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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1000894-O3, 1001232-O5, 1001645-O3, 1002453-O3, 1002715-O2, 1002833-O2, 1002835-O2, 1003107-O, 1003163-O, 1003165-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 20 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. 20 / 2020

Personal identifier: 1000894-O3, 1001232-O5, 1001645-O3, 1002453-O3, 1002715-O2, 1002833-O2, 1002835-O2, 1003107-O, 1003163-O, 1003165-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-1000894-03

':?.,7 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 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 has made six recommendations in relation to four 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 1000894-O3 3 Ms X 1 1960 2,921 IDF 1 July 2019 and 30 December 2019 17 September 2019

2 1001232-O5 1 Mr X 1 1988 2,556 IDF 6 August 2019 and 30 January 2020 12 September 2019

3 1001645-O3 1 Mr X 1 1976 2,556 IDF 23 May 2019 and 13 November 2019 12 September 2019

4 1002453-O3 N Mr X

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

4 1982

1990 2015 2016

2,009 2,009 1,808 1,330

CD CD CD CD

16 July 2019 and 16 January 2020 12 September 2019

5 1002715-O2 N Mr X 1 1978 1,643 IDF 24 July 2019 and 14 January 2020 12 September 2019

6 1002833-O2 N Mr X 1 1975 1,277 Removed 1 August 2019 12 September 2019

7 1002835-O2 N Mr X 1 1979 1,460 IDF 6 August 2019 and 5 February 2020 12 September 2019

8 1003107-O 1 Mr X 1 1963 1,095 IDF 15 May 2019, 28 August 2019 and

27 February 2020

First Assessment

9 1003163-O N Mr X 1 1988 730 Removed 30 July 2019 First Assessment

10 1003165-O N Mr X 1 1990 912 IDF 2 August 2019 and 31 January 2020 First Assessment

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

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

Ombudsman ID 1000894-O3

This is the eighth s 486O assessment for Ms X who has been in immigration detention for a cumulative period of more than eight years.

Ombudsman assessment

Ms X was detained under the Migration Act 1958 (the Act) in November 2011 after arriving in Australia by sea.

The Department of Home Affairs (the Department) advised that Ms X was recognised as a refugee in Country A but her status was later revoked. The Department advised that while living in Country A, Ms X was convicted of multiple criminal offences and sentenced to a term of imprisonment.

In 2015 Ms X was convicted of a criminal offence. She was sentenced to a term of imprisonment and re-detained following her release from criminal custody.

In March 2012 and September 2012 non-statutory processes found that Ms X was not a refugee. In August 2015 an International Treaties Obligations Assessment found that Ms X did not engage Australia’s non-refoulement obligations. In July 2016 Ms X lodged an unsuccessful Temporary Protection visa (TPV) application which the Administrative Appeals Tribunal (AAT) remitted back to the Department in August 2017 with a direction that she is owed protection.

On reconsideration, the Department refused Ms X’s TPV application under s 501 of the Act in July 2018. In October 2018 the AAT set aside the Department’s decision and substituted it with a decision that Ms X’s application should not be refused under s 501 of the Act.

Ms X’s case was included in a submission to the then-Assistant Minister. In February 2019 the then-Assistant Minister indicated that Ms X’s case should not be referred for consideration under the Minister’s personal intervention powers.

In March 2019 Ms X was notified of the Department’s intention to refuse her TPV application under s 501 of the Act. At the same time she was also advised the Minister intended to personally consider setting aside the AAT’s decision and refuse her TPV. Ms X provided a response in June 2019. In October 2019 a submission was referred to the Minister for his consideration to refuse to grant Ms X a TPV under s 501 of the Act.

International Health and Medical Services (IHMS) advised that Ms X received treatment for complex mental health concerns.

The Ombudsman’s previous assessment recommended that Ms X’s case be referred to the Minister under s 195A of the Act for a bridging visa or under s 197AB of the Act for a community placement and, if neither of those options were considered appropriate, the Department consider alternative placement options where Ms X’s needs can be appropriately managed.

In a tabling statement dated 17 September 2019 the Minister referred to the then-Assistant Minister’s decision in February 2019 that Ms X’s case should not be referred for consideration under ministerial intervention powers. The Minister advised that Ms X’s case was reviewed and she was transferred to a lower security facility to support the management of her health and welfare.

In August 2019 Ms X’s case was referred for an assessment against the guidelines for consideration of a bridging visa under s 195A of the Act. In May 2020 the Department advised the assessment was ongoing.

