Two year detention reviews

The Ombudsman prepares an assessment report on each person held in immigration detention for two years or more. On 13 February 2008, the Minister for Immigration and Citizenship, the Hon Chris Evans MP, tabled 126 Ombudsman assessments. The Minister noted that 12 of the individuals reported on remain in immigration detention and that an additional 61 people currently in detention have been detained longer than two years.

On 12 March 2008, the Minister tabled an additional 29 assessments. The Minister noted that 13 of the individuals reported on remain in immigration detention and that an additional 48 people have been detained for longer than two years. The Minister said he was ‘deeply concerned that so many detention cases have taken so long to resolve’ and has determined to individually review each of the 61 long term cases and ‘consult with the Commonwealth Ombudsman prior to making a decision on each of these cases. I anticipate this process will be completed by the end of April 2008’.

To date the Ombudsman has sent 374 reports to the Minister and there are about 75 reports in progress.

Some of the recent assessments concern people who the Ombudsman had earlier recommended should be released from an immigration detention centre. The previous Minister had not accepted the recommendations. The recent assessments reiterate those recommendations that the Minister consider granting an appropriate visa or allow the person to be in community detention. (For examples see Report numbers 233, 235, 277, 278, 333 and 336 tabled in Parliament on 13 February 2008.) 1

Other recent assessments concern people who were placed in immigration detention following the cancellation of their visa under s 501 of the Migration Act 1958 or a deportation order being made under s 200. In some cases the person’s term of imprisonment in a correctional facility had ended; but for the visa cancellation, the person would be living freely in the community. In the Ombudsman’s view, it is difficult to justify the continued long-term detention of such a person while their immigration status is resolved. (For examples see report numbers 350, 354, 358 and 365 tabled in Parliament on 12 March 2008.)

The Ombudsman looks forward to the Minister's focus on long term detainees and to the opportunity to discuss them with the Minister.

Own motion investigations

Notification of decisions and review rights

In December 2007 the Ombudsman released the report of an own motion investigation into the Department of Immigration and Citizenship’s (DIAC’s) notification of decisions and review rights for unsuccessful visa applications (see Commonwealth Ombudsman Report No. 15|2007). The report identified areas in which DIAC could improve its notification letters and the reasons provided to visa applicants where refusal decisions are made. The report concluded that DIAC’s notification letters were not well coordinated or consistent and fell short of best practice standards.

The Ombudsman recommended that DIAC conduct a comprehensive review of its management of notification letters, to improve their quality and consistency. DIAC has accepted all the recommendations in the report and is well progressed in implementing many of them. The Ombudsman’s office will continue to monitor DIAC’s implementation of the recommendations.

Freedom of Information processing

The Ombudsman has initiated an own motion investigation into DIAC’s handling of Freedom of Information (FOI) applications and the increasing backlog of requests that are not processed within the statutory timeframe of 30 days. The investigation will examine the processing problems within DIAC, its strategies for addressing the backlog, and other reforms that could be implemented. The final report will be available on the Ombudsman website. The Ombudsman’s office continues to investigate individual complaints about FOI delays.

Other investigations

The Ombudsman will soon release an own motion report into DIAC’s administration of detention debt waiver and write off. An own motion report into DIAC’s use of the safeguards system in visa decision making is close to final draft and will also be released publicly.

Administration of visa cancellations under s 501 of the Migration Act

In February 2006 the Ombudsman published a report of an own motion investigation report into DIAC's administration of s 501 of the Migration Act (see Commonwealth Ombudsman Report No. 1|2006). DIAC has since reviewed more than 100 cancellation decisions. In some cases the cancellation decision was set aside following DIAC’s advice to the Minister that the decision was affected by legal error. In many cases it was found that the cancellation process had not afforded a visa holder the highest level of procedural fairness, as articulated in the Ombudsman's report. In some cases, the Minister made a decision to grant a person a visa. We are advised that the final report from DIAC in relation to that review of all cancellation decisions is imminent.

DIAC has taken other steps to respond to the report, including centralising the character cancellation and refusal functions to ensure greater consistency, introducing more stringent quality assurance processes, and using an interim s 501 decision-making handbook. The Ombudsman’s office has commented on draft versions of the decision-making handbook and other guidelines. Ombudsman staff also visited DIAC’s National Character Cancellation Centre in Melbourne to get an understanding of DIAC’s work practices in this area.

