MARY DURKIN
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative
Law: Protection of Individual
and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Mary Durkin
Senior Assistant Ombudsman
Office of the Commonwealth Ombudsman
External Scrutiny of Immigration Administration
The Changing Role of the Commonwealth and Immigration Ombudsman
Mary Durkin, Senior Assistant Ombudsman and
Prof. John McMillan, Commonwealth and Immigration Ombudsman
[Speaking notes for an address to an AIAL Forum, Surfers Paradise, June 2006]
The recent changes in the work of the Ombudsman in relation to immigration are best understood in the broader context of other changes in the office. I begin by briefly describing that broader context.
1 The changing face of Ombudsman work
· Growth in the size of the office
For much of its life the office has been relatively stable. For example, staff numbers grew from 72 to 82 between 1990-2003. Since then staff numbers have grown to 150, largely but not solely due to the new immigration work.
· Different approach to complaint work
The core business of the office remains the handling of individual complaints. However, in the context of a government system that is large and complex, the objectives of the office will never fully be met unless it is more strategic in addressing the problems in government administration raised by those complaints. For that reason the office pays greater attention to identifying systemic problems in government administration, and working with agencies to improve decision-making and service delivery to the public. For example, the office has recently published own motion reports on FOI administration in Australian Government agencies, the management of minors in the Australian Defence Force, and the super co-contribution under taxation law. We are a principal partner in a large research project on whistleblowing disclosures in the public sector, being conducted jointly with a University research centre and other oversight agencies.
· Additional functions
In addition to the core functions of complaint handling and own motion inquiries, the office has an important role in compliance auditing of law enforcement agencies. Specifically, the office routinely inspects the records of law enforcement agencies (the Australian Federal Police and Australian Crime Commission) to ensure their compliance with detailed statutory requirements applying to telephone interception, use of surveillance devices and controlled operations. A team of five staff within the office undertake the compliance auditing work. Another example of a special function developed by the office is conducting a mutual support network for Ombudsman offices in the Asia-Pacific region (undertaken by a team of three staff).
· Additional jurisdiction
A great deal of government services are now provided to the public by private sector firms pursuant to a contract with a government agency – for example, the management of immigration detention centres, the Job Network, skills recognition, and family counselling. Under amendments to the Ombudsman Act in 2005, the office now has jurisdiction over government service providers. In short, we have crossed the public/private divide in a manner that other administrative law review mechanisms have not.
· Specialist Ombudsman roles
The Commonwealth Ombudsman now hosts a range of specialist Ombudsman roles – Defence Force Ombudsman, Taxation Ombudsman, Immigration Ombudsman, Postal Industry Ombudsman and (soon) Law Enforcement Ombudsman. The apt description of the office is that it is a generalist office hosting a cluster of specialities. The reason for this transformation in the structure and style of the office is to ensure that it can provide a specialist focus on important and sensitive areas of government administration. The conferral of these specialist functions on an existing office meant, in the case of the Immigration Ombudsman role, that the office was able to commence the new function within a matter of weeks of the function being conferred.
2 Overview of the Immigration Ombudsman role
· Background to the new function
The Immigration Ombudsman role and related functions were conferred on the office in 2005. The background is reasonably well known. The inquiries into the immigration detention of Cornelia Rau and Vivian Alvarez drew attention to serious problems in immigration administration that required further inquiry and analysis. It became steadily apparent that the inquiry into these sensitive and controversial issues could best be undertaken by an agency that enjoyed statutory inquiry powers and immunities, and could commit itself to this project for an indefinite period. These inquiries coincided with a public and parliamentary debate about immigration detention, that involved many government parliamentarians and senior ministers. The upshot was that a substantial reform program was implemented in the immigration portfolio, involving the initial commitment of an additional $230M to the Immigration Department in 2005, and a further injection of $495M in the 2006-07 budget. One element of this reform program was the conferral upon the Commonwealth Ombudsman of the specialist role of Immigration Ombudsman, together with new statutory functions and additional resources.
· Major areas of activity
I shall briefly outline the major areas of activity now being undertaken by the office under its Immigration Ombudsman role.
