Referred immigration cases

The Ombudsman has completed the investigation of 247 immigration detention cases that were referred for investigation by the Government in 2005 and 2006.

The 247 cases relate to people who were detained by the Department of Immigration and Citizenship (DIAC) and later released on the basis that they could no longer be detained as unlawful non-citizens. An individual analysis was prepared for each case and provided to DIAC. These analyses will not be released publicly. However the systemic issues arising out of these cases have formed the basis of six consolidated publicly released reports.

The last four reports were released on 2 July 2007 and deal with 226 cases of immigration detention during the periods 1993 to 2007. The four reports deal with the following discrete categories of cases:

In the majority of these 226 cases, people were lawfully in Australia at the time of their detention and therefore had a right to remain in the community - 15 were Australian citizens. These cases again provide examples of problematic use of the s 189 detention power in the Migration Act 1958, with decisions often falling short of the relevant legislative and policy requirements.

DIAC has cooperated fully with the investigation into these matters and has accepted the recommendations outlined in the reports. The Ombudsman will monitor DIAC’s response to the individual cases and its progress in addressing the systemic issues identified in the consolidated reports. The Ombudsman acknowledges that DIAC has been working to address many of the issues identified in these and other reports for the past two years and is making significant headway in its process of reform.

The six consolidated reports highlight how administrative errors and shortcomings in public administration can have significant consequences for members of the public. Ten key lessons highlighted by the investigations into the referred immigration detention matters are the subject of a forthcoming report, Lessons for Public Administration, to be published in August 2007. The report will provide general guidance to all government agencies on practical steps that should be taken to avoid administrative error and to improve the quality of public administration. The report will be made available on the Ombudsman website.

Two year detention reviews

A milestone has been reached in the Two Year Detention Review function. It is now two years since this function commenced. The Ombudsman has provided the Minister for Immigration with 217 reports, with 199 of these having been tabled in Parliament to date. Copies of these reports and the Minister’s statements to Parliament are available on our website.

This is a continuing function. An assessment report is prepared by the Ombudsman on each person held in immigration detention for two years or more. Priority is given to the cases of families with children in detention, people in immigration detention centres, people who have a significant illness, people on temporary visas, and people with an otherwise compelling reason for an early report.

Since Bulletin No 10 of January 2007, the Minister has tabled 95 responses. More than two-thirds of the Ombudsman’s assessment reports made no recommendation, in most cases because the former detainee had received a permanent visa or, less often, had been removed.

The mental health of detainees noted in one third of the reports tabled in Parliament remains an ongoing concern. In almost every case, the detainee was diagnosed with depression during their time in detention; many also reported Post-Traumatic Stress Disorder. In nine reports, the Ombudsman made a formal recommendation concerning a detainee’s mental health, with the Minister declining to accept the recommendation made in Report No 134.

The Ombudsman made a recommendation in six cases for a waiver of the 30-month waiting period that normally applies before a person on a temporary protection visa can apply for a permanent visa. The Minister rejected the recommendation in one case, accepted the recommendation in two, and delayed his decision in three other cases.

In 10 cases, the Ombudsman also recommended that the Minister make a decision concerning a detainee before the tabling date in Parliament. The Minister rejected the recommendation in four cases.

The Ombudsman’s other recommendations included the grant of temporary or permanent visas (11 cases), a suggested alternative to detention (seven cases), the Minster make a decision concerning a detainee before the tabling date in Parliament (ten cases), and eight other recommendations specific to the particular detainee’s circumstances.

Own motion investigations

On 22 June 2007, the Ombudsman released an own motion investigation into the complaint handling processes of the Migration Agents Registration Authority (MARA). The report sets out a number of recommendations aimed at improving MARA’s complaint-handling processes in five key areas:

Both MARA and DIAC have accepted the recommendations and MARA has advised the Ombudsman that it is in the process of revising its complaint-handling processes to make them more user-friendly and efficient.

Another own motion investigation into the quality of notifications of adverse decisions and statements of reasons to visa applicants is in the final stages of review.

The Ombudsman is commencing investigations into the administration of debt waivers and debt write-offs, and jurisdictional issues regarding police responses to allegations of criminal activity in Villawood Immigration Detention Centre.

The program of monitoring DIAC’s compliance activities is also well underway. A pilot project to inspect the processes for identifying and locating unlawful non-citizens has been announced. The first stage of inspecting the process of removing people from Australia has also commenced.

Freedom of information applications

We continue to monitor DIAC’s management of freedom of information (FOI) applications. While DIAC has increased resources to deal with FOI applications, the processing of many requests still exceeds the statutory timeframes in the FOI Act. At the time of DIAC’s last report to the Ombudsman, more than 50 requests were over 12 months old.

We are aware that DIAC has recently conducted an internal audit of the management of FOI requests and it is expected that the final report will identify opportunities to streamline processes or reduce the number of FOI requests received. Recent amendments to the Migration Act, which allow individuals to have access to their international movement records without recourse to FOI, are also expected to reduce DIAC’s FOI workload.

