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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1000857-O4, 1000934-O4, 1002286-O4, 1002572-O3, 1002825-O2, 1002828-O2, 1002836-O2, 1003006-O1, 1003139-O, 1003179-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 21 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. 21 / 2020

Personal identifier: 1000857-O4, 1000934-O4, 1002286-O4, 1002572-O3, 1002825-O2, 1002828-O2, 1002836-O2, 1003006-O1, 1003139-O, 1003179-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-1000857-04

,7f May 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 11 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 four 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. The individual assessments considered information provided by the Department in the s 486N reports listed in the schedule and responses to specific requests for additional information as required.

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 1000857-O4 N Mr X 1 1971 3,104 IDF 8 July 2019 and 6 January 2020 9 September 2019

2 1000934-O4 2 Mr X 1 1967 2,922 IDF 19 July 2019 and 20 January 2020 12 September 2019

3 1002286-O4 1 Mr X 1 1993 2,192 IDF 15 July 2019 and 13 January 2020 23 October 2019

4 1002572-O3 1 Mr X 1 1987 1,825 IDF 15 July 2019 and 13 January 2020 17 September 2019

5 1002825-O2 N Mr X 1 1957 1,460 BV 8 July 2019 and 4 January 2020 17 September 2019

6 1002828-O2 N Mr X

Mr X (son) 2 1973

2001

1,465 1,465

CD CD

15 July 2019 and 16 January 2020 12 September 2019

7 1002836-O2 N Mr X 1 1992 1,280 Removed 9 August 2019 12 September 2019

8 1003006-O1 N Mr X 1 1982 1,093 Removed 21 May 2019 and 18 November 2019 12 September 2019

9 1003139-O N Mr X 1 1993 913 IDF 1 July 2019 and 30 December 2019 First Assessment

10 1003179-O N Mr X 1 1970 730 BV 16 August 2019 First Assessment

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

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 1000857-O4

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

Ombudsman assessment

Mr X arrived in Australia in 1987 as the holder of a Child visa. In December 1991 he was granted a Resident Return visa. He was convicted of an offence in November 2001 and sentenced to a term of imprisonment. His visa was cancelled under s 501 of the Migration Act 1958 because of his criminal conviction and he was detained in July 2011 on release from a correctional facility.

Mr X was also convicted of multiple offences between September 1990 and July 1999.

Mr X lodged a Protection visa application which was refused in October 2011. The Refugee Review Tribunal affirmed the decision in February 2012 and again in September 2013 after the Federal Magistrates Court remitted the matter to it for reconsideration. An International Treaties Obligations Assessment in April 2015 found Mr X’s case did not engage Australia’s non-refoulement obligations.

Mr X's case was included in the long term detention submission to the then-Assistant Minister in February 2019. The then-Assistant Minister indicated Mr X’s case should not be referred for consideration under ministerial intervention powers.

Mr X has no ongoing matters before the Department of Home Affairs (the Department), tribunals or the courts and has been on an involuntary removal pathway since August 2017. Mr X’s removal is delayed because his identity has not been confirmed by the authorities of Country A. The Department advised Mr X refuses to cooperate with attempts to confirm his identity.

International Health and Medical Services advised that Mr X did not present with any major health concerns during the reporting period.

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

The Ombudsman notes that Mr X is on an involuntary removal pathway and his removal is delayed because he refuses to cooperate with the Department and the authorities of Country A to confirm his identity.

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 1000934-O4

This is the eighth s 486O assessment for Mr X who has been in immigration detention for more than eight years.

Ombudsman assessment

Mr X was detained under the Migration Act 1958 (the Act) in January 2012 after arriving in Australia by sea with his wife and children. He was convicted of an offence in June 2012 and sentenced to a term of imprisonment. He was released from criminal custody in June 2014 on a good behaviour bond and re-detained.