Ø Complaint handling
The office has always had and continues to discharge the core function of handling complaints from members of the public about immigration administration. We receive about 1200 complaints each year; the number will probably jump to about 1500 in the current year in response to the higher profile of the office. The main topic of complaint has traditionally been visa processing. For the first time this year the trends indicate that detention related complaints will surpass visa complaints.
Ø Auditing and own motion inquiries
The office has recently published a couple of reports on immigration issues that stemmed from own motion investigations. One report concerned the cancellation of visas on bad character grounds under s 501 of the Migration Act (popularly known as the criminal deportation power). The other report concerned the treatment of a frail-aged visitor to Australia, Ms Agha, who died a couple of days after being declared fit to return to Lebanon at the expiration of her tourist visa.
Ø Legislative amendments
As noted earlier, the legislative amendments last year that conferred the Ombudsman with the title of Immigration Ombudsman, also included an expansion of the Ombudsman’s jurisdiction in relation to government contractors and subcontractors. At the same time we sought legislative changes to provide the Ombudsman’s offices with greater efficiency in dealing with immigration matters. These included clarifying that departments are not in breach of privacy laws by providing information to the Office of the Ombudsman and to facilitate a sensible approach to information exchanges rather than conducting peripheral debates about access to documentation. We also sought an amendment to the Migration Act 1958, which removed a provision that had prevented the Ombudsman’s office and the Human Rights and Equal Opportunity Commission from directly contacting detainees. The provision was removed in relation to the Ombudsman’s office only.
Ø Two year detention review
More is said below about this specialist function.
Ø Investigation of referred cases
More is said below about this specialist function.
3 Two year detention review
· Description of the function
Section 486O of the Migration Act provides that the Ombudsman, upon receipt of a report from the Department of Immigration (DIMA), is to provide the Minister with an assessment of the appropriateness of the arrangements for the detention of a person who has been in immigration detention for two years or more. DIMA’s report must be provided to the Ombudsman within 21 days of a person having been in detention for two years. If the person remains in detention, a new report to the Ombudsman is to be prepared at each six monthly intervals. The Ombudsman’s report to the Minister is to be provided as soon as practicable, and is to be tabled in the Parliament within 15 sitting days.
· Developing the function
There was no precedent for this new function; and, as is often the case, the guidance provided by the legislation is rather slight. A big challenge for the office was to decide how the function would be discharged and the format of reports to the Minister. This all had to be done very quickly, as the first reports by DIMA to the Ombudsman started arriving within weeks of the legislation being debated and then commencing operation. At the same time, the office had to recruit a substantial number of new staff to discharge the function and occupy new premises. We have published a number of Immigration Bulletins on the Ombudsman website (www.ombudsman.gov.au) that explain how we went about this task. Following are some of the difficult public law issues we had to grapple with in the developing the new function.
Ø Review of Ministerial action
The Ombudsman does not have jurisdiction under the Ombudsman Act to investigate actions taken by a Minister. And yet many of the decisions that either have been or can be made in respect of a person who is in long term detention are decisions of the Minister. The approach that we have adopted is that Ombudsman recommendations to the Minister in the immigration reports are generally framed only as a recommendation that the Minister consider an issue, rather than as a recommendation as to the course of action the Minister should take. On some occasions the reports go further and express support for a particular substantive outcome.
Ø Criteria/standard for review
The Ombudsman is limited to the function of making a recommendation – but of what kind? The general position we have adopted is that we are not well-placed to undertake merit review of all the issues concerning a person’s detention. For example, many people in long term detention have been denied a protection visa and are disputing that denial in tribunal and court proceedings and submissions to the Minister. Because of time and resource limitations and the available evidence, we are not in a position to express a definitive view on the merits of a person’s visa claim, though we do sometimes draw attention to aspects of a claim that may not have been tested in earlier proceedings or that may have changed since the case was last heard by a court or tribunal. Similarly, we are not in a position to express a specialist view on a person’s physical and mental health, but instead draw attention to the salient issues arising in reports provided to us; sometimes we recommend that further diagnosis or treatment is required.
