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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1001037-O4, 1001665-O4, 1001833-O3, 1002463-O4, 1002552-O3, 1002939-O1, 1003021-O1, 1003023-O1, 1003125-O, 1003132-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 16 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. 16 / 2020

Personal identifier: 1001037-O4, 1001665-O4, 1001833-O3, 1002463-O4, 1002552-O3, 1002939-O1, 1003021-O1, 1003023-O1, 1003125-O, 1003132-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-1001037-04

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 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. 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 1001037-O4 N Mr X 1 1988 2,738 CF 28 June 2019 and 27 December 2019 12 September 2019

2 1001665-O4 1 Mr X 1 1990 2,556 IDF 5 July 2019 and 2 January 2020 9 September 2019

3 1001833-O3 N Mr X 1 2001 2,379 CD 26 June 2019 and 30 December 2019 31 July 2019

4 1002463-O4 2 Mr X 1 1998 1,825 IDF 20 May 2019 and 15 November 2019 12 September 2019

5 1002552-O3 N Mr X and family

4 1977

1977 2008 2015

1,830 1,830 1,830 1,574

CD CD CD CD

18 June 2019 and 3 December 2019 12 September 2019

6 1002939-O1 1 Mr X 1 1968 1,277 IDF 11 July 2019 and 7 January 2020 9 September 2019

7 1003021-O1 N Mr X 1 1986 1,096 IDF 14 June 2019 and 16 December 2019 12 September 2019

8 1003023-O1 N Mr X 1 1990 1,095 CF 19 June 2019 and 16 December 2019 12 September 2019

9 1003125-O N Ms X 1 1985 925 CD 11 June 2019 and 12 December 2019 First Assessment

10 1003132-O N Mr X 1 1969 914 IDF 15 June 2019 and 16 December 2019 First Assessment

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 1001037-O4

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

Ombudsman assessment

Mr X was convicted of offences in December 2018 and sentenced to a term of imprisonment. His earliest date of release is in March 2020.

The Department of Home Affairs’ (the Department) report of 27 December 2019 advised that Mr X is unable to be granted a bridging visa on criminal detention grounds under s 73 of the Migration Act 1958 because he does not meet the definition under s 72 of an 'eligible non-citizen'. The Department’s report advised Mr X continues to be detained under s 189 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 is managed by the corrections authorities in 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 1001665-O4

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

Ombudsman assessment

In February 2019 the then-Assistant Minister indicated that Mr X’s case should be referred to the Minister for consideration under ministerial intervention powers.

The Department of Home Affairs’ (the Department) report of 5 July 2019 advised that Mr X has no outstanding matters before the Department, tribunals or the courts and has been on an involuntary removal pathway since August 2017.

The Department’s report further advised that in November 2017 the Department lodged an application on behalf of Mr X for a travel document with the authorities of Country A. There have been significant delays in gaining approval. The report stated that a travel document was expected to be issued shortly and his removal was scheduled to take place in August 2019. As a result of Mr X’s removal being scheduled, the ministerial submission in respect of his case was not referred to the Minister.

The Ombudsman’s previous assessment recommended that, given the significant length of time he has remained in detention and the absence of any recent behavioural or security concerns, Mr X’s case be assessed against the guidelines under s 195A of the Migration Act 1958 for the grant of a bridging visa.

On 9 September 2019 the Minister advised in a tabling statement that the Department was planning Mr X’s removal from Australia but, if circumstances change, the Department would prepare a submission for consideration under ministerial intervention powers.

The Department’s report of 2 January 2020 advised that Mr X’s removal was cancelled because the authorities of Country A did not issue a travel document. The report also advised that the s 195A submission for Mr X’s case was referred to the Minister for his consideration to grant Mr X a bridging visa. In December 2019 the Minister declined to intervene.

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

Ombudsman Recommendation

The Ombudsman notes that Mr X has been held in immigration detention for more than seven years and on an involuntary removal pathway since 2017.

The Ombudsman also notes that the Minister recently declined to grant Mr X a bridging visa under s 195A. Mr X’s involuntary removal is likely to be protracted because the authorities of Country A have not approved 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 a serious risk to his health and welfare.

Noting the significant length of time Mr X has remained in detention and the absence of any recent behavioural or security concerns, the Ombudsman recommends that the Department:

1. Assesses Mr X’s case against the s 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 1001833-O3

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

Ombudsman assessment

Mr X’s application for judicial review of the Immigration Assessment Authority’s decision to affirm the refusal of his Safe Haven Enterprise visa application was dismissed by the Federal Circuit Court in October 2018. Mr X lodged an application for judicial review in the Federal Court. The Department of Home Affairs’ (the Department) report of 30 December 2019 advised that the matter will be scheduled for hearing in February 2020.

The Department’s report also advised that Mr X’s case will not be considered for a bridging visa while he completes his Higher School Certificate.

