Assessments of the circumstances of people who have remained in immigration detention for two years or more

The Ombudsman has provided a total of 55 assessments to the Minister  for Immigration and Multicultural Affairs for consideration and a  statement for tabling in Parliament (with personal details removed) in  respect of each of these assessments. On 29 March 2006, the Minister  tabled a further 32 assessments relating to people in long-term  detention (16 reports have previously been tabled). The reports and the  Minister’s tabling statement are available at http://www.ombudsman.gov.au/reports/immigration-detention-review.

Each report is different, in dealing with the individual  circumstances of each person in detention. There are, however, some  general themes dealt with in the reports that will be identified in  this Bulletin. They include mental health concerns in relation to  long-term detainees, delays in removal processes, the needs of  children, and people affected by having their permanent visas cancelled  under s 501 of the Migration Act 1958. The Ombudsman draws attention to  some of these issues below.

Process delays

The Minister has acknowledged regrettable delays in a number of  cases that have led to prolonged detention for the individuals  concerned. The Ombudsman is pleased to note the Minister’s statement  that, while the delays have been regrettable, action has been taken to  avoid this in the future. Cases that illustrate such delays include  cases 19/05, 29/06, 34/06 and 48/06. The Ombudsman notes the Minister’s  decision in a number of these and other cases not to release the  individuals from detention.

Addressing mental health concerns

Whether people develop mental health problems in detention, or  detention leads to an exacerbation of previous problems, a variety of  mental health problems have been identified as a common occurrence. An  example is case No 17/05, which deals with a person who has been in  detention for some time and is currently detained in a psychiatric  hospital. The Minister’s statement notes that the Ombudsman had  recommended that the person not be returned to a detention facility.  The Minister has indicated that any return of the person to a detention  facility will be based on advice from medical health professionals  concerned with the case. In his report of 9 December 2005, the  Ombudsman had also recommended that the Minister give urgent attention  to the individual’s circumstances and noted a number of reasons for  considering the grant of a permanent visa. The Minister has indicated  that she will make a decision on this case shortly.

Other cases in which the Ombudsman noted significant mental  health concerns included 24/06, 27/06, 28/06, 31/06, 36/06 and 40/06.

The Ombudsman recommended against a number of people remaining  in immigration detention and in some cases recommended that the  Minister consider granting a permanent visa to aid the process of  recovering from a mental illness (17/05 and 40/06). He also recommended  that the Department of Immigration and Multicultural Affairs (DIMA)  consider providing some of these individuals with medical and  psychiatric assistance after they are released into the community.

The Ombudsman welcomes the Minister’s commitment to pursuing  protocols to facilitate continuity of health care as part of its future  detention health strategy when persons are granted a visa and move  between the detention environment and the general community.

Improving involuntary removal processes

In the case of 40/06, the Ombudsman highlighted the need for DIMA to  improve its processes on the involuntary removal of individuals from  Australia.

DIMA made two attempts to involuntarily remove 40/06 to his  country of origin. It stopped the first attempt when he lodged a  complaint with the United Nations Human Rights Committee, and it  aborted the second attempt when DIMA received fresh information from  the United Nations High Commissioner for Refugees (UNHCR) that he was  at risk of persecution if it continued.

The Ombudsman commented that, in the circumstances, it would  have been reasonable to expect DIMA to contact the UNHCR prior to the  second removal attempt. The Ombudsman further recommended that DIMA  review its policy in relation to notification periods for removing  detainees and is pleased to note that this has been undertaken.

Needs of the children

In 23/06 and 24/06, the Ombudsman pointed out that many immigration  detainees have family in Australia who can be substantially affected by  decisions made in their cases.

Person 24/06 has a wife and three young children who are all  Australian citizens. The report notes his concern that his involuntary  removal to Vietnam would mean that his life with his family would cease  as they would not go with him. Similarly, 23/06 has three children and  a stepchild who are Australian. A psychological report noted that the  children would be adversely affected by the removal of their father.

The Ombudsman recommended that the Minister reconsider these  similar cases in light of a number of issues, including the effect that  the removal of each man would have on his family. The Ombudsman is  pleased to note that 24/06 has been granted a Global Special  Humanitarian Visa. The impact of prolonged detention on children and  families is dealt with also in case 36/06.

Section 501 visa cancellations

In case 26/06, the Ombudsman raised the issue of visa cancellations  under s 501 of the Migration Act, as they apply to long-term permanent  residents. Under this section of the Act, non-citizens who, because of  their criminal record, do not satisfy the Minister responsible for  immigration matters that they are of good character, can be removed  from the country. As noted below, the Ombudsman has recently completed  a report into this topic.