Ø Procedure and format of reports
We decided that each person on whom a report is being prepared should be given an opportunity to be interviewed and to provide other information. We have also been prepared to talk to legal representatives and supporters. The process of arranging interviews is sometimes difficult and lengthy, because people are detained or are living at different locations and in different facilities around Australia; interpreter facilities generally have to be arranged also. The format of each report is largely the same – about 3-4 pages, dealing with the circumstances of a person’s detention, visa claims and litigation, their health, family issues, attitude to detention or removal, problems occurring in detention, and the Ombudsman’s recommendations on matters such as detention arrangements and whether the grant of a visa should be considered. A report is made available to a person when it has been tabled by the Minister. A copy of the report with identifying details deleted, together with the Minister’s tabling statement, is published on the Ombudsman website.
Ø Philosophy Ombudsman should bring to role
The conferral of the function upon the Ombudsman is an important factor in delineating the nature of the function. An important part of the Ombudsman’s role is to provide an independent but balanced comment upon issues arising in government administration. It is important that we understand and convey the views of those upon whom we are reporting, but without becoming an advocate in their cause. Many aspects of immigration detention reflect decisions made at the political level by parliament and governments – such as the policy of mandatory detention and removal, and concerning the grant of visas. In expressing comments and making recommendations the Ombudsman is not constrained by current practice or policy, but nor should the Ombudsman overlook that it is ordinarily more appropriate for major or sensitive policy issues to be debated and determined in the parliamentary and public forum.
Ø Prioritising cases
In the first six months of commencing this function we received nearly 200 reports from DIMA concerning people who had been in detention for more than 2 years, many of whom were still in detention at the time of the report. We therefore had to make some difficult choices about prioritising the cases for an assessment and report to the Minister and Parliament. Not surprisingly we received many submissions from detainees and their representatives requesting that priority be given to their case. The order of priority we set was to deal with the cases of those who had been in detention the longest, with further priority given to those who presented with mental health concerns, or who have family members who are directly or indirectly affected by their detention.
· Progress to date
Ø No of cases, reports and responses
When the reporting function commenced on 29 June 2005 there were 149 people who had at that stage been in detention for more than 2 years and were subject to a report. At the end of June 2006, the office had received 235 reports from DIMA concerning people who had been in detention for two years. In 65 cases the office had received a second report, that is, the person had been in detention for a further six months since the first report was received. The Ombudsman’s office had interviewed 167 people, and prepared reports on 70 cases. The Minister had tabled responses to 66 of those reports. Many of those about whom reports had been received from DIMA, and on whom the Ombudsman’s office was still to report, were no longer in detention. Some others were in detention but subject to a residential determination. The number of people who had been in detention for more than 2 years was substantially reduced to about 39.
The Ombudsman’s recommendations to the Minister have received a mixed reaction. Many of the recommendations are along the lines that the Minister give consideration to an issue (eg, consider a submission or whether to grant a visa) within a specified time frame. Whether the Minister has complied with that recommendation does not necessarily show a great deal about how well the Ombudsman’s recommendations have been received. However, the raw statistics are that of the 66 reports containing 106 different recommendations, the Minister agreed to 54 (51%), disagreed with 26 (25%), and delaying a decision on a further 25 (24%). One recommendation was no longer relevant because the person had left Australia.
Of the 26 recommendations where the Minister disagreed with the Ombudsman, 12 (46%) concerned the grant of a bridging visa; 11 (42%) concerned the Ombudsman’s recommendation that the Minister make a decision before tabling of the report in Parliament; and the remaining three (12%) involved consideration of an alternative to detention, the issue of a permanent visa or the revocation of a decision to cancel a visa.
It should be noted that this data is an analysis of the responses in the Minister’s statements tabled in Parliament. The Ombudsman is aware that on some occasions a decision providing a different outcome has followed the tabling statement.
