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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1000872-O2, 1002443-O3, 1002558-O3, 1002679-O2, 1002758-O2, 1002804-O2, 1002932-O2, 1003022-O1, 1003034-O1, 1003121-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 15 of 2020


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Australian Government Department of Home Affairs

Assessments by the Commonwealth Ombudsman, under section 486O of the Migration Act 1958, for Tabling in Parliament

No. 15 / 2020

Personal identifier: 1000872-O2, 1002443-O3, 1002558-O3, 1002679-O2, 1002758-O2, 1002804-O2, 1002932-O2, 1003022-O1, 1003034-O1, 1003121-O. .

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. The de-identified assessments are available in this publication.

The Minister's response to the recommendations contained in the assessments is formatted as a Statement to Parliament and must also be tabled in Parliament. Once the Minister’s Statement to Parliament has been tabled, it is published on the Commonwealth Ombudsman's website at www.ombudsman.gov.au

The Ombudsman assesses the immigration detention arrangements for each person, after reviewing reports provided by the Department of Home Affairs. The Ombudsman may also consider any other relevant information including information provided by the person and/or their advocates.

All long-term immigration detention cases receive thorough consideration by the Ombudsman.

COMMONWEALTH

OMBUDSMAN 0

Our ref: 486N-1000872-02

2-3 March 2020

The Hon Alan Tudge MP

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Parliament House CANBERRA ACT 2600

Dear Minister

Assessments under s 4860 of the Migration Act 1958

In accordance with s 4860 of the Migration Act 1958 (the Act) I am forwarding my assessment of 10 cases on the schedule (Attachment A) relating to 13 individuals who fall within the reporting and assessment obligation imposed by Part 8C of the Act.

My Office has assessed the appropriateness of the immigration detention arrangements of the 10 cases on the schedule and made six recommendations in relation to three cases.

The Act also requires that I prepare these de-identified statements for tabling in Parliament.

As part of this assessment my Office reviewed information relating to each individual's case progression, detention placement, legal matters and health and welfare. When required, further information was requested under s 486Q of the Act or s 8 of the Ombudsman Act 1976.

Yours sincerely

Michael Manthorpe PSM Commonwealth Ombudsman

Influencing systemic improvement in public administration

GPO Box 442, Canberra ACT 2601 • Phone 1300 362 072 • ombudsman.gov.au

Attachment A

Schedule Page 1

SCHEDULE

Assessments of people placed in immigration detention for more than two years

When coming to this assessment, the Office reviewed information relating to each individual’s case progression, detention placement, legal matters and health and welfare. When required, further information was requested under s 486Q of the Act or s 8 of the Ombudsman Act 1976.

No Ombudsman ID Recommendations Name No. of

People Year of birth Days in

detention1 Detention status2

Date of 486N report Date last assessment

tabled

1 1000872-O2 N Mr X 1 1983 1,465 Visa reinstated 17 July 2019 12 September 2019

2 1002443-O3 N Mr X 1 1981 1,828 CD 9 July 2019 and 10 January 2020 12 September 2019

3 1002558-O3 2 Mr X 1 1977 1,825 IDF 24 June 2019 and 22 December 2019 31 July 2019

4 1002679-O2 N Mr X

Ms X (wife) Miss X (daughter) Miss X (daughter)

4 1982

1985 2012 2015

1,655 1,655 1,655 1,540

CD CD CD CD

28 May 2019 and 2 December 2019 12 September 2019

5 1002758-O2 N Mr X 1 1978 1,643 IDF 12 June 2019 and 9 December 2019 12 September 2019

6 1002804-O2 N Mr X 1 1996 1,470 CD 23 May 2019 and 2 December 2019 12 September 2019

7 1002932-O2 N Mr X 1 1964 1,277 IDF 28 June 2019 and 27 December 2019 12 September 2019

8 1003022-O1 N Mr X 1 1974 1,098 IDF 17 June 2019 and 15 December 2019 12 September 2019

9 1003034-O1 2 Mr X 1 1994 1,095 CD 16 July 2019 and 10 January 2020 12 September 2019

10 1003121-O 2 Mr X 1 1991 897 IDF 6 June 2019 and 20 November 2019 First Assessment

1 At date of the Department’s latest report. 2 Immigration Detention Facility (IDF), Community Placement (CD), Visa reinstated.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1000872-O2

This is the fourth s 486O assessment for Mr X who was in immigration detention for a cumulative period of more than four years. Mr X’s visa was reinstated following court proceedings and he was released from detention in December 2019.

Ombudsman assessment

Mr X’s visa was cancelled in July 2011 under s 501 of the Migration Act 1958 because he was sentenced to a term of imprisonment. Three weeks later he was detained on his release from a correctional facility.

In November 2013 the Administrative Appeals Tribunal set aside the cancellation decision. Mr X’s visa was reinstated and he was released from detention.