A number of factors raised in that report are relevant to this  case, among them, that he arrived in Australia as a minor, spent his  formative years here, has strong family and other ties in the  Australian community, has limited support in Vietnam, and it seems  likely his removal would cause financial and emotional hardship to him  and his family in Australia.

Referred Immigration cases

The Report on Referred Immigration cases: Mr T was released on 23  March 2006. DIMA accepted all of the Ombudsman’s recommendations. This  is the next in a series of reports on matters referred to the Ombudsman  following the inquiry into the circumstances of the immigration  detention of Cornelia Rau, and is one of 11 cases that have been  categorised as involving mental health issues. A draft report on  another significant mental health case is nearing completion and we  expect it to be provided to DIMA for comment in the near future.

All of the investigations into the remaining mental health  cases are underway. Initial assessments indicate that, while individual  reports for each matter are being prepared, a number of the mental  health cases will be published in a composite report.

A significant number of investigations into individual cases  categorised as 'data issues' have also been completed, with the  remainder nearing completion. There have been a number of different  issues identified and these will be reported in a composite report, a  draft of which we are aiming to have completed around mid-May.

Administration of s 501 of the Migration Act 1958 as it applies to long-term permanent residents

On 9 February 2006, the Commonwealth Ombudsman released a report into DIMA’s administration of visa cancellation powers under s 501 of the Migration Act 1958 as it applies to long-term permanent residents.

Under s 501 of the Act a non-citizen with a criminal record can  be removed from Australia if they do not satisfy the Immigration  Minister or the Department that they are of good character. The  investigation focused on the impact such decisions had on those who  arrived in Australia as children, spent their formative years and all  their adult lives in Australia and who had close family and community  ties in Australia. The investigation examined whether such visa  cancellation decisions were being made to the highest standard of  procedural and substantive fairness.

The investigation highlighted many deficiencies in the content  and application of policies and procedures for cancellation of  long-term permanent residents’ visas. The outcomes for many affected  long-term permanent residents were considered to be unfair and  unreasonable.

DIMA supported, in whole or in principle, all but one of the  nine recommendations made in the report. The recommendation not  accepted by DIMA related to the use of s 501 to remove people from  Australia who DIMA would not have otherwise been able to deport under  other criminal deportation provisions of the Migration Act (because  they had resided in Australia for over ten years before committing the  offence).

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      Bulletin 8 - 29 March 2006 - Progress on Immigration matters - Immigration bulletins

      Assessments of the circumstances of people who have remained in immigration detention for two years or more

      The Ombudsman has provided a total of 55 assessments to the Minister  for Immigration and Multicultural Affairs for consideration and a  statement for tabling in Parliament (with personal details removed) in  respect of each of these assessments. On 29 March 2006, the Minister  tabled a further 32 assessments relating to people in long-term  detention (16 reports have previously been tabled). The reports and the  Minister’s tabling statement are available at http://www.ombudsman.gov.au/reports/immigration-detention-review.

      Each report is different, in dealing with the individual  circumstances of each person in detention. There are, however, some  general themes dealt with in the reports that will be identified in  this Bulletin. They include mental health concerns in relation to  long-term detainees, delays in removal processes, the needs of  children, and people affected by having their permanent visas cancelled  under s 501 of the Migration Act 1958. The Ombudsman draws attention to  some of these issues below.

      Process delays

      The Minister has acknowledged regrettable delays in a number of  cases that have led to prolonged detention for the individuals  concerned. The Ombudsman is pleased to note the Minister’s statement  that, while the delays have been regrettable, action has been taken to  avoid this in the future. Cases that illustrate such delays include  cases 19/05, 29/06, 34/06 and 48/06. The Ombudsman notes the Minister’s  decision in a number of these and other cases not to release the  individuals from detention.

      Addressing mental health concerns

      Whether people develop mental health problems in detention, or  detention leads to an exacerbation of previous problems, a variety of  mental health problems have been identified as a common occurrence. An  example is case No 17/05, which deals with a person who has been in  detention for some time and is currently detained in a psychiatric  hospital. The Minister’s statement notes that the Ombudsman had  recommended that the person not be returned to a detention facility.  The Minister has indicated that any return of the person to a detention  facility will be based on advice from medical health professionals  concerned with the case. In his report of 9 December 2005, the  Ombudsman had also recommended that the Minister give urgent attention  to the individual’s circumstances and noted a number of reasons for  considering the grant of a permanent visa. The Minister has indicated  that she will make a decision on this case shortly.

      Other cases in which the Ombudsman noted significant mental  health concerns included 24/06, 27/06, 28/06, 31/06, 36/06 and 40/06.