Ø Profile of cases
There is a great diversity in the cases of those who have been in long-term detention and are subject to this reporting requirement. As to the 66 people on whom reports had been tabled by June 2006, 18 had arrived in Australia on a tourist visa and had overstayed, 22 had arrived unlawfully (eg, by boat or through deception), 6 had arrived on short term business visas, 8 were non-citizen residents whose visa had been cancelled under s 501 of the Migration Act, and in 14 cases the identity of the person was unresolved. The countries of origin of the people included the PRC (25), Vietnam (9), Iran (3), Afghanistan (5), United Kingdom (2) and unknown nationality (2). There were (on our assessment) substantial mental health issues in 29 of those cases. Many of the people had made unsuccessful asylum claims in Australia, but not all. In some cases, for example, the person was wanted in another country on criminal charges and was resisting removal to that country. In a few cases the person was prepared to return to another country but difficulties had occurred in arranging travel documents. In some other cases the person had lived in Australia for a substantial period, was eligible for removal pursuant to a visa cancellation decision under s 501, but difficulties in arranging their removal had arisen. In nearly all cases there is a pattern of (usually unsuccessful) tribunal review and litigation at different levels of the court system.
Ø Issue and themes
Each case is treated individually, and the assessment and recommendations are tailored to the particular case. What stands out is the complexity of the cases, and the unique issues that many cases raise. The starting point in all cases is that the decision of Parliament to require a detention review at the two year mark is significant in itself. It is implicit in that requirement that two years is regarded as a lengthy period, that the appropriateness of detention should be reconsidered at the two year mark, and that indefinite detention is undesirable in principle. That said, each case requires individual consideration, and there can be circumstances that make it inappropriate to recommend a person’s release notwithstanding the length of detention. That, at least, is consistent with avowed government policy.
Family and health concerns are another strong theme in the reports. This new function of conducting a two year review was created amidst a debate in the parliamentary and public arena that was specially focussed on humanitarian considerations. The adverse impact that extended detention could have on a person’s physical or mental health was a prominent theme in that debate. The undesirability of children being in detention, or of separating families, was another theme in the debate. Those factors are accordingly given special attention in the reports.
Some of the reports have also addressed problems in the administration of the immigration legislation. There has, for example, been criticism in some cases of a period of inactivity by DIMA in arranging for a person’s removal or ascertaining their identity. If there has been avoidable delay, or a person has been cooperative regarding their removal from Australia, that has been a weighty factor in deciding whether to recommend that the person either be released from detention or be placed in an alternative form of detention. Another aspect of departmental administration taken up critically in some reports concerns s 189 of the Migration Act, which provides that an officer must detain a person if there is a reasonable suspicion that the person is a unlawful non-citizen. Some reports have pointed out that there should be a continual process of review to ascertain whether there are adequate grounds for the continuing detention of a person.
4 Investigation of referred cases
· Description of the function
Following the report by former Australian Federal Police Commissioner, Mick Palmer, into the case of Cornelia Rau, the Australian Government identified other cases which gave rise to a similar question as to whether a person had been wrongly or unlawfully detained. One such case was that of Vivian Alvarez, an Australian citizen who was removed from Australia to the Philippines. Midway through the investigation of that case the Government requested the Ombudsman to take over the finalisation of the case, using the existing team that had been assembled under Neil Comrie, a former Victorian Police Commissioner. Eventually the number of cases that the Government requested the Ombudsman to investigate swelled. As at June 2006 there were 248 cases under investigation. The scope of the function is to undertake an independent assessment of the cases and prepare a report to the Department.
· Profile of cases
The common theme in all cases is that a person had been held for a period in immigration detention, and later released on the basis that they could no longer lawfully be held in detention. The core issue therefore is whether all or any part of the period of detention was wrongful or unlawful. In some cases the issue of concern is that a person may have been wrongfully detained by reason that the person suffered mental health problems, and failed adequately to convey that they were either a citizen or had lawful resident status in Australia (11 cases). In some other cases (45) the issue in contention is whether a person was wrongly detained or kept in detention due to a data problem in DIMA administration (eg, the person’s status as a citizen or resident was not correctly identified). Other possible issues are that there were flaws in the detention process (62 cases), that a child should have been released upon reaching a specified age or for some other reason (7), or the person should have been earlier released following a court decision in another case that had implications for the person’s immigration status (57). A further 65 cases are being investigated as “other issues”. This is a catch-all for those not fitting neatly into the previous categories.
