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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1000854-O3, 1001618-O4, 1002294-O4, 1002553-O4, 1002813-O3, 1002841-O1, 1003033-O1, 1003141-O, 1003150-O, 1003339-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 17 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. 17 / 2020

Personal identifier: 1000854-O3, 1001618-O4, 1002294-O4, 1002553-O4, 1002813-O3, 1002841-O1, 1003033-O1, 1003141-O, 1003150-O, 1003339-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-1000854-03

>-3 April 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 five 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 1000854-O3 N Mr X 1 1977 3,104 CF 27 June 2019 and 23 December 2019 12 September 2019

2 1001618-O4 N Mr X 1 1986 2,657 IDF 26 June 2019 and 5 December 2019 12 September 2019

3 1002294-O4 N Mr X 1 1993 2,192 CD 16 July 2019 and 16 January 2020 12 September 2019

4 1002553-O4 N Mr X 1 1974 1,834 IDF 13 June 2019 and 17 December 2019 12 September 2019

5 1002813-O3 N Mr X 1 1992 1,460 IDF 17 June 2019 and 17 December 2019 12 September 2019

6 1002841-O1 N Mr X and family

4 1977

1977 2011 2017

1,280 1,280 1,280 782

CD CD CD CD

2 July 2019 and 21 August 2019 12 September 2019

7 1003033-O1 2 Mr X 1 1996 1,095 IDF 12 July 2019 and 9 January 2020 17 September 2019

8 1003141-O 1 Mr X 1 1994 912 IDF 2 July 2019 and 31 December 2019 First Assessment

9 1003150-O 2 Mr X 1 1993 912 IDF 17 July 2019 and 15 January 2020 First Assessment

10 1003339-O N Mr X 1 1976 2,192 IDF 4 July 2019 and 3 January 2020 12 September 2019

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

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 1000854-O3

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

Ombudsman assessment

Mr X continues to serve a sentence of imprisonment for a criminal offence. His earliest date of release is in April 2021.

In June 2018 Mr X’s Safe Haven Enterprise visa application was refused.

The Department of Home Affairs’ (the Department) report of 23 December 2019 advised Mr X continues to be detained under s 189 of the Migration Act 1958 and therefore his days in criminal custody are counted for the purposes of reporting under s 486N.

The Department’s case management services for Mr X ceased following his placement in a correctional facility. His health and welfare are managed by the corrections authorities of State A.

The Ombudsman notes that Mr X continues to be detained for immigration purposes while serving a custodial sentence in a correctional facility.

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 1001618-O4

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

Ombudsman assessment

Mr X’s Safe Haven Enterprise visa application was refused in July 2018. Mr X lodged an application for judicial review in August 2018 in the Federal Circuit Court and the matter was scheduled for hearing in February 2020.

The Department of Home Affairs’ (the Department) report of 26 June 2019 advised that Mr X's case was included in the long term detention submission referred to the then-Assistant Minister. In February 2019 the then-Assistant Minister requested further information about Mr X’s case in order to make a decision. At the time of the Department’s report, an additional brief was being prepared for Mr X’s case to be progressed.

The Department’s report of 5 December 2019 advised that Mr X’s case was referred to the Minister for consideration for a bridging visa or a community placement under ss 195A and 197AB of the Migration Act 1958. In October 2019 the Minister declined to intervene.

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

The Ombudsman notes that at the time of the Department’s recent 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 1002294-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 transferred to a Regional Processing Country (RPC) in October 2013 and returned to Australia for medical treatment in February 2014.

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 the Government of an RPC found Mr X to be a refugee.

The Department’s report further 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 currently resides in the community under a residence determination, which provides him with health and welfare support. Notwithstanding Mr X’s 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 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

Ombudsman ID 1002553-O4

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

Ombudsman assessment

Mr X arrived in Australia in 2000 on a Student visa. His visa was cancelled in 2002 because of non-compliance with the visa conditions. He lived unlawfully in the community for 12 years until he was located in December 2014 and detained under the Migration Act 1958. Between December 2014 and March 2017 a delegate declined three bridging visa applications from Mr X because the delegate was not satisfied he would abide by the conditions.

