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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1002270-O4, 1002274-O4, 1002439-O3, 1002708-O2, 1002923-O2, 1002930-O1, 1003027-O1, 1003091-O, 1003119-O, 1003135-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 13 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. 13 / 2020

Personal identifier: 1002270-O4, 1002274-O4, 1002439-O3, 1002708-O2, 1002923-O2, 1002930-O1, 1003027-O1, 1003091-O, 1003119-O, 1003135-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-1002270-04

// 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 14 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 has made 10 recommendations in relation to seven 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 1002270-O4 2 Mr X 1 1987 2,191 CD 26 June 2019 and 19 December 2019 12 September 2019

2 1002274-O4 1 Mr X 1 1986 2,193 CD 26 June 2019 and 30 December 2019 12 September 2019

3 1002439-O3 N Mr X 1 1981 2,016 CD 3 July 2019 and 8 January 2020 12 September 2019

4 1002708-O2 N Mr X

Ms X (wife) Master X (son) Master X (son)

4 1979

1983 2015 2016

1,648 1,648 1,539 1,038

CD CD CD CD

4 July 2019 and 8 January 2020 12 September 2019

5 1002923-O2 N Mr X 1 1984 1,277 IDF 18 June 2019 and 9 December 2019 12 September 2019

6 1002930-O1 2 Mr X 1 1995 1,277 IDF 24 June 2019 and 17 December 2019 12 September 2019

7 1003027-O1 2 Mr X 1 1995 1,095 IDF 21 June 2019 and 18 December 2019 9 September 2019

8 1003091-O 1 Ms X

Mr X (husband) 2 1976

1976

912 731

APOD APOD

2 May 2019, 14 October 2019 and 22 October 2019 First Assessment

9 1003119-O 1 Mr X 1 1984 912 IDF 3 June 2019 and 2 December 2019 First Assessment

10 1003135-O 1 Mr X 1 1983 730 IDF 25 June 2019 and 23 December 2019 First Assessment

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

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 1002270-O4

This is the fifth s 486O assessment for Mr X who has remained in immigration detention for a cumulative period of more than six years.

Ombudsman assessment

Mr X was transferred to a Regional Processing Country (RPC) in December 2013 and returned to Australia for medical treatment two weeks later.

The Department of Home Affairs’ (the Department) report advised that Mr X is not liable for return to an RPC because he requires medical treatment that cannot be provided there and the Government of that country will not allow him to return.

Mr X’s claim for protection has not been assessed. Under the current government policy, Mr X is not eligible to have his protection claims assessed by Australia. Without an assessment of Mr X’s claims it is likely he will remain in immigration detention indefinitely.

The Ombudsman’s previous assessment recommended that in light of the lack of progress in Mr X’s protection claims, the Department identify next steps to regularise or resolve Mr X’s immigration status.

On 12 September 2019 the Minister advised in a tabling statement that he was aware of Mr X’s circumstances as the Government of an RPC had decided not to accept him under the non-acceptance provisions because of the medical treatment he requires. The Minister stated that the Department was reviewing Mr X’s circumstances and would expedite its consideration of his case within the existing legislative and policy framework. The Minister further advised that Mr X was residing in a community placement which provided him the best level of support while he is undergoing medical treatment.

The Department’s report of 19 December 2019 advised that if Mr X’s health has sufficiently improved, he will be referred to the Minister for consideration of a bridging visa under s 195A of the Migration Act 1958.

The International Health and Medical Services (IHMS) report stated that Mr X’s major health concerns had been resolved.

The Department’s report advised that following the IHMS advice, it was considering appropriate options to resolve Mr X’s immigration status.

Ombudsman Recommendation

The Ombudsman notes that Mr X has been in immigration detention for a cumulative period of more than six years and at the time of the Department’s recent report, his claim for protection had still not been assessed.

The Ombudsman also notes that the Department has been exploring options to resolve Mr X’s immigration status for over three years.

The Ombudsman is concerned about the significant risk Mr X’s ongoing uncertainty about his immigration status poses to his health and welfare.

The Ombudsman again recommends that the Department:

1. Takes prompt action to regularise or resolve Mr X’s immigration status.

Noting the advice from IHMS about Mr X’s health concerns, the Ombudsman recommends that the Department:

2. Assess Mr X’s case against the s 195A guidelines for consideration of a bridging visa.

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 1002274-O4

This is the fifth s 486O assessment for Mr X who has remained in immigration detention for a cumulative period of more than six years.

Ombudsman assessment

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

The Department of Home Affairs’ (the Department) report of 26 June 2019 advised that as Mr X arrived after 19 July 2013 he remains liable to return to an RPC on completion of his treatment.