The finalisation of Ministerial Direction 21 and Migration Series Instruction 254, which relate to s 501 cancellations, may be affected by the review of s 501 policy settings foreshadowed by the Minister.

In response to Recommendation 3 in the Ombudsman’s Report into Referred Immigration Cases: Other Legal Issues (see Commonwealth Ombudsman Report No. 10|2007), DIAC commenced a review of unexecuted deportation orders where the subject of the deportation order is in immigration detention or in the community. We will continue to monitor DIAC’s review and its outcomes.

Referred immigration matters

Since completing in June 2007 the investigation of 247 immigration detention cases referred by the government, we have been monitoring DIAC’s implementation of the recommendations made in the individual cases. DIAC is well advanced in reviewing each case and devising a plan for responding to the issues, including compensation considerations, administrative actions, debt issues, and policy and training considerations. The Minister has asked for these cases to be resolved promptly. We will look at the outcome in each case as it is resolved by DIAC and provide any appropriate feedback.

Inspection and monitoring of DIAC’s compliance and removals activities and detention arrangements

The Ombudsman’s office has a comprehensive program in place to monitor DIAC’s compliance and removals activities and immigration detention arrangements. This is an important area of the Immigration Ombudsman function as it provides external oversight of significant DIAC powers.

Compliance and removals

The focus of the compliance and removals monitoring includes observing DIAC’s search warrant activities, monitoring airport turnaround practices, reviewing cases where people are being removed from Australia, visiting DIAC state offices, reviewing file material, providing feedback on policy issues and obtaining briefings from the department on various issues. This inspection and monitoring activity is aimed at identifying problem areas early and ensuring that DIAC’s administration in these areas is consistent with relevant statutory provisions and good administration decision-making principles.

Immigration detention visits and inspections program

We are continuing a program of inspection visits to immigration detention centres (IDCs) and other places of immigration detention. These visits aim to monitor the conditions within detention centres, the services provided to detainees by the detention services provider and whether those services comply with agreed immigration detention standards.

Visits to IDCs are increasingly being undertaken on an ‘unannounced’ basis. DIAC and GSL staff are not advised of a visit in advance nor which matters Ombudsman staff intend to assess. Recent visits have assessed the process in place for transferring individuals to a management unit and any impact of the transfer on a person’s access to services; the administration of the Purchasing Allowance Scheme; conditions in the mess in Stage 2 Villawood IDC; implementation and administration of the revised excursions policy; arrangements made for individuals to celebrate religious celebrations of significance to them; and the reception process.

DIAC Executives at the IDCs have responded positively to issues raised and suggestions made following the visits. DIAC Executives at a number of the IDCs have responded by extending their existing monitoring program. This should lead to improvements in the standard of services provided to detainees.

Ombudsman staff also attend IDCs regularly to discuss complaints with detainees. Increasingly, many of the matters raised by detainees can be resolved through discussions with the DIAC Executive on the day of a visit.

DIAC’s internal complaint-handling process

The Ombudsman’s office continues to monitor the development of DIAC’s internal complaint-handling system. Ombudsman staff recently visited DIAC’s complaint-handling unit, the Global Feedback Unit (GFU), which is based in Melbourne and has been operational for more than two years. We are progressing a review of DIAC’s internal complaint-handling system to determine if it is comprehensive and responsive in resolving complaints. Subject to the outcome of this assessment, we may in appropriate cases suggest to complainants that they take up their concerns with DIAC through the GFU in the first instance.

Community liaison

Since Bulletin No. 11, we have conducted round table meetings with community stakeholders in Brisbane and Hobart. These meetings provide the opportunity to update community stakeholders on the activities of the Immigration Ombudsman and canvas views on immigration issues. Meetings are being planned for Adelaide, Melbourne and Sydney in the upcoming months, and Darwin and Perth by mid 2008.