In August 2018 the Administrative Appeals Tribunal affirmed the decision to refuse Mr X’s Protection visa application. In February 2019 Mr X lodged an application for judicial review in the Federal Circuit Court (FCC).

The Department of Home Affairs’ (the Department) report of 13 June 2019 advised that Mr X’s court matter was a barrier to his removal and he is eligible to lodge valid bridging visa applications. The report stated that Mr X had recently declined to lodge bridging visa applications.

The Department’s report of 17 December 2019 stated that Mr X had advised his case manager multiple times he was happy with his current situation and had no intention of applying for a bridging visa.

In November 2019 the FCC dismissed Mr X’s application for judicial review. In December 2019 he lodged an application for judicial review in the Full Federal Court. As of 17 December 2019, a hearing had not been scheduled.

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 is eligible to lodge his own bridging visa applications and, as of 17 December 2019, he 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 1002813-O3

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

Ombudsman assessment

In November 2018 Mr X’s case was found to not meet the guidelines for referral to the Minister for consideration of a bridging visa under s 195A of the Migration Act 1958.

In April 2019 Mr X lodged an application for a Protection visa. The Department of Home Affairs’ (the Department) report of 17 December 2019 advised that in August 2019 Mr X requested he be removed from Australia. Five days later he withdrew his Protection visa application.

In November 2019 Mr X withdrew his request for removal and informed a delegate he wanted to lodge a new Protection visa application. As of 17 December 2019, Mr X had not submitted a new application and had advised his Status Resolution officer he was awaiting legal advice.

The Department’s report advised that s 501E prevents Mr X 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.

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 at the time of the Department’s report, Mr X was awaiting legal advice before submitting a new Protection visa application.

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 1002841-O1

This is the second s 486O assessment for Mr X, Ms X and their children who have been in immigration detention for a cumulative period of more than three and a half years.

Ombudsman assessment

Mr X, Ms X and their elder child were transferred to a Regional Processing Country (RPC) in May 2014 and returned to Australia for medical treatment in November 2016. Their younger child was born in Australia following their temporary transfer.

The Department of Home Affairs’ (the Department) report of 2 July 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 Government of an RPC found the family to be refugees.

The Department’s report 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 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 their placement in the community, the Ombudsman is concerned about the risk 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 1003033-O1

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

Ombudsman assessment

Mr X arrived in Australia in August 2010 as the holder of a humanitarian visa. In October 2016 his visa was mandatorily cancelled under s 501 of the Migration Act 1958 because of his extensive criminal history. Three weeks later he requested revocation of the cancellation.

The Department of Home Affairs’ (the Department) report of 12 July 2019 advised that Mr X was convicted of criminal offences and was sentenced to a term of imprisonment.

Mr X was detained in January 2017 on his release from a correctional facility.

In October 2017 the then-Assistant Minister decided not to revoke the decision to cancel his visa. Mr X’s application for judicial review in the Federal Court was dismissed in May 2018.

In May 2018 Mr X lodged a Protection visa application. The Department’s report advised that in February 2019 his application was refused on the grounds that he did not satisfy criteria under s 36(1C) because he was considered a danger to the Australian community. In October 2019 the Administrative Appeals Tribunal (AAT) remitted Mr X’s case back to the Department with the direction that Mr X was not considered to be a danger to the Australian community.

The Department’s report of 9 January 2020 advised that, following the AAT’s decision, Mr X’s case was referred for a character assessment under s 501.

The Department’s report further advised that in November 2019 Mr X was issued a Notice of Intention to Consider Refusal of his Protection visa application under s 501. The report advised that Mr X provided a response in December 2019 and the assessment of his application was ongoing.

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

Ombudsman Recommendation

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

The Ombudsman also notes that Mr X’s 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, noting the AAT’s direction that Mr X is not a danger to the community.

2. Explores placement options that are more appropriate to manage Mr X’s mental health concerns.

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 1003141-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 was detained under the Migration Act 1958 in November 2012 after arriving in Australia by sea. He was granted a bridging visa in March 2013 and released from detention.

