGRATION ACT 1958

      1. Section 486O of the Migration Act 1958 requires the Commonwealth Ombudsman, upon receipt of a report from the Minister’s Department (DIMIA), to provide the Minister with an assessment of the appropriateness of the arrangements for the detention of a person who has been in detention for two years or more. My first reports accompany this Statement. The purpose of this Statement is to provide some explanation as to how I have gone about discharging this function. This may assist both the Minister and those reading my reports, which are to be tabled in the Parliament.
      2. The Ombudsman’s report to the Minister is to be provided ‘as soon as practicable’ after the Ombudsman receives the Department’s report (s 486O). The operation of that requirement is affected by many considerations. I have decided that each person on whom a report is being prepared should be given an opportunity to be interviewed and to provide other information to my staff. The process of arranging an interview can itself be difficult and lengthy. For example, the person may have been released from detention and their whereabouts are unknown; an interpreter may be needed for the interview; or it may be necessary to schedule the interview at a time when other interviews are being held at the same detention facility or hospital. The interviews sometimes highlight other issues that need to be explored - for example, to arrange a further medical assessment, or to consult a friend or advocate nominated by the person interviewed.
      3. Weighing against those considerations is the importance of completing the Ombudsman’s assessment in the shortest timeframe possible, both in the interests of the person being assessed and in light of the statutory timetable. Reports are to be prepared at six monthly intervals on those who remain in detention after two years. This requirement will only be meaningful if each report has been submitted to the Minister and tabled in the Parliament before the next reporting period commences. In principle, the Ombudsman’s assessment and report to the Minister should, if practicable, be submitted within two months of receipt of the DIMIA report. This timetable may be difficult to meet in all cases in the first six-monthly reporting period. As at 29 June 2005 when this function commenced, there were 149 people who had been in detention for more than two years on whom reports were to be prepared by DIMIA for the Ombudsman no later than 29 December 2005 (s 486N(1)). During the first six months as many as 50 other people in detention will become subject to this reporting obligation. It is hoped that by 2006 an orderly and predictable reporting schedule will be in place.
      4. In the early phase of this function it may not be possible to adhere to the projected timetable if every aspect of a person’s detention is explored in great depth before a report is completed. Instead, the key issues will be highlighted, at least in the first report on a person. If the need exists for a second or subsequent report to be prepared, there may be scope for focussing on other issues or for collecting more information about a person’s detention.
      5. The first report on each person in detention has drawn heavily from the information provided to the Ombudsman by DIMIA. We could verify some but not all of that information, either independently or at an interview with the person in detention. It ispossible that there will be disagreement with some of the facts and opinions stated in my reports. Not every misstatement will be material to my assessment and recommendation, but if such is the case the issue can be taken up by my office, either separately or in another report. At any rate, a virtue of this process of assessment and reporting is that it will enable differences of fact and opinion to be aired and clarified.
      6. The preceding points are relevant in another way. At least in the preparation of the first round of reports, and perhaps thereafter, the Ombudsman will not be in a position to undertake what is commonly referred to as full merit review of the decision to refuse a person a visa of a particular class or to place them in detention. Full merit review of a decision is ordinarily a process of assembling and testing all relevant evidence, including by cross examination. Bearing that limitation in mind, my initial reports have been styled as recommendations on matters that warrant further or closer consideration by the Minister. My objective has been to highlight what to my mind are the key issues concerning the wellbeing of those in detention, the alternatives to detention, and ongoing care issues arising both in detention and in the months following a person’s release from detention.
      7. While a report is being prepared there can be a material change in the circumstances of a person’s detention. In some cases currently being reviewed the person has been released from detention during the reporting process, or other incidents have occurred that bear upon their health or welfare. This is a further reason for early completion of the reporting process, and for framing recommendations that highlight issues without being overly prescriptive. Least of all this process should not forestall a decision being made by the Minister or DIMIA that is favourable to a person, prior to my assessment being completed.
      8. The statutory requirement is for the Ombudsman to prepare ‘an assessment of the appropriateness of the arrangements for [a] person's detention’ (s 486O(1)). As that implies, a report is to be contemporaneous in its focus, and not an historical assessment of a person’s detention. The reports will have little to say, other than by way of background, about the circumstances that led to a person’s detention, or about court or tribunal proceedings initiated by the person. Equally, if a person has been released from detention by the time a report is completed, incidents that occurred during detention will only be taken up if they have an ongoing or future relevance.
      9. The Ombudsman’s report to the Minister is to include a statement that can be tabled in the Parliament in a form that does not adversely affect the privacy of any person (s 486O(5)). In some initial reports I have deleted only the name of the person, but left in much other personal information about their nationality and experience in detention. I have done so in order that those who take an interest in this process can properly understand the style of my reports to the Minister. When this process of assessment and reporting has become more familiar, it may be suitable to prepare briefer statements or summaries for tabling in the Parliament.
      10. Disclosure of a report to the person to whom it relates is another important issue. An unabridged copy will be provided to the person, but at the time that the Minister has made a decision and the report is to be tabled in the Parliament. The Ombudsman’s role in preparing a report is to supplement the normal processes otherwise occurring within the DIMIA and in courts and tribunals to decide whether a person should be in detention and the care and assistance they should receive. There is a risk, if the Ombudsman’s report is released prior to its consideration by the Minister, that those other processes will merge with and unnecessarily complicate this new process of independent assessment and reporting.