The Ombudsman notes the government’s duty of care to detainees and is concerned 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 the outcome of judicial review and will remain in a community placement until he completes his Higher School Certificate.

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 1002463-O4

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

Ombudsman assessment

In August 2018 Mr X’s Safe Haven Enterprise visa (SHEV) application was refused under s 501 of the Migration Act 1958, due to his criminal history.

The Department of Home Affairs’ (the Department) report of 20 May 2019 advised that in December 2016 Mr X was convicted of criminal offences and sentenced to a period of juvenile detention. In December 2017 he was convicted of further offences and sentenced to another period of juvenile detention.

In November 2018 the Administrative Appeals Tribunal set aside the SHEV refusal decision and substituted it with the decision that Mr X should not be refused a SHEV under s 501.

The Department’s report of 15 November 2019 advised that in April 2019 Mr X was issued a Notice of Intention to Consider Refusal of his SHEV application. In August, September and October 2019 Mr X provided responses to the Department. At the time of the report, his SHEV application was still under consideration.

The Department’s report further advised that in October 2019 the Department referred Mr X’s case to the Minister under ss 195A and 197AB for consideration of a bridging visa or a community placement.

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

The Department’s report stated that a Special Needs Health Assessment stated that Mr X’s mental health issues were being exacerbated by his time in immigration detention.

Ombudsman Recommendation

The Ombudsman notes that Mr X has been held in immigration detention for a cumulative period of more than five years and, at the time of the report, continued to await the outcome of his Safe Haven Enterprise visa application lodged in June 2017.

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 length of time Mr X has remained in detention and in light of the advice of the Special Needs Health Assessment, the Ombudsman recommends that:

1. The Department expedites its assessment of Mr X’s Safe Haven Enterprise visa application, noting the AAT’s decision that Mr X should not be refused under s 501.

2. The consideration of Mr X’s case under ss 195A and 197AB be expedited.

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 1002552-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 years.

Ombudsman assessment

Mr X, Ms X and their elder child were transferred to a Regional Processing Country (RPC) in January 2014 and returned to Australia for medical treatment in May 2015. Their younger child was born in Australia following their temporary transfer.

The Department of Home Affairs’ (the Department) report of 18 June 2019 advised that as the family arrived after 19 July 2013 they remain liable for transfer back to an RPC on completion of their treatment.

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

The Department’s report advised that, while they have a child under the age of five who is 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 long term and indefinite detention and the uncertain nature of their immigration pathway poses to the family’s health and welfare.

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

Name Mr X

Ombudsman ID 1002939-O1

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

Ombudsman assessment

Mr X arrived in Australia in August 1975, with his mother and siblings and was granted a temporary entry permit on arrival. Following legislative changes in September 1994, he was considered to hold a Transitional (permanent) visa.

The Department of Home Affairs’ (the Department) report of 11 July 2019 advised that Mr X’s criminal history dates back to 1981. In May 2007 he was convicted of criminal offences and was sentenced to a term of imprisonment. His sentences were suspended after entering into a good behaviour bond.

The report also advised that Mr X came to the Department’s attention in March 2015 after police provided information to the Department.

In May 2016 Mr X’s visa was mandatorily cancelled by the Minister under s 501 of the Migration Act 1958 because he did not pass the character test. Three days later he was detained on release from criminal custody. The Department’s report advised that he did not lodge a request for revocation of the cancellation.

In June 2016 Mr X lodged an application in the Federal Court for judicial review of the Minister’s decision to cancel his visa. In December 2016 the Full Federal Court (FFC) set aside the decision and ordered that Mr X be released from immigration detention. On the same day Mr X’s visa was again

cancelled by the Minister under s 501 and he was re-detained. The Department’s report advised that he did not lodge a request for revocation of the cancellation.

Mr X lodged an application in the Federal Court for judicial review of the Minister’s second decision to cancel his visa. In July 2017 the FFC set aside the Minister’s decision and ordered Mr X’s release from immigration detention. Subsequently, Mr X was released from immigration detention.

In September 2017 Mr X’s visa was cancelled for a third time under s 501 and he was re-detained. The Department’s report advised that he did not lodge a request for revocation of the cancellation. In May 2018 Mr X sought merits review. In June 2018 the Administrative Appeals Tribunal found that it did not have jurisdiction to review the decision.

As of January 2020, Mr X had no outstanding matters before the Department, tribunals or the courts and was on an involuntary removal pathway.

The report advised that Mr X has refused to provide evidence of his citizenship and the Department assessed him not to be an Australian citizen. The Department has engaged with authorities of Country A and Country B to obtain travel documents for Mr X. At the time of the Department’s report of 7 January 2020, authorities had been unable to determine Mr X’s nationality which has delayed his removal. The Department will continue to try to obtain travel documentation for Mr X.

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 of a bridging visa. The assessment was still being progressed at the time of the Department’s latest report.