Ombudsman recommendation

The Ombudsman notes that Ms X has been held in immigration detention for a cumulative period of more than eight years and continues to await the outcome of her Temporary Protection visa application.

The Ombudsman also notes the AAT’s decisions that Ms X is owed protection and her Temporary Protection visa application should not be refused under s 501 of the Act. However, the Minister was intending to personally refuse her application under s 501 of the Act.

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

Noting the IHMS advice about the impact of detention on Ms X’s mental health, the Ombudsman recommends that:

1. The consideration of Ms X’s Temporary Protection visa application be expedited and that this consideration should be done consistently with the AAT’s decisions.

2. The Department expedites its assessment of Ms X’s case against the guidelines under s 195A of the Act.

If Ms X’s case does not meet the guidelines for referral to the Minister under s 195A of the Act, the Ombudsman recommends that:

3. The Department assesses Ms X’s case 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 1001232-O5

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 (the Act) in January 2013 after he arrived in Australia by sea. Mr X alleged he was involved in criminal conduct in Country A, but later retracted his claims. In December 2014 the Department of Home Affairs (the Department) ceased any investigation into the matter.

In January 2016 and November 2016 Mr X’s case was referred to the Minister for consideration of a bridging visa under s 195A of the Act. On both occasions the Minister declined to intervene.

Mr X lodged an application for a Safe Haven Enterprise visa, which was refused in July 2016. His applications for merits and judicial review were unsuccessful.

Mr X has no outstanding matters before the Department, tribunals or the courts and has been on an involuntary removal pathway since 2018. The Department lodged an application for a travel document with the authorities of Country A in late 2017 but it was not issued. The Department advised it was preparing to lodge another travel document application for Mr X with the authorities of Country A.

In November 2019 the Department referred Mr X’s case to the Minister for consideration of a bridging visa under s 195A of the Act. The Minister declined to intervene in December 2019.

International Health and Medical Services advised that Mr X was monitored and received treatment as required for mental health concerns.

Ombudsman recommendation

The Ombudsman notes that Mr X has been held in immigration detention for more than seven years and has been on an involuntary removal pathway since August 2018.

The Ombudsman also notes that since 2017 the Department has had difficulty obtaining a travel document for Mr X.

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 significant risks 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 guidelines for consideration of a bridging visa under s 195A 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 1001645-O3

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 (the Act) in November 2012 after arriving in Australia by sea. A report from the Department of Home Affairs (the Department) dated 12 November 2015 advised that Mr X was previously a person of interest in relation to an alleged criminal matter overseas.

Mr X lodged a Safe Haven Enterprise visa (SHEV) application, which was refused in July 2016. The refusal was affirmed by the Immigration Assessment Authority in September 2016. In April 2018, following the Federal Court’s judgment in DBB16,1 Mr X sought merits review of his SHEV refusal at the Administrative Appeals Tribunal (AAT). As at May 2020, his AAT matter remains ongoing.

The Ombudsman’s previous assessment recommended Mr X’s case be referred to the Minister for consideration under s 195A of the Act for a bridging visa. In a tabling statement dated 12 September 2019 the Minister advised that the Department had recently referred Mr X’s case for his consideration to intervene under s 195A of the Act.

Mr X’s case was referred to the Minister in May 2019 and in September 2019 the Minister’s Office requested Mr X’s case be removed from the submission. In May 2020 the Department advised that Mr X’s case met the guidelines for referral as of March 2020 and a submission to the Minster was in final executive clearance.

International Health and Medical Services advised that Mr X continued to be monitored and received treatment as required for his pre-existing conditions.

Ombudsman recommendation

The Ombudsman notes that Mr X has been held in immigration detention for more than seven years and is awaiting the outcome of the AAT’s reconsideration of his Safe Haven Enterprise visa application.

The Ombudsman notes that as of May 2020 a submission for the Minister to consider Mr X’s case under s 195A of the Act was in final clearance.

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 finalisation of the submission to the Minister, so that the Minister can consider Mr X’s case under s 195A of the Act.

1 DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.

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 1002453-O3

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

Ombudsman assessment

Mr X and Ms X arrived in Australia in November 2013 by sea. They were transferred to a Regional Processing Country (RPC) four days later and returned to Australia for medical treatment in July 2014. Both of their children were born in Australia following their temporary transfer.

The Department of Home Affairs (the Department) advised that, because the family arrived after 19 July 2013, they remain liable for transfer back to an RPC on completion of their treatment.

The Department advised that the family are not being considered for bridging visas as they have children under school age.

The Government of an RPC has determined the family to be refugees.