The Department’s report further advised that Mr X declined to participate in a Refugee Status Determination (RSD) by the Government of an RPC and was found to not be a refugee. The report advised that he was informed of the decision in March 2019 and did not seek review.

The International Health and Medical Services (IHMS) report advised that Mr X continued to be monitored and received treatment as required for his pre-existing conditions. IHMS reiterated a psychiatrist’s recommendation that Mr X’s condition was likely to improve if he could live alone.

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

Ombudsman recommendation

The Ombudsman notes that Mr X has been in immigration detention for a cumulative period of more than six years and remains liable to return 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.

In light of the advice from IHMS about the impact of his living arrangements on Mr X’s health and welfare, the Ombudsman recommends that the Department:

1. Refer Mr X’s case to the Minister for consideration to vary his community placement address under s 197AD.

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 1002439-O3

This is the fourth s 486O assessment for Mr X who has remained 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 July 2014.

The Department of Home Affairs’ (the Department) report of 8 January 2020 advised that as Mr X arrived after 19 July 2013 he remains liable to return 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 advised that in light of the vulnerabilities associated with Mr X’s medical conditions, he 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 that, under current legal and policy settings, is subject to return to an RPC when he completes his treatment.

Mr X currently resides 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 Mr X’s long term and seemingly indefinite detention and the uncertain nature

of his immigration pathway poses to his 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 and family

Ombudsman ID 1002708-O2

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

Ombudsman assessment

Mr X and Ms X were transferred to a Regional Processing Country (RPC) in August 2013 and returned to Australia for medical treatment in July 2015. Their children were born in Australia following their temporary transfer.

The Department of Home Affairs’ (the Department) reports of 4 July 2019 and 8 January 2020 advised that as the family arrived after 19 July 2013 they remain liable to return 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 Department’s report further advised that, while they have children under the age of five who are not yet attending school, the family will not be considered for Final Departure bridging visas under s 195A of the Migration Act 1958.

The International Health and Medical Services report advised that the family was monitored and received treatment as required for their pre-existing conditions.

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

The family currently resides in the community under a residence determination, which provides them with health and welfare support. Notwithstanding their placement in the community, the Ombudsman is concerned about the risk the family’s long term and seemingly indefinite detention and the uncertain nature of their immigration pathway poses to their 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 1002923-O2

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

Ombudsman assessment

Mr X arrived in Australia in 1986 as the holder of a migrant entry permit. In September 1994, following legislative changes, he was considered to hold at Transitional (permanent) visa. In June 2016 Mr X’s visa was mandatorily cancelled by the Minister under s 501 of the Migration Act 1958 and he was detained.

The Department of Home Affairs’ (the Department) report of 18 June 2019 advised that in September 2016 the Federal Court (FC) quashed the decision to cancel Mr X’s visa and it was reinstated. Before Mr X was released from detention, the Minister cancelled his visa under s 501 on the basis that he had a serious criminal record.

Mr X lodged an application in the FC for judicial review of the second cancellation decision. In February 2018 the FC quashed the decision. His visa was again reinstated and he was released from detention. The Department’s report advised that after he was released, Mr X chose to remain at Facility Y.

The next day the then-Assistant Minister cancelled Mr X’s visa under s 501 on the basis that he had a serious criminal record and Mr X was re-detained. His applications for judicial review in the FC and the Full Federal Court (FFC) were dismissed.

In March 2018 Mr X lodged an application in the FC seeking damages for unlawful detention or false imprisonment as the decision records in the first two cancellation decisions incorrectly referred to his visa as a Resident Return visa. In June 2019 the FC reserved its judgment.

In September 2019 Mr X requested special leave to appeal the FFC judgment in the High Court. At the time of the Department’s recent report of 9 December 2019, Mr X was awaiting the outcome.

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 International Health and Medical Services (IHMS) report stated that Mr X received treatment for physical and mental health concerns.

The Department’s report advised that in May 2019 Mr X was transferred to Facility Z after he requested to be moved closer to his family.

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 at the time of the Department’s report, 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 1002930-O1

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 in October 2012 after arriving in Australia by sea. In February 2014 he was granted a bridging visa and released from detention.

In June 2016 Mr X’s Temporary Protection visa application was refused. In July 2016 the Immigration Assessment Authority (IAA) affirmed the refusal.

In August 2016 Mr X’s bridging visa ceased and he remained in the community as an unlawful non-citizen.

Mr X was taken into criminal custody in March 2017 after he was charged with a criminal offence. The Department of Home Affairs’ (the Department) report of 24 June 2019 advised that Mr X was convicted of the offence in October 2017 and sentenced to one year imprisonment, with a non-parole period of eight months. He was released from a correctional facility in November 2017 and re-detained.

