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Migration Act 1958—Section 486O—Assessment of detention arrangements—Personal identifier 1001534-O4, 1002229-O4, 1002410-O4, 1002550-O3, 1002554-O3, 1002810-O3, 1002919-O1, 1003128-O, 1003129-O, 1003130-O—Commonwealth and Immigration Ombudsman’s reports—Report No. 12 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. 12 / 2020

Personal identifier: 1001534-O4, 1002229-O4, 1002410-O4, 1002550-O3, 1002554-O3, 1002810-O3, 1002919-O1, 1003128-O, 1003129-O, 1003130-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-1001534-04

(~ March 2020

The Hon Alan Tudge MP

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Parliament House CANBERRA ACT 2600

Dear Minister

Assessments under s 4860 of the Migration Act 1958

In accordance with s 4860 of the Migration Act 1958 (the Act) I am forwarding my assessment of 10 cases on the schedule (Attachment A) relating to 18 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 seven 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. When required, further information was requested under -s 486Q of the Act or s 8 of the Ombudsman Act 1976. For the purposes of further assessment, my Office conducted an interview with Mr X (1002919-01).

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 1001534-O4 2 Mr X 1 1980 2,193 IDF 14 June 2019 and 11 December 2019 9 September 2019

2 1002229-O4 N Mr X

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

4 1968

1980 2011 2015

2,194 2,194 2,194 1,615

CD CD CD CD

16 May 2019 and 19 November 2019 12 September 2019

3 1002410-O4 N Mr X

Ms X (wife) Miss X (daughter) Miss X (daughter) Miss X (daughter) Master X (son)

6 1978

1984 2001 2002 2015 2016

2,008 2,008 2,008 2,008 1,743 1,384

CD CD CD CD CD CD

29 May 2019 and 19 November 2019 12 September 2019

4 1002550-O3 N Ms X 1 1980 1,834 CD 14 June 2019 and 19 December 2019 12 September 2019

5 1002554-O3 N Mr X 1 1985 1,834 CD 18 June 2019 and 19 December 2019 12 September 2019

6 1002810-O3 2 Mr X 1 1974 1,460 IDF 18 June 2019 and 12 December 2019 9 September 2019

7 1002919-O1 1 Mr X 1 1985 1,279 IDF 11 June 2019 and 4 December 2019 31 July 2019

8 1003128-O 2 Mr X 1 1986 912 IDF 12 June 2019 and 11 December 2019 First Assessment

9 1003129-O N Mr X 1 1991 912 IDF 13 June 2019 and 13 December 2019 First Assessment

10 1003130-O N Mr X 1 1974 912 IDF 17 June 2019 and 12 December 2019 First Assessment

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

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

Name Mr X

Ombudsman ID 1001534-O4

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

Ombudsman assessment

Since the Ombudsman’s previous assessment, in June 2019 the Federal Court reserved its judgment of the Administrative Appeal Tribunal’s decision to affirm the refusal of Mr X’s Partner visa application under s 501 of the Migration Act 1958.

The Department of Home Affairs’ (the Department) report of 14 June 2019 advised that in December 2017 and August 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.

The Department’s report of 11 December 2019 advised that Mr X remains in an immigration detention facility because s 501E prevents him from lodging valid bridging visa applications.

The International Health and Medical Services report advised 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 a cumulative period of more than six and a half years and at the time of the Department’s report, he was awaiting the outcome of judicial review.

The Ombudsman notes that Mr X’s case has not been assessed against the guidelines under ss 195A and 197AB for consideration of a bridging visa or community placement since August 2018.

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

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

2. Commission a contemporary independent assessment of Mr X’s risk to the community to inform its assessment of his case against the ss 195A and 197AB 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

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

Ombudsman ID 1002229-O4

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

Ombudsman assessment

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

The Department of Home Affairs’ (the Department) report of 16 May 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 advised that the family was found to be refugees by the Government of an RPC.

The Department’s report of 19 November 2019 advised that, while the family have children under the age of five who are not yet attending school, they 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 complex physical and mental health concerns.

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, the family is subject to return to an RPC when they complete their treatment.