In December 2018 Mr X’s Temporary Protection visa (TPV) application was refused under s 501 of the Act because of his criminal conviction. The Administrative Appeals Tribunal (AAT) affirmed the refusal in March 2019. The Federal Court remitted his matter back to the AAT for reconsideration in July 2019. The AAT then remitted his matter back to the Department of Home Affairs (the Department) in December 2019 with a direction that his application not be refused under s 501 of the Act. As of May 2020 Mr X’s Temporary Protection visa application is being considered by the Department.

Mr X’s wife and children were granted TPVs in March 2019 and reside in the community.

Mr X requires ministerial intervention to be granted a bridging visa. In October 2019 the Minister declined to consider Mr X’s case under ss 195A or 197AB of the Act for a bridging visa or community placement.

International Health and Medical Services advised that Mr X was monitored and supported for ongoing physical and mental health concerns.

Ombudsman recommendation

The Ombudsman notes that Mr X has been held in immigration detention for more than eight years and is awaiting the outcome of the Department’s reconsideration of his Temporary Protection visa application.

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.

Noting the significant length of time Mr X has remained in detention, the Ombudsman recommends that the Department:

1. Expedites its reconsideration of Mr X’s Temporary Protection visa application.

2. Assesses Mr X’s case against the guidelines for consideration of a community placement under s 197AB of the Act.

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 1002286-O4

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 (the Act) in March 2013 after arriving in Australia by sea. He was granted a bridging visa in June 2013 and released from detention. He was re-detained in March 2014 after his bridging visa expired.

The Department of Home Affairs (the Department) advised that in the month before he was re-detained Mr X became of interest to police because he was alleged to have been involved in a criminal offence. In February 2016 police advised the Department there was insufficient evidence and any investigation was closed.

Mr X’s Safe Haven Enterprise visa (SHEV) application was refused in October 2016. Mr X’s SHEV application was undertaken on the basis he was a citizen of Country A. In April 2019 an identity assessment concluded Mr X was a citizen of Country B.

In June 2019 the Department identified that Mr X’s case met the guidelines under s 195A of the Act for referral to the Minister for consideration of a bridging visa. The Minister declined to intervene in December 2019.

Mr X's case was also assessed against the guidelines under ss 46A and 48A of the Act to allow him to lodge a fresh application for protection. His case was referred to the Minister in August 2019 as part of a group submission under ss 46A and 48A of the Act. In March 2020 the Minister lifted the bar and in April 2020 Mr X lodged a valid application for a SHEV.

International Health and Medical Services stated that Mr X presented with mental health concerns and attended reviews with the mental health team.

Ombudsman recommendation

The Ombudsman notes that Mr X has been held in immigration detention for a cumulative period of more than six years and is awaiting the outcome of his fresh Safe Haven Enterprise visa application.

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. Assesses Mr X’s case against the guidelines for consideration of a community placement under s 197AB of the Act.

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 1002572-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 transferred to a Regional Processing Country (RPC) in March 2014. He was returned to Australia in November 2014 for medical treatment and was transferred back to an RPC in April 2015. He was returned to Australia again with his wife and her adult son in January 2016 for medical treatment. The family was placed in the community under a residence determination in March 2016.

The Department of Home Affairs (the Department) advised that, as Mr X arrived after 19 July 2013, he remains liable for transfer back to an RPC when his medical treatment is complete.

The Government of an RPC found Mr X to be a refugee. The Department advised that, in September 2019, Mr X’s case was referred to a third country resettlement program for consideration.

Mr X was convicted of offences in September 2017 and July 2018 for which he was fined.

Following his convictions, the Minister revoked Mr X’s community placement and he was returned to an immigration detention facility in July 2018.

In November 2018 Mr X’s case was referred to the Minister for consideration of a community placement under s 197AB of the Migration Act 1958 (the Act). In October 2019 the Minister declined to intervene.

International Health and Medical Services (IHMS) advised Mr X was treated for mental health concerns.

Ombudsman recommendation

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

The Ombudsman notes with concern that Mr X is likely to remain separated from his family for a prolonged period while he remains in an immigration detention facility. This poses a significant risk to his health and welfare.