  1. Copies of the assessment reports tabled in Parliament on people held in Immigration detention for two years or more, and own motion investigation reports are available on the Ombudsman's website at www.ombudsman.gov.au
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      Bulletin 12-12 March 2008 - Update on Immigration matters - Immigration bulletins

      Two year detention reviews

      The Ombudsman prepares an assessment report on each person held in immigration detention for two years or more. On 13 February 2008, the Minister for Immigration and Citizenship, the Hon Chris Evans MP, tabled 126 Ombudsman assessments. The Minister noted that 12 of the individuals reported on remain in immigration detention and that an additional 61 people currently in detention have been detained longer than two years.

      On 12 March 2008, the Minister tabled an additional 29 assessments. The Minister noted that 13 of the individuals reported on remain in immigration detention and that an additional 48 people have been detained for longer than two years. The Minister said he was ‘deeply concerned that so many detention cases have taken so long to resolve’ and has determined to individually review each of the 61 long term cases and ‘consult with the Commonwealth Ombudsman prior to making a decision on each of these cases. I anticipate this process will be completed by the end of April 2008’.

      To date the Ombudsman has sent 374 reports to the Minister and there are about 75 reports in progress.

      Some of the recent assessments concern people who the Ombudsman had earlier recommended should be released from an immigration detention centre. The previous Minister had not accepted the recommendations. The recent assessments reiterate those recommendations that the Minister consider granting an appropriate visa or allow the person to be in community detention. (For examples see Report numbers 233, 235, 277, 278, 333 and 336 tabled in Parliament on 13 February 2008.) 1

      Other recent assessments concern people who were placed in immigration detention following the cancellation of their visa under s 501 of the Migration Act 1958 or a deportation order being made under s 200. In some cases the person’s term of imprisonment in a correctional facility had ended; but for the visa cancellation, the person would be living freely in the community. In the Ombudsman’s view, it is difficult to justify the continued long-term detention of such a person while their immigration status is resolved. (For examples see report numbers 350, 354, 358 and 365 tabled in Parliament on 12 March 2008.)

      The Ombudsman looks forward to the Minister's focus on long term detainees and to the opportunity to discuss them with the Minister.

      Own motion investigations

      Notification of decisions and review rights

      In December 2007 the Ombudsman released the report of an own motion investigation into the Department of Immigration and Citizenship’s (DIAC’s) notification of decisions and review rights for unsuccessful visa applications (see Commonwealth Ombudsman Report No. 15|2007). The report identified areas in which DIAC could improve its notification letters and the reasons provided to visa applicants where refusal decisions are made. The report concluded that DIAC’s notification letters were not well coordinated or consistent and fell short of best practice standards.

      The Ombudsman recommended that DIAC conduct a comprehensive review of its management of notification letters, to improve their quality and consistency. DIAC has accepted all the recommendations in the report and is well progressed in implementing many of them. The Ombudsman’s office will continue to monitor DIAC’s implementation of the recommendations.

      Freedom of Information processing

      The Ombudsman has initiated an own motion investigation into DIAC’s handling of Freedom of Information (FOI) applications and the increasing backlog of requests that are not processed within the statutory timeframe of 30 days. The investigation will examine the processing problems within DIAC, its strategies for addressing the backlog, and other reforms that could be implemented. The final report will be available on the Ombudsman website. The Ombudsman’s office continues to investigate individual complaints about FOI delays.

      Other investigations

      The Ombudsman will soon release an own motion report into DIAC’s administration of detention debt waiver and write off. An own motion report into DIAC’s use of the safeguards system in visa decision making is close to final draft and will also be released publicly.

      Administration of visa cancellations under s 501 of the Migration Act

      In February 2006 the Ombudsman published a report of an own motion investigation report into DIAC's administration of s 501 of the Migration Act (see Commonwealth Ombudsman Report No. 1|2006). DIAC has since reviewed more than 100 cancellation decisions. In some cases the cancellation decision was set aside following DIAC’s advice to the Minister that the decision was affected by legal error. In many cases it was found that the cancellation process had not afforded a visa holder the highest level of procedural fairness, as articulated in the Ombudsman's report. In some cases, the Minister made a decision to grant a person a visa. We are advised that the final report from DIAC in relation to that review of all cancellation decisions is imminent.

      DIAC has taken other steps to respond to the report, including centralising the character cancellation and refusal functions to ensure greater consistency, introducing more stringent quality assurance processes, and using an interim s 501 decision-making handbook. The Ombudsman’s office has commented on draft versions of the decision-making handbook and other guidelines. Ombudsman staff also visited DIAC’s National Character Cancellation Centre in Melbourne to get an understanding of DIAC’s work practices in this area.

