Australian Immigration Daily News

The Commonwealth Ombudsman (the Ombudsman) is required by the Migration Act 1958  to assess the appropriateness of the immigration detention arrangements for each person detained for two years or more. The Ombudsman's assessment is provided to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, along with a de-identified version, which the Minister must table in Parliament.

Recent report published by the ombudsman covers ten case studies of migrants held in detention centre.  A summary of the report is detailed in this article.

The report covers ten cases as mentioned, a particular case covers a 35-year-old man who has been in detention for 2,547 days (almost seven years).  This is now the 6^th time this case has come up before a review. The Department’s report advised that Mr X had no outstanding matters before the Department, tribunals or the courts and has been on an involuntary removal pathway since May 2015. The Ombudsman’s previous assessment recommended that this case be referred to the Minister for consideration under s 195A for the grant of a bridging visa, given the protracted nature of the man’s removal from Australia and the adverse impact of remaining in detention. On 12 September 2019 the Minister advised in a tabling statement that the Department had recently referred this case for his consideration.  The Ombudsman’s recent recommendation is that this case be expedited. The Ombudsman is concerned that the man is likely to remain in immigration detention for a prolonged period due to the protracted nature of his removal from Australia. This poses a significant risk to his health and welfare.

The second matter deals with a man who has been in Immigration detention centre for almost five and half years. Since the Ombudsman’s previous assessment, the Full Federal Court (FFC) set aside the then-Assistant Minister’s decision not to revoke the cancellation of the applicant’s visa under s 501 of the Migration Act 1958. In February 2018 the FFC remitted his case to the Department of Home Affairs (the Department) for reconsideration.

In November 2018 a delegate of the Minister decided not to revoke the decision to cancel the applicant’s visa. In February 2019 the Administrative Appeals Tribunal (AAT) affirmed the delegate’s decision. The applicant lodged an application for judicial review in the Federal Court (FC). In October 2019 the FC set aside the AAT’s decision and remitted his case to the AAT for reconsideration. The Department’s report advised that the Department would not appeal the FC judgment.

In this instance, the Ombudsman notes that the applicant has been held in immigration detention for more than five and a half years and at the time of the Department’s report, he was awaiting the outcome of the AAT’s reconsideration.

The Ombudsman also notes that at the time of the Department’s report, the applicant’s case was identified for an assessment against the guidelines under s 195A for consideration of a bridging visa.

The report states that the Ombudsman is concerned that the applicant is likely to remain in immigration detention for a prolonged period while his immigration matters remain ongoing. This poses a significant risk to his health and welfare.

Noting the significant length of time the applicant has remained in detention and the absence of any recent behavioural concerns, the Ombudsman recommends that the Department:

• Expedites its assessment of this case against the s 195A guidelines.
• Commission a contemporary independent assessment of the applicant’s risk to the community to inform the assessment of his case against the s 195A guidelines.

The next matter deals with another applicant, also a male who has been in detention centre for three and a half years.  This is the second review of the case by the Ombudsman. The Department of Home Affairs’ (the Department) report of 5 June 2019 stated that in March 2019 the authorities of the man’s home country advised it was unable to issue a travel document for the applicant because he did not provide sufficient evidence to confirm his identity and citizenship. Later that month, the authorities of the man’s home country issued a letter advising they were unable to locate any records for the applicant.

The Department’s report of 5 December 2019 advised that while the authorities of the applicant’s home country are unable to confirm the applicant’s identity, his removal remains protracted. The report also advised that the Department continues to work with the authorities of the man’s home country and the applicant to confirm his identity to secure travel documents.

Late last year, the applicant’s  case was found to meet the guidelines for referral to the Minister under s 195A. The Department’s report advised that his case will be included in a group submission of detainees from the applicant’s home country awaiting travel documents which was being prepared for the Minister’s consideration to grant bridging visas.

In this instance, the Ombudsman notes that the applicant has been held in immigration detention for a cumulative period of more than three years and has been on a removal pathway since March 2017.

The Ombudsman also notes that in September 2019 the applicant was found to meet the guidelines for referral to the Minister under s 195A. At the time of the Department’s report, a submission was being prepared to refer his case to the Minister for consideration of a bridging visa.

The Ombudsman is concerned that the applicant is likely to remain in immigration detention for a prolonged period due to the protracted nature of his removal from Australia. This poses a significant risk to his health and welfare.

Final case study refers to a man who has been in detention centre for two and a half years.  As such, this would be the Ombudsman’s first review the applicant’s circumstances. The applicant was detained under the Migration Act 1958 in September 2013 after arriving in Australia by sea.

He was transferred to a Regional Processing Country (RPC) in July 2014 and returned to Australia for medical treatment in April 2018. The Department of Home Affairs’ (the Department) report of 18 June 2019 advised that as the applicant arrived after 19 July 2013 he remains liable for transfer back to an RPC on completion of his treatment. The Department’s report advised that the applicant was found not to be a refugee by the Government of an RPC. The man sought merits review of the decision which was dismissed in October 2017.

The Department’s report also advised that in July 2018 the Minister intervened under s 197AB to allow the applicant to reside in a community placement.

The Department’s report further advised that, in light of the vulnerabilities associated with his medical conditions, the applicant will not be considered for a Final Departure bridging visa under s 195A. The International Health and Medical Services report advised that the applicant received treatment for physical and mental health concerns.

The Report notes that the applicant has been temporarily transferred to Australia for medical treatment from an RPC and, under current legal and policy settings, is subject to return to an RPC when he completes his treatment.

The applicant currently resides in the community under a residence determination, which provides him with health and welfare support. Notwithstanding his placement in the community, the Report lists that the long term and potentially indefinite detention and the uncertain nature of his immigration pathway poses to his health and welfare.