Noting the IHMS advice about the impact of family separation on Mr X’s health, the Ombudsman recommends that the Department:

1. Assesses Mr X’s case against the guidelines for consideration of a community placement under s 197AB of the Act, as a matter of priority.

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 1002825-O2

This is the third s 486O assessment for Mr X who was held in immigration detention for more than four years before he was granted a bridging visa in February 2020.

Ombudsman assessment

Mr X arrived in Australia in July 1983 under the Special Humanitarian Program. His visa was cancelled under s 501 of the Migration Act 1958 (the Act) in September 2015 after he was convicted of criminal offences. He was sentenced to a term of imprisonment and detained in January 2016 on release from a correctional facility.

Mr X has been convicted of several offences since 1985. He was sentenced to terms of imprisonment on a number of occasions. The Department of Home Affairs (the Department) advised that between November 2001 and November 2014, the Minister considered cancelling Mr X’s visa on four occasions because of his criminal history, but instead issued him with formal warnings.

Mr X has no matters before the Department, tribunals or the courts and was identified for removal in May 2016. Mr X was appointed a legal guardian in February 2018 to make decisions about his healthcare and immigration matters. The Department advised that Mr X and his guardian have declined to cooperate to facilitate his removal.

In July 2018 the Minister advised the Department that Mr X’s case should not be referred for consideration of a bridging visa under s 195A of the Act unless it could confirm that removal was not an option.

International Health and Medical Services advised that Mr X received monitoring and treatment for ongoing physical and mental health concerns.

Mr X was transferred to an alternative place of detention in November 2018. In March 2019 he was reappointed a legal guardian to make decisions about his accommodation, healthcare and legal matters.

In December 2019 Mr X’s case was referred to the Minister under ss 195A and 197AB of the Act for consideration of a bridging visa or a community placement.

In February 2020 Mr X was granted a bridging visa and 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 and son

Ombudsman ID 1002828-O2

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

Ombudsman Assessment

Mr X and his son were transferred to a Regional Processing Country (RPC) in October 2013 and returned to Australia for medical treatment in January 2016.

The Department of Home Affairs (the Department) advised that, as they arrived after 19 July 2013, Mr X and his son remain liable for transfer back to an RPC on completion of their treatment.

The Government of an RPC found Mr X and his son to be refugees.

Mr X’s wife lives in the community on a bridging visa with their other children who were born in Australia.

The Department has advised that Mr X and his son are currently residing at separate addresses.

International Health and Medical Services advised that Mr X received treatment for ongoing physical health concerns. His son continued to be treated for mental health concerns.

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

Mr X and his son currently reside separately 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 long term and potentially 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 1002836-O2

This is the third s 486O assessment for Mr X who was held in immigration detention for a cumulative period of more than three and a half years before he voluntarily departed Australia in November 2019.

Ombudsman assessment

Mr X was detained under the Migration Act 1958 (the Act) in April 2013 after arriving in Australia by sea. He was granted a bridging visa in June 2013 and released from detention. In June 2015 his visa was cancelled under s 116 of the Act after he was charged with criminal offences. He was re-detained the same day.

In May 2016 Mr X was granted a bridging visa, which was then cancelled under s 116 of the Act in November 2016 after he was charged with further offences. In March 2017 he was sentenced to a term of imprisonment for each charge, to be served concurrently. His sentence took into consideration time already served and he was released from custody four days later and re-detained.

In March 2018 Mr X’s Temporary Protection visa application was refused. The Administrative Appeals Tribunal affirmed the decision in May 2018. His application to the Federal Circuit Court for judicial review was dismissed in June 2019.

Mr X had no ongoing matters with the Department of Home Affairs (the Department), courts or tribunals. He requested voluntary removal from Australia in July 2019. The Department lodged an application for a travel document with the authorities of Country A in August 2019.

The Department advised that Mr X was released from detention when he voluntarily departed Australia in November 2019.

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 1003006-O1

This is the second s 486O assessment on Mr X who was held in immigration detention for a cumulative period of more than three years before he was involuntarily removed from Australia in February 2020.

