By Migration Agent Sydney | 10 Jan 2017
The Commonwealth Ombudsman investigates the administrative actions of Australian Government agencies and officers. An investigation can be conducted as a result of a complaint or on the initiative of the Commonwealth Ombudsman.
Most complaints to the Ombudsman are resolved without the need for a formal report. The
Ombudsman is able to culminate an investigation by preparing a report that contains the opinions and recommendations of the Ombudsman.
A report can be prepared if the Ombudsman is of the opinion that the administrative action under investigation was unlawful, unreasonable, unjust, oppressive, improperly discriminatory, or otherwise wrong or unsupported by the facts; was not properly explained by an agency; or was based on a law that was unreasonable, unjust, oppressive or improperly discriminatory.
A report can also be prepared to describe an investigation, including any conclusions drawn from it, even if the Ombudsman has made no adverse findings.
A report by the Ombudsman is forwarded to the agency concerned and the responsible minister. If the recommendations in the report are not accepted, the Ombudsman can choose to furnish the report to the Prime Minister or Parliament.
SUMMARY OF FINDINGS
The Ombudsman’s office has a long standing interest in the administration of s 501 of the Migration Act 1958 (the Act) and in 2006 completed an own motion investigation, Administration of s 501 of the Migration Act 1958 as it applies to long term residents.
This report was critical of the quality of information provided to the decision maker, in particular that the then Department of Immigration did not always provide the minister with all relevant information, especially mitigating information, about long term Australian residents when considering the cancellation of their visa.
Section 501 was changed on 11 December 2014 by the passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. Changes included the insertion of s 501(3A) that requires mandatory cancellation of visas in certain circumstances. After the passage of this legislation the number of visas cancelled under s 501 increased from 76 in 2013-14 to 983 in 2015-16.
Following the passage of the above legislation, complaints about the following aspects of the administration of s 501:
These concerns led to the decision by the Ombudsman’s office to undertake this investigation.
The Department of Immigration has a stated aim for s 501 visa cancellation cases to cancel well before the estimated date of release where possible so that any revocation process can be finalised while in prison.
The Department of Immigration has failed to achieve this. Through prolonging family separation, this administrative failure has also undermined the other aim of the department to give primary consideration to the best interests of the minor children of persons subject to visa cancellation.
The Ombudsman’s investigation concluded the efficient administration of s 501 suffers from:
The delays and backlog stem from the increase in visa cancellations following the introduction of the s 501(3A) mandatory cancellation provision combined with the large number of persons seeking revocation of their visa cancellation.
Other administrative problems exacerbating delays in identifying those subject to cancellation and concluding the revocation request process include:
The investigation by the Commonwealth Ombudsman included interviewing people detained as a result of having their visa cancelled under s 501.
The concerns raised by the interviewees were:
The report of the Commonwealth Ombudsman endorses the Department of Immigration’s aim of informing persons subject to visa cancellation under s 501 of their visa cancellation before the end of their custodial sentence with the outcome of a revocation request determined before a prisoner’s likely parole date.
This approach will minimise the amount of time spent in detention, the impact on detainees and their families as well the impact on the detention network and compliance areas of the Australian Border Force (ABF).
The following recommendations are made in support of support of the above outcome.
The Department of Immigration establish Memoranda of Understanding with all state and territory correction services that facilitates an induction process in prisons that identifies prisoners who are not Australian citizens and establishes timeframes for the provisions of prisoner lists to the department.
The Department of Immigration examine options for improving the processes for obtaining criminal history and sentencing remarks.
The Department of Immigration -
The Department of Immigration increase awareness amongst staff of the literacy problems some prisoners face and review the format in which information regarding the cancellation of visas is provided to prisoners.
The Department of Immigration better facilitate access to information on post departure support available for prisoners and their families.