The Department of Home Affairs’ (the Department) report of 17 July 2019 advised that Mr X was re-detained in October 2017 after the cancellation of his visa following further convictions.

Mr X’s application for judicial review in the Federal Court was dismissed. He appealed the decision and in June 2019 the Full Federal Court (FFC) reserved its judgment.

In December 2019 the FFC set aside the cancellation decision. Mr X’s visa was then reinstated and he was released from detention.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1002443-O3

This is the fourth s 486O assessment for Mr X who has been in immigration detention for a cumulative period of more than five and a half years.

Ombudsman assessment

Mr X was transferred to a Regional Processing Country (RPC) in August 2013 and returned to Australia for medical treatment in August 2014.

The Department of Home Affairs’ (the Department) report of 10 January 2020 advised that as Mr X 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 Mr X was found to be a refugee by the Government of an RPC.

The Department’s report further advised that, because of the vulnerabilities associated with his medical condition, Mr X will not be considered for a Final Departure Bridging visa under s 195A of the Migration Act 1958.

The International Health and Medical Services report advised that Mr X was monitored and received treatment as required for his pre-existing conditions.

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

Mr X is currently residing in the community under a residence determination, which provides him with health and welfare support. Notwithstanding his placement in the community, the Ombudsman is concerned about the risk long term and potentially indefinite detention and the uncertain nature of his

immigration pathway poses to Mr X’s health and welfare.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1002558-O3

This is the fourth s 486O assessment for Mr X who has been in immigration detention for a cumulative period of more than five years.

Ombudsman assessment

Mr X was detained under the Migration Act 1958 in July 2013 after arriving in Australia by sea. He was released from detention on a bridging visa in August 2013. Mr X was convicted of a criminal offence in March 2014 and received a prison sentence. He was re-detained in February 2015 on release from a correctional facility.

Mr X was found to be owed protection in July 2016 after he lodged a Safe Haven Enterprise visa (SHEV) application.

In July 2017 a delegate of the Minister refused Mr X’s SHEV application under s 501. In October 2017 the Administrative Appeals Tribunal (AAT) set aside the decision and substituted it with a decision that the discretion to refuse Mr X’s SHEV application under s 501(1) not be exercised.

The Department of Home Affairs’ (the Department) report of 24 June 2019 advised that in April 2018 the Minister indicated that he would consider using his personal power under s 501A(2) to refuse Mr X’s SHEV application.

The Department’s report advised that Mr X was issued a Notice of Intention to Consider Refusal of his SHEV application under s 501A(2) in July 2018. Mr X provided responses in August 2018 and April 2019.

The Department’s report of 22 December 2019 advised that the Minister set aside the AAT’s decision and refused Mr X’s SHEV application under s 501A(2) in September 2019. Mr X lodged an application for judicial review in the Federal Court in October 2019. The matter was scheduled for hearing in March 2020.

The Department’s report further advised that Mr X remains in an immigration detention facility because he requires ministerial intervention to be granted a bridging visa or community placement.

Ombudsman Recommendation

The Ombudsman notes that Mr X has been held in immigration detention for a cumulative period of more than five years and, at the time of the Department’s recent report, was awaiting the outcome of judicial review.

The Ombudsman notes that Mr X’s case has not been assessed against the s 195A guidelines for consideration of a bridging visa since July 2016.

The Ombudsman is concerned Mr X 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 Mr X has remained in detention and the absence of any recent behavioural or security concerns, the Ombudsman recommends that the Department:

1. Assesses Mr X’s case against the s 195A guidelines for referral to the Minister for consideration of a bridging visa, as a matter of priority.

2. Commissions a contemporary independent assessment of Mr X's risk to the community to inform the Minister’s decision, as part of any referral to the Minister for consideration of a bridging visa under s 195A.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Under s 486O of the Migration Act 1958

Name Mr X and family

Ombudsman ID 1002679-O2

This is the third s 486O assessment for Mr X and his family who have remained in immigration detention for a cumulative period of more than four and a half years.

Ombudsman assessment

Mr X, Ms X and their eldest child were transferred to a Regional Processing Country (RPC) in August 2014 and returned to Australia for medical treatment in May 2015. Their two younger children were born in Australia following their temporary transfer. Their youngest child is not yet subject to reporting under s 486N of the Migration Act 1958.

The Department of Home Affairs’ (the Department) report of 28 May 2019 advised that as the family arrived after 19 July 2013 they remain liable for transfer back to an RPC on completion of their treatment.

The Department’s report advised that the family was found to be refugees by the Government of an RPC.

The report also advised that, while they have children who are not yet attending school, the family will not be considered for Final Departure bridging visas under s 195A.

The International Health and Medical Services report advised that the family received treatment for various conditions but no concerns were raised.