Ombudsman assessment

Mr X was detained under the Migration Act 1958 (the Act) in July 2013 after arriving in Australia by sea. He was granted a bridging visa in September 2013 and released from detention.

In July 2016 Mr X’s bridging visa was cancelled under s 116 of the Act after he was charged with criminal offences. He was released from criminal custody in August 2016 and re-detained. In October 2016 the Administrative Appeals Tribunal (AAT) set aside the cancellation and reinstated his bridging visa. Mr X was released from detention the same day.

The day after he was released from detention, Mr X was charged with more offences. He was remanded in custody and three days later the Department of Home Affairs (the Department) again cancelled his bridging visa under s 116 of the Act. In March 2017 the AAT set aside the cancellation decision and reinstated Mr X’s bridging visa.

In March 2017 Mr X’s criminal charges were dismissed and he was released from criminal custody. He was re-detained the same day because his bridging visa had expired while he was in custody.

Mr X’s Safe Haven Enterprise visa application was refused in July 2017 and the Immigration Assessment Authority affirmed the decision in August 2017. His application for judicial review and a request for special leave to appeal to the High Court were both unsuccessful.

Mr X had no outstanding matters before the Department, tribunals or the courts and was on a removal pathway. The Department advised that his removal was scheduled for October 2019 but did not go ahead because of his health concerns.

International Health and Medical Services advised that Mr X had complex physical and mental health concerns. His health and wellbeing was monitored and managed.

Mr X was released from detention when he was involuntarily removed from Australia in February 2020.

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 1003139-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 May 2006, with his parents and siblings, as the holder of a Refugee visa. His visa was mandatorily cancelled under s 501 of the Migration Act 1958 in January 2017 because of criminal charges. In May 2016 Mr X was convicted of the charges and sentenced to a term of imprisonment. He was detained in June 2017 on release from criminal custody.

Between 2008 and 2016 Mr X was convicted of multiple offences. His sentences included a good behaviour bond, fines, probation and terms of imprisonment.

In January 2019 Mr X lodged a Protection visa application. A delegate of the Minister assessed that he is owed protection and would suffer serious harm if returned to Country A, but his application was refused in November 2019 because he was found to be a risk to Australia’s security and the Australian community.

International Health and Medical Services (IHMS) advised that Mr X had ongoing mental health concerns. The Protection visa decision record concluded that his mental health conditions will require lifelong medication and complementary treatment. IHMS stated that a psychiatrist review in June 2019 reported that one of Mr X’s conditions was in remission. IHMS advised that he continued to be monitored and that no mental health concerns were reported.

In November 2019 Mr X requested voluntary removal. The Department of Home Affairs (the Department) advised it was working with the authorities of Country A to facilitate his request.

The Department advised that, because Mr X previously held a Refugee visa, extra measures will be taken to ensure he is informed of the potential risks of his return to Country A. The Department stated that in February 2020 IHMS and a psychiatrist assessed Mr X as mentally competent and fit to travel.

The Ombudsman notes Mr X has been found to be owed protection but his Protection visa was refused and he requested voluntary removal in November 2019. The Ombudsman also notes Mr X has been assessed as mentally competent to give consent and will be informed of the risks of his return to Country A.

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 1003179-O

This is the first s 486O assessment for Mr X who was held in immigration detention for more than two years before he was granted a bridging visa in January 2020.

Ombudsman assessment

Mr X arrived in Australia in December 2009 as the holder of a student visa. In March 2013 his visa was cancelled under s 137J of the Migration Act 1958 because he did not meet his course requirements.

The Department of Home Affairs (the Department) advised Mr X was included in his wife’s Protection visa application which was lodged in March 2013. The application was refused and subsequent applications for merits and judicial review were unsuccessful.

Mr X lived in the community on bridging visas until he was detained in August 2017 as a result of presenting to the Department’s office.

The Ombudsman notes that Mr X had no ongoing matters before the Department, tribunals or the courts and as of 14 August 2019 the Department was in the process of finalising his removal.

The Department advised Mr X was granted a bridging visa in January 2020 and released from detention.