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

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

Name Mr X

Ms X (wife) Miss X (daughter) Miss X (daughter Miss X (daughter)

Master X (son)

Ombudsman ID 1002410-O4

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

Ombudsman assessment

Mr X, Ms X and their two elder children were transferred to a Regional Processing Country (RPC) in February 2014 and returned to Australia for medical treatment in November 2014. Their younger daughter and son were born in Australia following their temporary transfer.

The Department of Home Affairs’ (the Department) report of 29 May 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 advised that the family was found to be refugees by the Government of an RPC.

The Department’s report further advised that, while they have children under the age of five who are not yet attending school, the family will not be considered for Final Departure bridging visas under s 195A of the Migration Act 1958.

The International Health and Medical Services report advised that the family received treatment for complex physical and mental health concerns.

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, the family are subject to return to an RPC when they complete their treatment.

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

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

Name Ms X

Ombudsman ID 1002550-O3

This is the fourth s 486O assessment for Ms X who has remained in immigration detention for a cumulative period of more than five years.

Ombudsman assessment

Ms X was transferred to a Regional Processing Country (RPC) in January 2014 and returned to Australia for medical treatment in June 2015. Her son was born in Australia following her temporary transfer and is not yet subject to reporting under s 486N of the Migration Act 1958.

The Department of Home Affairs’ (the Department) report of 14 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 advised that Ms X was found to be a refugee by the Government of an RPC.

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

The International Health and Medical Services report advised that Ms X continued to receive treatment for complex mental health concerns.

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, she is subject to return to an RPC when she completes her treatment.

Ms X currently resides in the community under a residence determination, which provides her with health and welfare support. Notwithstanding her placement in the community, the Ombudsman is concerned about the risk Ms X’s long term and seemingly indefinite detention and the uncertain nature of her immigration pathway poses 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 1002554-O3

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

Ombudsman assessment

Mr X was transferred to a Regional Processing Country (RPC) in August 2013 and returned to Australia for medical treatment in January 2015.

The Department of Home Affairs’ (the Department) report of 18 June 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 Mr X was found to be a refugee by the Government of an RPC.

The Department’s report further advised that, in light 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 received treatment for complex physical and mental health concerns.

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 his placement in the community, the Ombudsman is concerned about the risk Mr X’s long term and seemingly indefinite detention and the uncertain nature of his immigration pathway poses to his health and welfare.

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

Name Mr X

Ombudsman ID 1002810-O3

Department ID 29233051947

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

Ombudsman assessment

Since the Ombudsman’s previous assessment, a delegate of the Minister reconsidered and refused to revoke the mandatory cancellation of Mr X’s visa under s 501 of the Migration Act 1958. In February 2019 the Administrative Appeals Tribunal affirmed the decision. In October 2019 the Federal Court dismissed Mr X’s application for judicial review.

The Department of Home Affairs’ (the Department) report of 18 June 2019 advised that Mr X remains in an immigration detention facility because s 501E prevents him from lodging valid bridging visa applications.

The Department’s report of 12 December 2019 advised that Mr X has no outstanding matters before the Department, tribunals or the courts and was on a removal pathway. The report also advised that in November 2019 Mr X demanded conditions for his removal which were unable to be met. Subsequently he refused to sign a request for removal form.

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 was likely to be protracted.

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

Ombudsman Recommendation

The Ombudsman notes that Mr X has been held in immigration detention for more than four years and at the time of the Department’s recent report, he had no outstanding matters before the Department, the courts or tribunals and was on a removal pathway.

The Ombudsman notes that involuntary removal to Country A is currently not possible.

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 length of time Mr X has remained in detention and the protracted nature of his removal, the Ombudsman recommends that the Department:

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

2. Commission a contemporary independent assessment of Mr X’s risk to the community, to inform its assessment of his case against the ss 195A and 197AB 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 1002919-O1

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

Ombudsman assessment

Mr X arrived in Australia in January 2006 as the holder of a Student visa. In August 2007 he lodged an application for a Skilled visa and was granted an associated bridging visa. In April 2012 his application was refused because he did not satisfy the criteria to be granted a visa. Subsequent merits and judicial reviews were unsuccessful.

In June 2014 Mr X’s Protection visa application was refused. In November 2014 the Refugee Review Tribunal affirmed the decision. In May 2016 Mr X lodged an application for judicial review in the Federal Circuit Court (FCC), which was dismissed because he did not lodge his application in the required timeframe.