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 the complaint raised a special area of concern in relation to DIAC’s handling of requests.

Administration of s 501 of the Migration Act

Since the release of the Ombudsman’s own motion investigation report into DIAC's administration of s 501 (February 2006) our office has liaised with DIAC regarding the implementation of the report’s recommendations. DIAC has advised that Ministerial Direction 21 and Migration Series Instruction 254 are being rewritten. They will require the approval of the Minister and Prime Minister, and are expected to be implemented in late 2007.

DIAC agreed to the recommendations relating to procedural deficiencies in the administration of s 501 and advised that a help desk has been established to provide assistance to decision makers applying the relevant legal and policy framework. DIAC also advised that centralised processing centres have been established in Melbourne for visa cancellations and Brisbane for visa refusals, with a view to improving consistency in decision making.

In response to Recommendation 8 of the report, DIAC agreed to review the cancellation decisions for individuals who were still in immigration detention and/or awaiting removal. To date, DIAC has provided details of the outcome of the review of completed individual cases and will provide a consolidated summary report once the review has been finalised.

Detention visits and inspections program

Between December 2006 and May 2007, Ombudsman staff visited and inspected the five mainland immigration detention centres, two immigration residential housing centres, and a motel where unaccompanied illegal foreign fisher minors are accommodated.

Our aim was to assess whether services are being delivered in accordance with detention standards. We examined a range of services including reception and discharge procedures, property storage and recording, complaint-handling and incident-reporting systems, kitchen and dining areas, food preparation and storage, access to health services, the provision of meaningful activities for detainees and the implementation of the Purchasing Allowance Scheme. We interviewed DIAC, detention and health services staff. At the end of each visit we provided feedback to centre management. As part of this process we also provided feedback to DIAC and the detention service provider’s national offices on selected issues.

Community liaison

Since the release of Bulletin No 10, the Ombudsman’s office has conducted round table meetings with community stakeholders in Perth and Darwin, as well as with migration agents in Adelaide. These meetings provide us with the opportunity to explain the role of the Immigration Ombudsman and canvass immigration issues of concern to community stakeholders. We wish to thank those people who gave their time and input to the meetings.

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      Bulletin 11-26 July 2007 - Progress on Immigration matters - Immigration bulletins

      Referred immigration cases

      The Ombudsman has completed the investigation of 247 immigration detention cases that were referred for investigation by the Government in 2005 and 2006.

      The 247 cases relate to people who were detained by the Department of Immigration and Citizenship (DIAC) and later released on the basis that they could no longer be detained as unlawful non-citizens. An individual analysis was prepared for each case and provided to DIAC. These analyses will not be released publicly. However the systemic issues arising out of these cases have formed the basis of six consolidated publicly released reports.

      The last four reports were released on 2 July 2007 and deal with 226 cases of immigration detention during the periods 1993 to 2007. The four reports deal with the following discrete categories of cases:

      • Data problems - dealing with cases where people were detained as a result of a data error by DIAC
      • Notification issues including cases affected by the 2003 Federal Court decision in relation to Chan Ta Srey - dealing with cases where DIAC’s visa refusal notification letters or cancellation processes were defective
      • Detention process issues - dealing with cases where DIAC’s decision to detain a person was often problematic, falling short of the relevant legislative requirements
      • Other legal issues - dealing with cases where a person was detained following a visa cancellation or refusal and released when that decision was later set aside. This report also includes cases where people, subject to a criminal deportation order, were detained and later released.

      In the majority of these 226 cases, people were lawfully in Australia at the time of their detention and therefore had a right to remain in the community - 15 were Australian citizens. These cases again provide examples of problematic use of the s 189 detention power in the Migration Act 1958, with decisions often falling short of the relevant legislative and policy requirements.

      DIAC has cooperated fully with the investigation into these matters and has accepted the recommendations outlined in the reports. The Ombudsman will monitor DIAC’s response to the individual cases and its progress in addressing the systemic issues identified in the consolidated reports. The Ombudsman acknowledges that DIAC has been working to address many of the issues identified in these and other reports for the past two years and is making significant headway in its process of reform.

      The six consolidated reports highlight how administrative errors and shortcomings in public administration can have significant consequences for members of the public. Ten key lessons highlighted by the investigations into the referred immigration detention matters are the subject of a forthcoming report, Lessons for Public Administration, to be published in August 2007. The report will provide general guidance to all government agencies on practical steps that should be taken to avoid administrative error and to improve the quality of public administration. The report will be made available on the Ombudsman website.

      Two year detention reviews

      A milestone has been reached in the Two Year Detention Review function. It is now two years since this function commenced. The Ombudsman has provided the Minister for Immigration with 217 reports, with 199 of these having been tabled in Parliament to date. Copies of these reports and the Minister’s statements to Parliament are available on our website.

      This is a continuing function. An assessment report is prepared by the Ombudsman on each person held in immigration detention for two years or more. Priority is given to the cases of families with children in detention, people in immigration detention centres, people who have a significant illness, people on temporary visas, and people with an otherwise compelling reason for an early report.

