The Ombudsman recently received an update on the Department of Immigration and Multicultural Affairs’ (DIMA) implementation of reforms in the administration of s 501 visa cancellations. These reforms are in part a response to the recommendations set out in the Ombudsman’s report, Administration of s 501 of the Migration Act 1958 as it applies to long-term residents, released in February 2006. The Ombudsman notes the comprehensive range of DIMA initiatives aimed at improving the management and processing of s 501 visa cancellation decisions. Some of these initiatives include:

Pending the finalisation of the new Ministerial Directions and MSI, DIMA has also taken a number of interim measures to address identified deficiencies in the administration of s 501. These include:

DIMA also advised of progress, following the Ombudsman’s report, in reviewing 100 visa cancellation decisions relating to long-term Australian residents. It is understood that the review of the cases of those currently held in an immigration detention facility should be finalised early in 2007. It is also expected that the Government will announce a response to the Ombudsman’s recommendations relating to the policy to guide the administration of s 501 as it applies to long-term Australian residents.

Two year detention reviews

On 29 November 2006, the Minister for Immigration tabled a further eight responses to assessment reports prepared by the Ombudsman on people held in detention for more than two years. A further 23 reports were tabled by the Minister on 5 December 2006. Copies of these reports, and the Minister’s statement to Parliament are available on our website.

Some of the Ombudsman’s assessment reports did not make any recommendation, as the individual in question had been removed from Australia (three cases), had left voluntarily (one case) or had been given a Temporary Protection Visa (TPV) (one case) or a Global Humanitarian visa (one case).

In five reports, the Ombudsman recommended that the Minister consider exercising her powers to waive the waiting period to be observed by the holder of a TPV before being allowed to apply for a permanent visa. Evidence before the Ombudsman indicated that the three-year waiting period was a factor in those people feeling a lack of security about their future and experiencing emotional and social problems as a consequence. In each case the person had been in immigration detention for a lengthy period and since release from detention had a continuing mental health problem, such as Post Traumatic Stress Disorder and major depression. The Ombudsman also suggested that DIMA consider providing ongoing financial and casework support for these people.

In her statement to Parliament, the Minister advised: ‘The Department’s procedure for clients released on Protection Visas is to arrange transport to the nearest capital city (if required) where the client is met by a departmental staff member who arranges attendances at Centrelink and Medicare offices and access to Torture and Trauma Counselling if required’. The Minister’s statement did not address the issue of waiving the waiting period for these people. As these people have been released from detention, they are no longer subject to any further Ombudsman report under the Migration Act 1958.

Referred immigration cases

On 6 December 2006, the Ombudsman 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 are consolidated reports relating to the investigation of 19 cases categorised as ‘mental health and incapacity’ (nine cases) and ‘children in detention’ (10 cases). These reports are available on our website.

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 that a person was detained pursuant to s 189 of the Migration Act 1958 ranged from two to 214 calendar days.

DIMA has accepted all the recommendations for administrative improvement made in the reports.

Investigation of the remaining individual cases is well underway and analyses of the individual cases are being provided to DIMA for consideration. Drafts of the consolidated reports into cases categorised as ‘data issues’ and ‘validity of notification issues’ have been prepared and we anticipate providing them to DIMA for comment early in 2007.

Detention centre inspections

The Ombudsman’s office is expanding its role in visiting detention centres. Staff visited Baxter Immigration Detention Facility on 12 and 13 December 2006. This planned visit was to inspect the operation of the facility, take complaints and to attend a Client Consultative Committee and the Community Consultative Group meetings. The visit coincided with incidents of self-harm and a protest organised by detainees. (Contrary to media reports, the Ombudsman, Prof. John McMillan, was not a member of the visiting team.) Issues raised from the visit are currently being investigated.

Own motion investigations

As reported in Immigration Bulletin 9, we are currently undertaking two investigations: the complaint handling processes of the Migration Agents Registration Authority (MARA); and the quality of notification of reasons for decision and review rights provided to refused visa applicants.

We expect to release the reports early in 2007.

Delays in processing FOI requests by DIMA

We have been aware for some time of the delays in processing FOI requests by DIMA. As reported in the Commonwealth Ombudsman Annual Report 2005 - 06, DIMA has put a number of strategies in place to manage the situation. However, the situation has not improved to the degree we expected over the past year.

We are pursuing a number of specific issues with DIMA about its processing of FOI requests and have sought more frequent reporting on progress in dealing with the backlog of cases. In the meantime, we continue to accept complaints about FOI delays and may investigate individual complaints if we consider that particular matters should be given priority or that a complaint raises a special area of concern in relation to DIMA’s handling of requests.