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

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 7 January 2020, his case was being assessed against the s 195A guidelines.

The Ombudsman also notes that Mr X is on an involuntary removal pathway. The Department has been unable to determine his citizenship and Mr X is unwilling to participate in the process, which has delayed his removal.

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.

Noting the process commenced in July 2019, the Ombudsman recommends that the Department:

1. Expedites its assessment of Mr X’s 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 1003021-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 February 2007 as the holder of a three year Student visa. His visa ceased in March 2010 while he was in criminal custody and he became an unlawful non-citizen. He was detained under the Migration Act 1958 in December 2016 on his release from a correctional facility.

The Department of Home Affairs’ (the Department) report of 14 June 2019 advised that Mr X was convicted of an offence in March 2009 and sentenced to a term of imprisonment. In August 2012 he was convicted of a further offence and was sentenced to a term of imprisonment, to be served concurrently.

In January 2013 Mr X lodged a Protection visa application, which was refused in March 2015. His applications for merits and judicial review were unsuccessful. In March 2019 the High Court refused to hear his case.

The Department’s report advised that in April 2018 Mr X’s case was found to not meet the guidelines for referral to the Minister under s 417 for the Minister to substitute a more favourable decision of a tribunal.

In March 2019 Mr X’s case was referred for involuntary removal action because he has no ongoing matters before the Department, courts or tribunals. The Department’s recent report of 16 December 2019 advised that the Department continues to work with the authorities of Country A to

facilitate Mr X’s removal from Australia.

In May 2019 Mr X lodged another Protection visa application. The Department’s report advised that in May and July 2019 Mr X’s case was found to not meet the guidelines for referral to the Minister under s 48B to allow him to lodge a further valid application for protection.

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

The Ombudsman notes that Mr X has been held in immigration detention for more than three years, is not owed protection and is on an involuntary removal pathway.

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 1003023-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 was detained under the Migration Act 1958 in December 2016 after he was refused immigration clearance.

The Department of Home Affairs’ (the Department) report of 16 December 2019 advised that Mr X is serving a term of imprisonment for an offence. His earliest release date is in September 2027.

The Department’s report advised that, as Mr X continues to be detained under s 189, 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 Ms X

Ombudsman ID 1003125-O

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

Ombudsman assessment

Ms X was detained under the Migration Act 1958 in August 2013 after arriving in Australia by sea. She was transferred to a Regional Processing Country (RPC) in January 2014 and returned to Australia for medical treatment in November 2017. Her child was born in Australia following her temporary transfer and is not yet subject to reporting under s 486N.

The Department of Home Affairs’ (the Department) report of 11 June 2019 advised that as Ms X arrived after 19 July 2013 she remains liable for transfer back to an RPC on completion of her treatment.

The Department’s report stated that Ms X was found to be a refugee by the Government of an RPC.

The Department’s report advised that Ms X married another transferee, Mr X, while in an RPC. Mr X was returned to Australia in May 2019. At the time of the Department’s report of 19 December 2019, Ms X was residing in the community under a residence determination in City A, separate from her husband.

The Department’s report further advised that in February 2019 Ms X was informed she and her child were accepted for resettlement in Country A, however she chose not to accept the offer.

The Department’s report advised that, while Ms X has a child under the age of five who is not yet attending school, the family will not be considered for Final Departure bridging visas under s 195A.

The International Health and Medical Services (IHMS) report advised that Ms X received treatment for complex physical and mental health concerns. IHMS advised that Ms X’s separation from her husband was negatively affecting her mental health.

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

Notwithstanding Ms X’s placement in the community, which provides her with health and welfare support, the Ombudsman is concerned about the risk long term and indefinite detention poses, and the uncertain nature of her immigration pathway, to her 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 1003132-O

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

Ombudsman assessment

Mr X arrived in Australia in September 1993 as the holder of a Business visa. He was granted a Protection visa in September 1995 and a five year Resident Return visa in April 2008.

The Department of Home Affairs’ (the Department) report of 15 June 2019 advised that Mr X has a criminal history dating back to 1995. In May 2016 he was convicted of an offence and sentenced to a term of imprisonment.

In February 2017 Mr X’s visa was mandatorily cancelled under s 501 the Migration Act 1958. Four days later Mr X lodged a request for revocation of the cancellation of his visa. He was detained in June 2017 on his release from a correctional facility.

In July 2018 the then-Assistant Minister decided not to revoke the decision to cancel Mr X’s visa.

The Department’s report advised that Mr X’s application for judicial review in the Federal Court was dismissed in March 2019. In August 2019 the Full Federal Court adjourned his application for judicial review until a judgment was made in another case. As of 16 December 2019, a hearing date had not been scheduled.

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

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

The Ombudsman notes that at the time of the Department’s recent report, Mr X was awaiting the outcome of judicial review.