International Health and Medical Services advised that the family continued to experience ongoing physical and mental health concerns. The two children continued to be monitored and treated for concerns which were attributed to complex social circumstances.

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, 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 Mr X and his family’s 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 1002715-O2

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

Ombudsman assessment

Mr X arrived in Australia in 1988 as a dependant on his parents’ visa. He was granted a Resident Return visa in October 1992.

Mr X has a criminal history in Australia dating back to 2002. In May 2002 he was convicted of criminal offences and sentenced to a term of imprisonment. Following two appeals against the conviction, in February 2009 his sentence was reduced. His re-sentencing took into account time already served and he was released on parole.

The Department of Home Affairs (the Department) advised that in October 2004 Mr X lodged an application for Australian citizenship. His application was refused in May 2006 under s 13(11)(b) of the Australian Citizenship Act 1948 because he was in prison at the time the application was being considered.

A previous report from the Department dated 15 July 2017 advised that, between 2010 and 2013, Mr X was convicted of multiple offences. In August 2011 he was sentenced and received fines and was placed on a Supervision Order.

The Department advised that, in December 2010 and April 2012, Mr X was informed of its intention to consider cancelling his visa under s 501 of the Migration Act 1958 (the Act) because of his criminal offending. On both occasions he received a formal warning.

In March 2015 Mr X was convicted of further offences and sentenced to a term of imprisonment. In July 2015 his visa was mandatorily cancelled under s 501 of the Act. Two weeks later, after serving part of his sentence, Mr X was detained on release from criminal custody.

In August 2015 Mr X requested the cancellation decision be revoked. In March 2017 the then-Assistant Minister decided not to revoke the cancellation. Mr X lodged an application for judicial review in the Federal Court (FCA) in April 2017 and the FCA reserved its judgment in December 2019.

International Health and Medical Services (IHMS) advised Mr X continued to be monitored and received treatment as required for his pre-existing conditions. IHMS reported there was no indication that his health conditions were being exacerbated by his current placement.

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 as of 14 January 2020, 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 1002833-O2

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

Ombudsman assessment

Mr X arrived in Australia in 1992 on a permanent visa with his mother, step-father and half-sister.

The Department of Home Affairs (the Department) advised that Mr X had a substantial criminal history in Australia dating back to 1993. In October 2015 Mr X was convicted of criminal offences and was sentenced to a period of imprisonment.

Mr X’s visa was mandatorily cancelled in January 2016 under s 501 of the Migration Act 1958. He was detained in February 2016 on his release from a correctional facility.

Mr X requested revocation of his visa cancellation and, in March 2017, the then-Assistant Minister decided not to revoke the decision. Mr X’s application for judicial review in the Federal Court (FCA) was dismissed in April 2019. At the time of the Department’s report, Mr X was awaiting the outcome of an

appeal of the FCA decision.

Mr X voluntarily departed Australia in December 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 1002835-O2

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

Ombudsman assessment

Mr X arrived in Australia in 1993 as a dependant on a permanent visa.

Mr X's criminal offending began in 1997. He was convicted of multiple offences and received fines, good behaviour bonds, driving disqualifications, suspended sentences and multiple prison sentences. In October 1998 he was convicted of another offence and sentenced to a period of imprisonment, which was reduced on appeal.

In October 2002 and November 2007 Mr X received formal warnings about the cancellation of his visa under s 501 of the Migration Act 1958 (the Act). In May 2015 he was convicted of further offences and was sentenced to a term of imprisonment. In September 2015 Mr X’s visa was mandatorily cancelled under s 501 of the Act. He was released from custody in February 2016 and detained.

In March 2017 the Minister decided not to revoke the cancellation of Mr X's visa. The Federal Court quashed the Minister's decision in December 2017 and remitted Mr X's case to the Department of Home Affairs (the Department) for reconsideration.

In March 2018 the reconsideration was referred to the Minister and, in June 2019, a delegate of the Minister decided not to revoke the cancellation. In August 2019 the Administrative Appeals Tribunal affirmed the delegate’s decision.

Mr X lodged a Protection visa application in November 2019, which was refused in February 2020. In March 2020 the Department advised the Ombudsman Mr X had sought merits review of the decision.

International Health and Medical Services advised Mr X was monitored and received treatment for ongoing mental health concerns.

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, as of March 2020, Mr X is awaiting the outcome of merits 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 1003107-O

This is the first 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 detained under the Migration Act 1958 (the Act) in November 1999 after arriving in Australia by sea. He was granted temporary protection in June 2000 and released from detention. In May 2007, following merits review by the Refugee Review Tribunal, Mr X was granted a Protection visa.