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      Bulletin 10-8 January 2007 - Progress on Immigration matters - Immigration bulletins

      The Ombudsman recently received an update on the Department of Immigration and Multicultural Affairs’ (DIMA) implementation of reforms in the administration of s 501 visa cancellations. These reforms are in part a response to the recommendations set out in the Ombudsman’s report, Administration of s 501 of the Migration Act 1958 as it applies to long-term residents, released in February 2006. The Ombudsman notes the comprehensive range of DIMA initiatives aimed at improving the management and processing of s 501 visa cancellation decisions. Some of these initiatives include:

      • Revising the Ministerial Directions for the character test, visa refusals and visa cancellations. The new Directions are aimed at providing clearer policy guidance for decision-makers on how to exercise the powers relating to the character provisions, including guidance on the appropriate level of consideration given to the hardship likely to be experienced by a visa holder if they are removed from Australia.
      • Developing a revised Migration Series Instruction (MSI) to provide further guidance and to ensure that the MSI’s reflect the range of changes in policy and processes.
      • Establishing a nationally consistent best practice s 501 process.

      Pending the finalisation of the new Ministerial Directions and MSI, DIMA has also taken a number of interim measures to address identified deficiencies in the administration of s 501. These include:

      • briefing case officers and delegates on the Ombudsman’s own motion report on the administration of s 501
      • the creation of new policy and procedural documentation, including a policy handbook
      • the provision of training to key DIMA staff
      • the creation of a s 501 help desk and a sensitive case register.

      DIMA also advised of progress, following the Ombudsman’s report, in reviewing 100 visa cancellation decisions relating to long-term Australian residents. It is understood that the review of the cases of those currently held in an immigration detention facility should be finalised early in 2007. It is also expected that the Government will announce a response to the Ombudsman’s recommendations relating to the policy to guide the administration of s 501 as it applies to long-term Australian residents.

      Two year detention reviews

      On 29 November 2006, the Minister for Immigration tabled a further eight responses to assessment reports prepared by the Ombudsman on people held in detention for more than two years. A further 23 reports were tabled by the Minister on 5 December 2006. Copies of these reports, and the Minister’s statement to Parliament are available on our website.

      Some of the Ombudsman’s assessment reports did not make any recommendation, as the individual in question had been removed from Australia (three cases), had left voluntarily (one case) or had been given a Temporary Protection Visa (TPV) (one case) or a Global Humanitarian visa (one case).

      In five reports, the Ombudsman recommended that the Minister consider exercising her powers to waive the waiting period to be observed by the holder of a TPV before being allowed to apply for a permanent visa. Evidence before the Ombudsman indicated that the three-year waiting period was a factor in those people feeling a lack of security about their future and experiencing emotional and social problems as a consequence. In each case the person had been in immigration detention for a lengthy period and since release from detention had a continuing mental health problem, such as Post Traumatic Stress Disorder and major depression. The Ombudsman also suggested that DIMA consider providing ongoing financial and casework support for these people.

      In her statement to Parliament, the Minister advised: ‘The Department’s procedure for clients released on Protection Visas is to arrange transport to the nearest capital city (if required) where the client is met by a departmental staff member who arranges attendances at Centrelink and Medicare offices and access to Torture and Trauma Counselling if required’. The Minister’s statement did not address the issue of waiving the waiting period for these people. As these people have been released from detention, they are no longer subject to any further Ombudsman report under the Migration Act 1958.

      Referred immigration cases

      On 6 December 2006, the Ombudsman 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 are consolidated reports relating to the investigation of 19 cases categorised as ‘mental health and incapacity’ (nine cases) and ‘children in detention’ (10 cases). These reports are available on our website.

      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 that a person was detained pursuant to s 189 of the Migration Act 1958 ranged from two to 214 calendar days.

      DIMA has accepted all the recommendations for administrative improvement made in the reports.

      Investigation of the remaining individual cases is well underway and analyses of the individual cases are being provided to DIMA for consideration. Drafts of the consolidated reports into cases categorised as ‘data issues’ and ‘validity of notification issues’ have been prepared and we anticipate providing them to DIMA for comment early in 2007.

      Detention centre inspections

      The Ombudsman’s office is expanding its role in visiting detention centres. Staff visited Baxter Immigration Detention Facility on 12 and 13 December 2006. This planned visit was to inspect the operation of the facility, take complaints and to attend a Client Consultative Committee and the Community Consultative Group meetings. The visit coincided with incidents of self-harm and a protest organised by detainees. (Contrary to media reports, the Ombudsman, Prof. John McMillan, was not a member of the visiting team.) Issues raised from the visit are currently being investigated.

      Own motion investigations

      As reported in Immigration Bulletin 9, we are currently undertaking two investigations: the complaint handling processes of the Migration Agents Registration Authority (MARA); and the quality of notification of reasons for decision and review rights provided to refused visa applicants.

      We expect to release the reports early in 2007.

      Delays in processing FOI requests by DIMA

      We have been aware for some time of the delays in processing FOI requests by DIMA. As reported in the Commonwealth Ombudsman Annual Report 2005 - 06, DIMA has put a number of strategies in place to manage the situation. However, the situation has not improved to the degree we expected over the past year.

      We are pursuing a number of specific issues with DIMA about its processing of FOI requests and have sought more frequent reporting on progress in dealing with the backlog of cases. In the meantime, we continue to accept complaints about FOI delays and may investigate individual complaints if we consider that particular matters should be given priority or that a complaint raises a special area of concern in relation to DIMA’s handling of requests.