      The finalisation of Ministerial Direction 21 and Migration Series Instruction 254, which relate to s 501 cancellations, may be affected by the review of s 501 policy settings foreshadowed by the Minister.

      In response to Recommendation 3 in the Ombudsman’s Report into Referred Immigration Cases: Other Legal Issues (see Commonwealth Ombudsman Report No. 10|2007), DIAC commenced a review of unexecuted deportation orders where the subject of the deportation order is in immigration detention or in the community. We will continue to monitor DIAC’s review and its outcomes.

      Referred immigration matters

      Since completing in June 2007 the investigation of 247 immigration detention cases referred by the government, we have been monitoring DIAC’s implementation of the recommendations made in the individual cases. DIAC is well advanced in reviewing each case and devising a plan for responding to the issues, including compensation considerations, administrative actions, debt issues, and policy and training considerations. The Minister has asked for these cases to be resolved promptly. We will look at the outcome in each case as it is resolved by DIAC and provide any appropriate feedback.

      Inspection and monitoring of DIAC’s compliance and removals activities and detention arrangements

      The Ombudsman’s office has a comprehensive program in place to monitor DIAC’s compliance and removals activities and immigration detention arrangements. This is an important area of the Immigration Ombudsman function as it provides external oversight of significant DIAC powers.

      Compliance and removals

      The focus of the compliance and removals monitoring includes observing DIAC’s search warrant activities, monitoring airport turnaround practices, reviewing cases where people are being removed from Australia, visiting DIAC state offices, reviewing file material, providing feedback on policy issues and obtaining briefings from the department on various issues. This inspection and monitoring activity is aimed at identifying problem areas early and ensuring that DIAC’s administration in these areas is consistent with relevant statutory provisions and good administration decision-making principles.

      Immigration detention visits and inspections program

      We are continuing a program of inspection visits to immigration detention centres (IDCs) and other places of immigration detention. These visits aim to monitor the conditions within detention centres, the services provided to detainees by the detention services provider and whether those services comply with agreed immigration detention standards.

      Visits to IDCs are increasingly being undertaken on an ‘unannounced’ basis. DIAC and GSL staff are not advised of a visit in advance nor which matters Ombudsman staff intend to assess. Recent visits have assessed the process in place for transferring individuals to a management unit and any impact of the transfer on a person’s access to services; the administration of the Purchasing Allowance Scheme; conditions in the mess in Stage 2 Villawood IDC; implementation and administration of the revised excursions policy; arrangements made for individuals to celebrate religious celebrations of significance to them; and the reception process.

      DIAC Executives at the IDCs have responded positively to issues raised and suggestions made following the visits. DIAC Executives at a number of the IDCs have responded by extending their existing monitoring program. This should lead to improvements in the standard of services provided to detainees.

      Ombudsman staff also attend IDCs regularly to discuss complaints with detainees. Increasingly, many of the matters raised by detainees can be resolved through discussions with the DIAC Executive on the day of a visit.

      DIAC’s internal complaint-handling process

      The Ombudsman’s office continues to monitor the development of DIAC’s internal complaint-handling system. Ombudsman staff recently visited DIAC’s complaint-handling unit, the Global Feedback Unit (GFU), which is based in Melbourne and has been operational for more than two years. We are progressing a review of DIAC’s internal complaint-handling system to determine if it is comprehensive and responsive in resolving complaints. Subject to the outcome of this assessment, we may in appropriate cases suggest to complainants that they take up their concerns with DIAC through the GFU in the first instance.

      Community liaison

      Since Bulletin No. 11, we have conducted round table meetings with community stakeholders in Brisbane and Hobart. These meetings provide the opportunity to update community stakeholders on the activities of the Immigration Ombudsman and canvas views on immigration issues. Meetings are being planned for Adelaide, Melbourne and Sydney in the upcoming months, and Darwin and Perth by mid 2008.

      1. Copies of the assessment reports tabled in Parliament on people held in Immigration detention for two years or more, and own motion investigation reports are available on the Ombudsman's website at www.ombudsman.gov.au