Mr X’s criminal offending began in June 2006. Between 2006 and 2016 he was convicted of several offences and his sentence included good behaviour bonds, a probation order, community service and a suspended prison sentence.

In May 2017 Mr X was convicted of further offences. He was sentenced to a term of imprisonment and received a good behaviour bond.

In June 2017 Mr X’s visa was mandatorily cancelled under s 501 of the Act and he requested the cancellation be revoked. He was released on parole in October 2017 and re-detained.

In March 2018 the Department of Home Affairs (the Department) commenced an International Treaties Obligations Assessment (ITOA) which remains ongoing.

In November 2018 a delegate of the Minister refused to revoke the cancellation of Mr X’s visa. In the decision, the delegate acknowledged that his case engaged non-refoulement obligations but concluded that Mr X presents an unacceptable risk of harm to the Australian community.

Mr X requested removal in May 2019 but withdrew his request three days later after the authorities of Country A advised it would not issue him a passport. The Department advised it is unable to involuntarily return people to Country A.

In August 2019 Mr X’s case was assessed to meet the guidelines for referral to the Minister under s 195A of the Act and a submission was being prepared. In April 2020 the Department advised the submission for the Minister’s consideration was in final clearance.

International Health and Medical Services advised that Mr X has not required treatment for any physical or mental health concerns.

Ombudsman recommendation

The Ombudsman notes that Mr X has been held in immigration detention for a cumulative period of more than three years and the Department’s consideration of an International Treaties Obligations Assessment has been ongoing since March 2018.

The Ombudsman also notes that the Department has been preparing a submission for Mr X’s case under s 195A of the Act since August 2019 and as of April 2020, the submission was in final clearance.

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 the finalisation of Mr X’s International Treaties Obligation Assessment.

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 1003163-O

This is the first s 486O assessment for Mr X who was held in immigration detention for a cumulative period of more than two years before he voluntarily departed Australia in August 2019.

Ombudsman assessment

Mr X first arrived in Australia in May 2006 with his family and was granted a visa on arrival.

Mr X’s criminal offending began in Australia in 2006. He was convicted of multiple offences for which he received fines, a probation order and a good behaviour bond.

In June 2014 Mr X was convicted of further offences and was sentenced to three terms of imprisonment, to be served concurrently. In March 2015 he was convicted of further offences and was sentenced to a term of imprisonment

In July 2015 Mr X’s visa was mandatorily cancelled under s 501 of the Migration Act 1958 (the Act). He was detained in September 2015 on his release from criminal custody.

In July 2016 the Minister revoked the cancellation decision and reinstated Mr X’s visa. He was released from detention the same day.

In August 2017 Mr X was convicted of more offences and sentenced to a term of imprisonment, suspended upon entering into a good behaviour bond. In March 2018 he was convicted of multiple offences. On appeal, he was sentenced to a term of imprisonment.

In May 2018 Mr X’s visa was mandatorily cancelled under s 501 of the Act. He was re-detained in June 2018 on his release from a correctional facility.

In December 2018 a delegate of the Minister decided not to revoke the mandatory cancellation decision. The Administrative Appeals Tribunal affirmed the decision in March 2019 and the Federal Court dismissed Mr X’s application for judicial review in July 2019.

Mr X was released from detention in August 2019 when he voluntarily departed Australia.

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 1003165-O

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

Ombudsman assessment

Mr X arrived in Australia in September 2008 as a dependent on a visa with his family.

The Department of Home Affairs (the Department) advised that Mr X’s criminal offending in Australia began in 2009. He was convicted of a number of offences and received a range of prison sentences and a fine.

In February 2017 Mr X was convicted of an offence and sentenced to a term of imprisonment. In March 2017 he was convicted of further offences and received a community corrections order.

In March 2017 Mr X’s visa was cancelled under s 501 of the Migration Act 1958 (the Act). He was detained in July 2017 on release from a correctional facility.

In May 2018 the Minister decided not to revoke the mandatory cancellation decision. In June 2018 Mr X sought judicial review in the Federal Court (FCA). In March 2020 the FCA remitted the matter to the Department for reconsideration.

Mr X was imprisoned in November 2018 following a court ordered warrant related to historical charges. He was re-detained in November 2018 after serving a period in criminal custody.

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 remains in detention because his visa was mandatorily cancelled under s 501 of the Act and as of March 2020, he was awaiting the outcome of the Department’s reconsideration of his request to revoke the cancellation of his visa.