      The Ombudsman recommended against a number of people remaining  in immigration detention and in some cases recommended that the  Minister consider granting a permanent visa to aid the process of  recovering from a mental illness (17/05 and 40/06). He also recommended  that the Department of Immigration and Multicultural Affairs (DIMA)  consider providing some of these individuals with medical and  psychiatric assistance after they are released into the community.

      The Ombudsman welcomes the Minister’s commitment to pursuing  protocols to facilitate continuity of health care as part of its future  detention health strategy when persons are granted a visa and move  between the detention environment and the general community.

      Improving involuntary removal processes

      In the case of 40/06, the Ombudsman highlighted the need for DIMA to  improve its processes on the involuntary removal of individuals from  Australia.

      DIMA made two attempts to involuntarily remove 40/06 to his  country of origin. It stopped the first attempt when he lodged a  complaint with the United Nations Human Rights Committee, and it  aborted the second attempt when DIMA received fresh information from  the United Nations High Commissioner for Refugees (UNHCR) that he was  at risk of persecution if it continued.

      The Ombudsman commented that, in the circumstances, it would  have been reasonable to expect DIMA to contact the UNHCR prior to the  second removal attempt. The Ombudsman further recommended that DIMA  review its policy in relation to notification periods for removing  detainees and is pleased to note that this has been undertaken.

      Needs of the children

      In 23/06 and 24/06, the Ombudsman pointed out that many immigration  detainees have family in Australia who can be substantially affected by  decisions made in their cases.

      Person 24/06 has a wife and three young children who are all  Australian citizens. The report notes his concern that his involuntary  removal to Vietnam would mean that his life with his family would cease  as they would not go with him. Similarly, 23/06 has three children and  a stepchild who are Australian. A psychological report noted that the  children would be adversely affected by the removal of their father.

      The Ombudsman recommended that the Minister reconsider these  similar cases in light of a number of issues, including the effect that  the removal of each man would have on his family. The Ombudsman is  pleased to note that 24/06 has been granted a Global Special  Humanitarian Visa. The impact of prolonged detention on children and  families is dealt with also in case 36/06.

      Section 501 visa cancellations

      In case 26/06, the Ombudsman raised the issue of visa cancellations  under s 501 of the Migration Act, as they apply to long-term permanent  residents. Under this section of the Act, non-citizens who, because of  their criminal record, do not satisfy the Minister responsible for  immigration matters that they are of good character, can be removed  from the country. As noted below, the Ombudsman has recently completed  a report into this topic.

      A number of factors raised in that report are relevant to this  case, among them, that he arrived in Australia as a minor, spent his  formative years here, has strong family and other ties in the  Australian community, has limited support in Vietnam, and it seems  likely his removal would cause financial and emotional hardship to him  and his family in Australia.

      Referred Immigration cases

      The Report on Referred Immigration cases: Mr T was released on 23  March 2006. DIMA accepted all of the Ombudsman’s recommendations. This  is the next in a series of reports on matters referred to the Ombudsman  following the inquiry into the circumstances of the immigration  detention of Cornelia Rau, and is one of 11 cases that have been  categorised as involving mental health issues. A draft report on  another significant mental health case is nearing completion and we  expect it to be provided to DIMA for comment in the near future.

      All of the investigations into the remaining mental health  cases are underway. Initial assessments indicate that, while individual  reports for each matter are being prepared, a number of the mental  health cases will be published in a composite report.

      A significant number of investigations into individual cases  categorised as 'data issues' have also been completed, with the  remainder nearing completion. There have been a number of different  issues identified and these will be reported in a composite report, a  draft of which we are aiming to have completed around mid-May.

      Administration of s 501 of the Migration Act 1958 as it applies to long-term permanent residents

      On 9 February 2006, the Commonwealth Ombudsman released a report into DIMA’s administration of visa cancellation powers under s 501 of the Migration Act 1958 as it applies to long-term permanent residents.

      Under s 501 of the Act a non-citizen with a criminal record can  be removed from Australia if they do not satisfy the Immigration  Minister or the Department that they are of good character. The  investigation focused on the impact such decisions had on those who  arrived in Australia as children, spent their formative years and all  their adult lives in Australia and who had close family and community  ties in Australia. The investigation examined whether such visa  cancellation decisions were being made to the highest standard of  procedural and substantive fairness.

      The investigation highlighted many deficiencies in the content  and application of policies and procedures for cancellation of  long-term permanent residents’ visas. The outcomes for many affected  long-term permanent residents were considered to be unfair and  unreasonable.

      DIMA supported, in whole or in principle, all but one of the  nine recommendations made in the report. The recommendation not  accepted by DIMA related to the use of s 501 to remove people from  Australia who DIMA would not have otherwise been able to deport under  other criminal deportation provisions of the Migration Act (because  they had resided in Australia for over ten years before committing the  offence).