In August 2018 Mr X’s application for judicial review of the IAA’s decision in the Federal Circuit Court was dismissed. He lodged an application for judicial review in the Federal Court. In May 2019 his matter was adjourned to await the outcome of a related case. At the time of the Department’s recent report of 17 December 2019, a hearing had not been scheduled.

In June 2019 Mr X’s bridging visa application was refused under s 501 because of his criminal conviction. In September 2019 the Administrative Appeals Tribunal affirmed the refusal.

The Department’s report advised that in November 2019 Mr X lodged a bridging visa application which was invalid because s 501E prevents him from lodging valid bridging visa applications. The report stated Mr X requires ministerial intervention to be granted a bridging visa or a community placement.

The Department’s report also advised that in late November 2019 Mr X’s case was referred for assessment against the guidelines under s 195A for consideration of a bridging visa.

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

IHMS advised that in March 2019 a psychiatrist reported the stressors associated with the detention environment had negatively impacted Mr X. In October 2019 a torture and trauma counsellor recommended Mr X be released into the community until his immigration case is resolved.

Ombudsman Recommendation

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

The Ombudsman also notes that Mr X’s case was referred for an assessment against the s 195A guidelines in November 2019. The Ombudsman further notes that IHMS reiterated reports from a psychiatrist and a torture and trauma counsellor that his mental health was being negatively impacted by the detention environment.

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 the IHMS advice, the Ombudsman recommends that the Department:

1. Expedites its assessment of Mr X’s case against the s 195A guidelines.

2. Commissions a contemporary independent assessment of Mr X’s risk to the community to inform its assessment of his case against the s 195A guidelines.

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 1003027-O1

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 in March 2013 after arriving in Australia by sea. He was granted a bridging visa in May 2014 and was released from detention. In June 2017 Mr X’s bridging visa ceased and he remained in the community unlawfully.

The Department of Home Affairs’ (the Department) report of 21 June 2019 advised that Mr X has a criminal history dating back to 2016. In February 2018 he was convicted of criminal offences and his sentence was suspended for one year. He was re-detained the same day on his release from criminal custody.

In April 2018 Mr X’s Safe Haven Enterprise visa (SHEV) application was refused. In June 2018 the Immigration Assessment Authority (IAA) affirmed the refusal. The Department’s report advised the bridging visa application associated with Mr X’s SHEV application was refused under s 501 because of his criminal history. The report also advised that Mr X did not seek further review of the IAA’s decision.

The Department’s report of 18 December 2019 advised that Mr X had no outstanding matters before the Department, tribunals or the courts and his case was referred for involuntary removal action. The report further advised that the authorities of Country A are currently not cooperating with the involuntary return of its citizens and, as a result, Mr X’s removal could not be actioned.

The Department’s report stated that Mr X’s case was referred for an assessment against the guidelines under s 195A for consideration of a bridging visa in May 2019. At the time of the report, the Department was progressing the assessment.

Ombudsman Recommendation

The Ombudsman notes that Mr X has been held in immigration detention for a cumulative period of more than three years and at the time of the Department’s report, the Department was assessing his case against the s 195A guidelines.

The Ombudsman also notes that Mr X is on an involuntary removal pathway but his removal cannot be actioned at present because the authorities of Country A are not cooperating with the involuntary return of its citizens.

The Ombudsman is concerned that Mr X 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 Ombudsman recommends that the Department:

1. Expedites its assessment of Mr X’s case against the s 195A guidelines.

2. Commissions a contemporary independent assessment of Mr X’s risk to the community to inform its assessment of his case against the s 195A guidelines.

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 Ms X

Mr X (husband)

Ombudsman ID 1003091-O

This is the first s 486O assessment for Ms X and Mr X who have remained in immigration detention for a cumulative period of more than two and a half years.

Ombudsman assessment

Mr X was detained under the Migration Act 1958 in 2012 after arriving in Australia by sea. He was granted a bridging visa and released from detention.

Ms X was detained in 2013 after arriving in Australia by sea. She was granted a bridging visa in 2014 and released from detention.

In 2012 Mr X’s Protection visa application was refused. Subsequent merits and judicial reviews were unsuccessful.

In 2017 Ms X’s Safe Haven Enterprise visa application was refused. Subsequent merits and judicial reviews were unsuccessful.

In 2018 on expiry of their last bridging visa, Ms X and Mr X were re-detained.

The Department of Home Affairs (the Department) report of 2 May 2019 advised that in August 2018 the Minister declined to intervene under s 197AB to allow the family to reside in a community placement.