The Ombudsman notes that Mr X and his family have been temporarily transferred to Australia for medical treatment from an RPC and, under current legal and policy settings, they are subject to return to an RPC when they complete their treatment.

The family is currently residing in the community under a residence determination, which provides them with health and welfare support. Notwithstanding Mr X and his family’s placement in the community, the Ombudsman is concerned about the risk long term and indefinite detention and the uncertain nature of their immigration pathway poses to the family’s health and welfare.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1002758-O2

This is the third s 486O assessment for Mr X who has been in immigration detention for a cumulative period of more than four and a half years.

Ombudsman assessment

Since the Ombudsman’s previous assessment, the Department of Home Affairs (the Department) has continued to work with the authorities of Country A to verify Mr X’s identity and obtain a travel document for him.

The Department’s report of 9 December 2019 advised that Mr X remains on an involuntary removal pathway. The report advised that Mr X’s removal has become protracted because of the difficulties confirming his identity and his unwillingness to cooperate with the removal process.

The Department’s report advised that in November 2019 Mr X’s case was referred for an assessment against the guidelines under s 197AB of the Migration Act 1958 for consideration of a community placement.

The International Health and Medical Services report stated that Mr X was monitored for pre-existing conditions.

The Ombudsman notes the government’s duty of care to detainees and is concerned about the serious risk prolonged immigration detention poses to their physical and mental health.

The Ombudsman notes that Mr X has been on a removal pathway since 2015 and there are delays with progressing his removal because of difficulties confirming his identity and his unwillingness to cooperate.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1002804-O2

This is the third s 486O assessment for Mr X who has been in immigration detention for a cumulative period of more than four years.

Ombudsman assessment

Mr X was transferred to a Regional Processing Country (RPC) in February 2014 and returned to Australia for medical treatment in June 2016.

The Department of Home Affairs’ (the Department) report of 23 May 2019 advised that as Mr X 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 Mr X was found to be a refugee by the Government of an RPC.

The Department’s report of 2 December 2019 advised that, because of the vulnerabilities associated with his medical conditions, Mr X will not be considered for a Final Departure bridging visa under s 195A of the Migration Act 1958.

The International Health and Medical Services report advised that Mr X was monitored and received treatment as required for his pre-existing conditions.

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

Mr X is currently residing in the community under a residence determination, which provides him with health and welfare support. Notwithstanding his placement in the community, the Ombudsman is concerned about the risk long term and indefinite detention and the uncertain nature of his immigration pathway poses to Mr X’s health and welfare.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1002932-O2

This is the third s 486O assessment for Mr X who has been in immigration detention for more than three and a half years.

Ombudsman assessment

Mr X arrived in Australia with his parents in 1971 holding a permanent entry permit. Following legislative changes in September 1994, he was considered to hold a permanent visa.

In June 2016 Mr X’s visa was mandatorily cancelled under s 501 of the Migration Act 1958 because he had a substantial criminal record. Seven days later he was detained on release from a correctional facility.

The Department of Home Affairs’ (the Department) report of 28 June 2019 advised that Mr X’s criminal offending dates back to 1987. In October 2015 Mr X was convicted of multiple criminal offences. He was sentenced to a term of imprisonment and ordered to complete community service on his release.

In July 2016 Mr X lodged a request for revocation of the cancellation of his visa. In April 2017 the then-Assistant Minister decided not to revoke the decision to cancel Mr X’s visa.

Mr X lodged an application for judicial review in the Federal Court (FC). In November 2017 the FC set aside the decision and remitted his case to the Department for reconsideration.

The Department’s report of 27 December 2019 advised that in August 2018 the then-Assistant Minister again decided not to revoke the mandatory cancellation of Mr X’s visa. Mr X lodged an application for judicial review in the FC. The report advised that submissions were heard in August 2019 and the FC reserved its judgment.

The Department’s report advised that Mr X remains in an immigration detention facility because s 501E prevents him from lodging valid bridging visa applications.

The Ombudsman notes the government’s duty of care to detainees and is concerned about the serious risk prolonged immigration detention poses to their physical and mental.

The Ombudsman notes that Mr X remains in detention because his visa was mandatorily cancelled under s 501 and he is considered a risk to the community due to his criminal history. At 27 December 2019 Mr X was awaiting the outcome of judicial review.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1003022-O1

This is the second s 486O assessment for Mr X who has been in immigration detention for a cumulative period of more than three years.

Ombudsman assessment

Mr X arrived in Australia in June 1999 and was granted a visa on arrival.

Mr X’s criminal history in Australia commenced within a few months of his arrival. He has received multiple fines, probation orders and terms of imprisonment.