· Progress to date
The office is planning to complete a report on all cases by the end of 2006. Substantial work has already been done on many of the cases. To date only 2 reports have been published – concerning Vivian Alvarez, and Mr T.
· Issues and themes
A common theme in the two cases published to date (Alvarez and Mr T) is that the person detained was an Australian citizen, and that this fact was not identified at the time by DIMA. There were a number of contributing factors – the inability of the person as a consequence of poor mental health to convey their immigration status, defective administrative inquiries and computer searches by DIMA officers, failure to follow up on important information about the person, and failure to use available methods of identification. Recommendations to address those problems were made and accepted by DIMA.
A related issue taken up in the reports is the administration of s 189 of the Migration Act (noted above). The reports questioned both the basis on which the officers formed a reasonable suspicion that a person was an unlawful non-citizen, and the continuing detention of the person without adequate inquiry to gauge whether the reasonable suspicion was still sustained. There has been criticism as well of the standard of care provided to those in immigration detention.
Another particular problem in the Alvarez case was that officers took a narrow view of whether the Privacy Act permitted disclosure of identifying details to other people (in that case, to Ms Alvarez’s former husband). Disclosure of that information may have resulted in earlier resolution of the case.
4 The broader Immigration Ombudsman function
· Monitoring DIMA activities
As part of the broader Immigration Ombudsman function, the office first proposes to implement an inspections/monitoring function on DIMA’s removal operations, starting in about July. At present, we envisage that this will involve examining a selection of removals undertaken in the previous twelve months, to review:
Ø the grounds for removal
Ø the choice of location to which the person(s) is removed
Ø the amount of notice given to the person
Ø any special circumstances surrounding the removal, such as health issues or the involvement of family members, and
Ø consistency of the arrangements with the relevant Departmental policies and procedures.
Second, we will implement an inspections/monitoring function on DIMA’s compliance activities, including its use of search and entry powers. This area is undergoing considerable change at present as a part of the cultural change being implemented in DIMA so we propose to start implementing this function later this year.
· Detention program
There are three main aspects to our enhanced role in relation to detention matters.
First, we are adopting a more systematic and proactive role by establishing an expanded program of regular visits to detention facilities. It is anticipated that general visits to detention centres will be made on at least a monthly to six weekly basis, depending on the number of detainees in the facilities. During these visits we will take complaints, provide information about the Ombudsman to detainees, their representatives and/or family/friends and to staff at the detention facility. We will also use these opportunities to observe the implementation of recent and proposed changes to detention facilities and practices. In addition, we will periodically make unannounced visits to various detention centres.
Second, we are developing an inspection function in relation to detention, both for people held in detention facilities and in community detention. We envisage examining the detention conditions for a sample of detainees. In cases where people are held in detention facilities, we will examine their access to services and to activities to assist in maintaining their well-being; whilst we will focus more broadly on the provision of services for people held in community detention, and any specific conditions attached to their detention. This work will be based largely on file reviews but the detainees will be invited to meet with Ombudsman staff if they wish. I expect that we will start implementing this function later this year.
In addition, we will monitor the timeliness and accuracy of briefs prepared for the Minister when children are held in detention facilities for any length of time.
Third, significant changes are being made to the arrangements for the provision of health care to detainees and the setting of appropriate standards for that care. Our office will commence systematic monitoring of compliance with the new health care arrangements and standards when they are established.
· Own motion investigations
Another important part of the Immigration Ombudsman function is to undertake an expanded program of own motion investigations. We are conscious that the detention and compliance areas of DIMA’s operations are going through a substantial change program. For this reason, we are initially going to pursue own motion investigations outside these areas.
The investigations we will pursue first of all are:
Ø an examination of complaint handling processes of the Migration Agents Registration Authority and
Ø the notification of reasons for decisions and review rights for refused visa applicants.