In November 2015 Mr X’s bridging visa was cancelled under s 116 of the Migration Act 1958 following criminal charges. The Department of Home Affairs’ (the Department) report of 11 June 2019 advised that later that month Mr X was convicted of the offences and was sentenced to six months imprisonment.

The Department’s report advised that in June 2016 Mr X was detained on his release from a correctional facility. Four days later he lodged an application for judicial review of the FCC decision in the Full Federal Court (FFC). In December 2019 the FFC dismissed his application.

In March 2019 Mr X lodged an application for a bridging visa in association with his ongoing judicial review. The Department’s report advised that his application was invalid because his last bridging visa was cancelled under the Migration Regulations 1994.

The Department’s report of 4 December 2019 advised that Mr X remains in an immigration detention facility because he requires ministerial intervention to be granted a bridging visa.

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

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

Ombudsman Recommendation

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

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 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 1003128-O

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

Ombudsman assessment

Mr X was detained under the Migration Act 1958 in July 2012 after arriving in Australia by sea. He was granted a bridging visa in November 2012 and released from detention. His bridging visa ceased in February 2016 and he was re-detained in September 2017 after living unlawfully in the community.

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

The Department of Home Affairs’ (the Department) report of 12 June 2019 advised that in October 2017 Mr X lodged a request for intervention under s 417 for the Minister to substitute a more favourable decision of a tribunal and under s 48B to allow him to lodge a second valid visa application. The report advised that both requests were found to not meet the guidelines for referral to the Minister.

The Department’s report of 11 December 2019 advised that in April 2019 Mr X lodged another request for intervention under s 48B to allow him to lodge a second valid visa application. This request was under consideration.

The report also advised that in April 2019 Mr X’s case was referred for assessment against the s 195A guidelines for consideration of 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, he was awaiting the outcome of his request for intervention under s 48B which was lodged in April 2019.

The Ombudsman notes that in April 2019 Mr X’s case was referred for an assessment against the guidelines under s 195A which was still under consideration.

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 case against the s 195A guidelines.

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

ASSESSMENT BY THE COMMONWEALTH OMBUDSMAN TO THE ACTING MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Under s 486O of the Migration Act 1958

Name Mr X

Ombudsman ID 1003129-O

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

Ombudsman assessment

Mr X arrived in Australia in November 2007 as the holder of a humanitarian visa. His visa was mandatorily cancelled under s 501 of the Migration Act 1958 in May 2017 because he was sentenced to a term of imprisonment of 12 months or more.

The Department of Home Affairs’ (the Department) report of 13 June 2019 advised that Mr X has an extensive criminal history dating back to 2008. In September 2013 he was convicted of criminal offences and was sentenced to two years and eight months imprisonment. In May 2017 he was convicted of further offences and was sentenced to 14 months and six months imprisonment, to be served concurrently.

Mr X was detained in June 2017 following his release from a correctional facility. Eight days later he lodged a request for revocation of the cancellation of his visa. In June 2018 a delegate decided not to revoke the decision to cancel Mr X’s visa. In August 2018 the Administrative Appeals Tribunal (AAT) affirmed the decision.

In November 2018 Mr X lodged an application for judicial review in the Federal Court (FC). At the time of the Department’s report of 13 December 2019, a hearing 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 may pose to their physical and mental health.

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

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

Name Mr X

Ombudsman ID 1003130-O

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

Ombudsman assessment

Mr X arrived in Australia, with his wife and children, in February 2013 as the holder of a Refugee visa.

The Department of Home Affairs’ (the Department) report of 17 June 2019 advised that in September 2016 Mr X was convicted of criminal offences and was sentenced to 12 months imprisonment.

In October 2016 Mr X’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958. Five days later he lodged a request for revocation of the cancellation of his visa.

In June 2017 Mr X was detained on his release from a correctional facility.

In September 2017 a delegate of the Minister decided not to revoke the decision to cancel Mr X’s visa. In November 2017 the Administrative Appeals Tribunal affirmed the decision.

In March 2018 Mr X lodged an application for judicial review in the Federal Court (FC). At the time of the Department’s report of 12 December 2019, a hearing had not been scheduled.

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.

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

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