      Since Bulletin No 10 of January 2007, the Minister has tabled 95 responses. More than two-thirds of the Ombudsman’s assessment reports made no recommendation, in most cases because the former detainee had received a permanent visa or, less often, had been removed.

      The mental health of detainees noted in one third of the reports tabled in Parliament remains an ongoing concern. In almost every case, the detainee was diagnosed with depression during their time in detention; many also reported Post-Traumatic Stress Disorder. In nine reports, the Ombudsman made a formal recommendation concerning a detainee’s mental health, with the Minister declining to accept the recommendation made in Report No 134.

      The Ombudsman made a recommendation in six cases for a waiver of the 30-month waiting period that normally applies before a person on a temporary protection visa can apply for a permanent visa. The Minister rejected the recommendation in one case, accepted the recommendation in two, and delayed his decision in three other cases.

      In 10 cases, the Ombudsman also recommended that the Minister make a decision concerning a detainee before the tabling date in Parliament. The Minister rejected the recommendation in four cases.

      The Ombudsman’s other recommendations included the grant of temporary or permanent visas (11 cases), a suggested alternative to detention (seven cases), the Minster make a decision concerning a detainee before the tabling date in Parliament (ten cases), and eight other recommendations specific to the particular detainee’s circumstances.

      Own motion investigations

      On 22 June 2007, the Ombudsman released an own motion investigation into the complaint handling processes of the Migration Agents Registration Authority (MARA). The report sets out a number of recommendations aimed at improving MARA’s complaint-handling processes in five key areas:

      • consumer awareness
      • access
      • efficiency
      • fairness
      • planning and risk management.

      Both MARA and DIAC have accepted the recommendations and MARA has advised the Ombudsman that it is in the process of revising its complaint-handling processes to make them more user-friendly and efficient.

      Another own motion investigation into the quality of notifications of adverse decisions and statements of reasons to visa applicants is in the final stages of review.

      The Ombudsman is commencing investigations into the administration of debt waivers and debt write-offs, and jurisdictional issues regarding police responses to allegations of criminal activity in Villawood Immigration Detention Centre.

      The program of monitoring DIAC’s compliance activities is also well underway. A pilot project to inspect the processes for identifying and locating unlawful non-citizens has been announced. The first stage of inspecting the process of removing people from Australia has also commenced.

      Freedom of information applications

      We continue to monitor DIAC’s management of freedom of information (FOI) applications. While DIAC has increased resources to deal with FOI applications, the processing of many requests still exceeds the statutory timeframes in the FOI Act. At the time of DIAC’s last report to the Ombudsman, more than 50 requests were over 12 months old.

      We are aware that DIAC has recently conducted an internal audit of the management of FOI requests and it is expected that the final report will identify opportunities to streamline processes or reduce the number of FOI requests received. Recent amendments to the Migration Act, which allow individuals to have access to their international movement records without recourse to FOI, are also expected to reduce DIAC’s FOI workload.

      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 the complaint raised a special area of concern in relation to DIAC’s handling of requests.

      Administration of s 501 of the Migration Act

      Since the release of the Ombudsman’s own motion investigation report into DIAC's administration of s 501 (February 2006) our office has liaised with DIAC regarding the implementation of the report’s recommendations. DIAC has advised that Ministerial Direction 21 and Migration Series Instruction 254 are being rewritten. They will require the approval of the Minister and Prime Minister, and are expected to be implemented in late 2007.

      DIAC agreed to the recommendations relating to procedural deficiencies in the administration of s 501 and advised that a help desk has been established to provide assistance to decision makers applying the relevant legal and policy framework. DIAC also advised that centralised processing centres have been established in Melbourne for visa cancellations and Brisbane for visa refusals, with a view to improving consistency in decision making.

      In response to Recommendation 8 of the report, DIAC agreed to review the cancellation decisions for individuals who were still in immigration detention and/or awaiting removal. To date, DIAC has provided details of the outcome of the review of completed individual cases and will provide a consolidated summary report once the review has been finalised.

      Detention visits and inspections program

      Between December 2006 and May 2007, Ombudsman staff visited and inspected the five mainland immigration detention centres, two immigration residential housing centres, and a motel where unaccompanied illegal foreign fisher minors are accommodated.

      Our aim was to assess whether services are being delivered in accordance with detention standards. We examined a range of services including reception and discharge procedures, property storage and recording, complaint-handling and incident-reporting systems, kitchen and dining areas, food preparation and storage, access to health services, the provision of meaningful activities for detainees and the implementation of the Purchasing Allowance Scheme. We interviewed DIAC, detention and health services staff. At the end of each visit we provided feedback to centre management. As part of this process we also provided feedback to DIAC and the detention service provider’s national offices on selected issues.

      Community liaison

      Since the release of Bulletin No 10, the Ombudsman’s office has conducted round table meetings with community stakeholders in Perth and Darwin, as well as with migration agents in Adelaide. These meetings provide us with the opportunity to explain the role of the Immigration Ombudsman and canvass immigration issues of concern to community stakeholders. We wish to thank those people who gave their time and input to the meetings.