In December 2017 a delegate of the Minister cancelled Mr X’s visa under s 116 of the Migration Act 1958. He was detained the same day he was released on parole after being convicted of a criminal offence. Mr X sought merits review of the decision, then he sought Federal Circuit Court (FCC) review of the Administrative Appeals Tribunal decision. The FCC dismissed the matter in February 2019.

Mr X filed an application in the Federal Court in March 2019 seeking an extension of time to appeal the FCC decision of February 2019. In November 2019 the matter was adjourned. The Department of Home Affairs’ (the Department) recent report of 15 December 2019 advised that a hearing would be fixed in

February 2020.

The Department’s report advised that Mr X is not prevented from lodging valid bridging visa applications and he would be required to meet certain criteria at the time a delegate considers an application.

The Ombudsman’s previous assessment recommended that Mr X be transferred to Facility Z to be closer to his family and support network. On 12 September 2019 the Minister advised that the Department had made arrangements to facilitate the transfer.

The International Health and Medical Services report stated that Mr X was monitored and received treatment as required for his pre-existing conditions.

The Ombudsman notes the government’s duty of care to detainees and is concerned about the serious risk prolonged immigration detention may pose to their physical and mental health.

The Ombudsman notes that Mr X is not barred from lodging valid bridging visa applications and, at 15 December 2019, was awaiting the outcome of judicial review.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1003034-O1

This is the second s 486O assessment for Mr X who has been in immigration detention for a cumulative period of more than three years.

Ombudsman assessment

Mr X was transferred to a Regional Processing Country (RPC) in October 2013 and returned to Australia for medical treatment six days later.

The Department of Home Affairs’ (the Department) report of 16 July 2019 advised that as Mr X 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 Mr X was found to be a refugee by the Government of an RPC.

The Department’s report also advised that, because of the vulnerabilities associated with his medical conditions, Mr X will not be considered for a Final Departure bridging visa under s 195A of the Migration Act 1958.

The Department’s report advised that in May 2019 Mr X requested to be transferred to City A to be closer to his girlfriend. The report stated that in July 2019 his girlfriend provided further information to assist with the preparation of a ministerial submission to vary Mr X’s community placement address.

In response to a request for information from our Office in December 2019, the Department advised that after an appropriate property had been sourced for Mr X, a submission would be prepared for the Minister’s consideration under s 197AD to vary Mr X’s community placement address.

The International Health and Medical Services report advised that Mr X was monitored and received treatment as required for his pre-existing conditions.

Ombudsman Recommendation

The Ombudsman notes that Mr X has been in immigration detention for a cumulative period of more than three years and remains liable for transfer back to an RPC on completion of his treatment.

The Ombudsman notes with concern that Mr X’s ongoing uncertainty about his immigration status poses a significant risk to his health and welfare.

The Ombudsman recommends that the Department:

1. Expedites sourcing an appropriate property for Mr X.

2. Expedites its preparation of the submission for Mr X’s case and refer it to the Minister under s 197AD to vary his community placement address.

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1003121-O

This is the first s 486O assessment for Mr X who has been in immigration detention for more than two and a half years.

Ombudsman assessment

Mr X arrived in Australia in September 2010 on a humanitarian visa. In February 2017 his visa was mandatorily cancelled under s 501 the Migration Act 1958 following criminal convictions. Three weeks later Mr X lodged a request for revocation of the cancellation of his visa.

In June 2017 Mr X was detained on his release from a correctional facility.

In February 2018 the then-Assistant Minister decided not to revoke the decision. Mr X’s application for judicial review was dismissed by the Federal Court in May 2018.

In November 2018 Mr X lodged an application for a Protection visa. He was found to be owed protection in August 2019. In October 2019 the Department of Home Affairs (the Department) determined that Mr X’s application may be liable for refusal under s 501. The Department’s report of 20 November 2019 advised it was preparing a Notice of Intention to Consider Refusal.

In October 2019 Mr X sent a letter to the Ombudsman’s Office which was about a request for transfer to Facility Z.

The International Health and Medical Services report stated that Mr X received treatment for complex physical and mental health concerns.

The Department’s report advised that Mr X had recently requested a transfer to Facility Z, which had been communicated to the Australian Border Force for consideration and action.

Ombudsman recommendation

The Ombudsman notes that Mr X has been held in immigration detention for more than two and a half years and, at the time of the Department’s report, was awaiting the outcome of his Protection visa application.

The Ombudsman notes that Mr X’s family reside in State A. The Ombudsman believes the information provided by Mr X should give appropriate weight by the Department when considering Mr X’s case for transfer to Facility Z.

The Ombudsman is concerned that Mr X 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.

In light of Mr X’s compelling and compassionate circumstances, the Ombudsman recommends that:

1. The Department transfers Mr X to Facility Z so he can reside closer to family links.

2. If a transfer is not possible at this time because of capacity issues, the Department monitors the situation and transfers Mr X to Facility Z as soon as a place becomes available.