The Department of Home Affairs’ (the Department) report of 2 July 2019 advised that Mr X has a criminal history dating back to October 2015. In April 2016 he was charged with further offences. His bridging visa was cancelled under s 116 in May 2016 because of his previous convictions and outstanding charges.

The Department’s report advised that in September 2016 Mr X was convicted of more offences and sentenced to a term of imprisonment. In September 2017 he was convicted of further offences and sentenced to a term of imprisonment which took into consideration time already served.

Mr X was re-detained in October 2017 on his release from a correctional facility.

In April 2018 Mr X’s Safe Haven Enterprise visa (SHEV) application was refused. In June 2018 the Immigration Assessment Authority (IAA) affirmed the decision. In August 2019 the Federal Circuit Court set aside the decision and remitted his case to the IAA for reconsideration according to law. In November 2019 the IAA again affirmed the decision. The Department’s response to a request for information on 26 March 2020 advised that Mr X had not sought judicial review of the IAA’s decision.

The Department’s report advised that in November 2019 Mr X requested to speak with a removals officer because he wanted to return to Country A. However, two days later he refused to attend the interview. The report stated that, as Mr X did not sign a request for removal form, the Department is unable to facilitate his removal because the government of Country A does not accept involuntary returns.

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

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 a cumulative period of more than two and a half years and the Department is unable to facilitate his involuntary removal.

The Ombudsman is concerned that Mr X is likely to remain in immigration detention for a prolonged period. This poses a significant risk to his health and welfare.

The Ombudsman recommends that the Department:

1. Assesses Mr X’s case against the ss 195A and 197AB guidelines for consideration of a bridging visa or a community placement.

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 1003150-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 was detained under the Migration Act 1958 in August 2013 after arriving in Australia by sea. He was granted a bridging visa in March 2015 and released from detention. His bridging visa was cancelled under s 116 in May 2018 following criminal charges.

The Department of Home Affairs’ (the Department) report of 17 July 2019 advised that in June 2018 Mr X was convicted of the offences and sentenced to a term of imprisonment. In January 2019 he was convicted of another offence and sentenced to a further term of imprisonment He was re-detained in February 2019 on his release from a correctional facility.

In September 2018 Mr X’s Safe Haven Enterprise visa application was refused. His applications for merits and judicial review were unsuccessful.

The Department’s report advised that Mr X had no outstanding matters before the Department, tribunals or the courts and was on an involuntary removal pathway. 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 is likely to be protracted.

In October 2019, because of the barriers to his removal, Mr X’s case was referred for an assessment against the guidelines under s 195A for consideration of a bridging visa. The Department’s report of 15 January 2020 advised that the assessment was ongoing.

The Department’s report advised Mr X remains in an immigration detention facility because he requires ministerial intervention to be granted 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 report, had no outstanding matters before the Department, courts or tribunals and was on a removal pathway.

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.

If Mr X’s case does not meet the s 195A guidelines for referral to the Minister, the Ombudsman recommends that the Department:

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

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 1003339-O

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

Ombudsman assessment

Since the Ombudsman’s previous assessment, Mr X requested an urgent injunction in January 2019 to stop his removal until his application before the Federal Court (FC) had been determined. In June 2019 the hearing for an injunction was adjourned and has not been rescheduled.

The Department of Home Affairs’ (the Department) report of 4 July 2019 advised that Mr X filed an application in the FC and a mediation was scheduled for December 2019.

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

The Department’s report advised that Mr X has no outstanding matters before the Department or tribunals. His matter before the FC is not considered a barrier to his removal and he is on an involuntary removal pathway. However the report also advised the authorities of Country A are not willing to issue travel documents for involuntary returns and, therefore, Mr X’s removal is expected to be protracted.

Mr X has multiple convictions dating back to 1996. In September 2019 he was charged with a criminal offence and was expected to appear before a court in March 2020. The report advised that Mr X is of interest to police after an alleged offence in September 2019.

The Department advised that Mr X remains in an immigration detention facility because s 501E of the Migration Act 1958 prevents him from lodging valid bridging visa applications. The report stated that he requires ministerial intervention to be granted a bridging visa and Status Resolution officers monitor his case for referral for guidelines assessments.

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

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.