The Department’s reports of 14 and 22 October 2019 advised that in March 2019 Ms X’s and Mr X’s cases were found to not meet the guidelines for referral to the Minister under s 195A for consideration of bridging visas. The report advised that the guidelines assessment identified that Ms X was able to lodge valid bridging visa applications because the s 46A bar has been lifted.

The Department’s report of 14 October 2019 advised that in September 2019 Mr X lodged a request for intervention under s 48B and the consideration of that request was ongoing.

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

Ombudsman Recommendation

The Ombudsman notes that Ms X and Mr X have been held in immigration detention for a cumulative period of more than two and a half years.

The Ombudsman also notes that in September 2019 Mr X lodged a request for intervention under s 48B to allow him to lodge another valid visa application and at the time of the Department’s recent report, his request was still being considered.

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

The Ombudsman recommends that the Department:

1. Expedites its consideration of Mr X’s request for intervention under s 48B.

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 1003119-O

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

Ombudsman assessment

Mr X arrived in Australia in May 2011 holding a humanitarian visa. In January 2017 his visa was mandatorily cancelled under s 501 of the Migration Act 1958.

The Department of Home Affairs’ (the Department) report of 3 June 2019 advised that Mr X lodged a request for revocation of the cancellation of his visa but it was invalid because his request was lodged outside the prescribed timeframe. He was detained in June 2017 on his release from a correctional facility.

The Department’s report further advised that Mr X’s criminal offending began in 2012 for which he received good behaviour bonds, fines and multiple sentences ranging from one month to 12 months imprisonment. In August 2016 he was convicted of further offences and sentenced to one year and three months imprisonment. On appeal, his sentence was reduced to five months.

In July 2017 Mr X lodged an application in the Federal Circuit Court (FCC) for judicial review of the delegate’s decision to cancel his visa. The Department’s report advised that in October 2017, after receiving legal advice, the Department began processing Mr X's request to revoke the cancellation of his visa. In February 2018 the FCC discontinued Mr X’s application for judicial review. The same day, the then-Assistant Minister decided not to revoke the decision to cancel his visa.

The Department’s report advised that Mr X’s application for judicial review of the non-revocation decision in the Federal Court was dismissed in October 2018.

In December 2018 Mr X lodged a Protection visa application. In September 2019 Mr X was issued a Notice of Intention to Consider Refusal of his application under s 501. The Department’s report of 2 December 2019 advised that Mr X provided a response in October 2019 which was being considered.

The Department’s report further advised that in June 2019 Mr X’s case was referred for an assessment against the guidelines under s 195A for consideration of a bridging visa. The assessment was placed on hold while his Protection visa application was being considered under s 501.

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

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 recent report, he was awaiting the outcome of his Protection visa application.

The Ombudsman also notes that Mr X’s Protection visa application was being considered for refusal on character grounds under s 501(1).

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.

The Ombudsman recommends that the Department:

1. Expedites its assessment of Mr X’s Protection visa application under s 501.

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 1003135-O

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 in July 2012 after arriving in Australia by sea. He was granted a bridging visa in October 2012 and released from detention.

In July 2013 Mr X’s Temporary Protection visa application was refused. In March 2015 the Refugee Review Tribunal affirmed the refusal. Mr X’s applications for judicial review in the Federal Circuit Court and Federal Court were dismissed.

Mr X’s bridging visa ceased in April 2015 and he was re-detained in September 2017 after living unlawfully in the community.

The Department of Home Affairs’ (the Department) report of 25 June 2019 advised that in September 2018 Mr X’s case was found to meet the guidelines for referral to the Minister for consideration of a bridging visa under s 195A. The report further advised that the Department did not refer Mr X’s case to the Minister because Mr X had been identified for removal.

The Department’s report of 23 December 2019 advised that Mr X does not have a valid travel document and is unwilling to return to Country A voluntarily. The authorities of Country A are currently not cooperating with the involuntary return of its citizens and, as a result, Mr X’s removal is likely to be protracted.

The Department’s report advised that in July 2019 Mr X’s case was referred for an assessment against the guidelines under s 195A for consideration for a bridging visa.

Ombudsman Recommendation

The Ombudsman notes that Mr X has been held in immigration detention for a cumulative period of more than two and a half years and at the time of the Department’s recent report, his case was awaiting the outcome of an assessment against the guidelines under s 195A.

The Ombudsman also notes that Mr X has been on an involuntary removal pathway since 2018 and his removal is likely to be protracted because involuntary removal to Country A is not possible at present.

The Ombudsman is concerned that Mr X 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 Ombudsman recommends that the Department:

1. Expedites its assessment of Mr X’s case against the s 195A guidelines.