10 January 2017

Visa Cancellation and DIBP Accountability

The Commonwealth Ombudsman has released two own motion reports into the Department of Immigration and Border Protection (DIBP).

The first relates to the administration of Migration Act 1958 (Cth) s 501; the second outlines an investigation into Bridging E visas being cancelled following criminal charges. Both raise questions about disregard of human rights and the commitment of DIBP to the 'Open Government' philosophy noted here.
First report: section 501 of the Migration Act 1958 
Section 501 of the Migration Act allows, or in some cases requires, the cancellation of visas of people who have been convicted of certain offences or those sentenced to more than 12 months imprisonment. A person who has had their visa cancelled may then apply to have the cancellation of their visa revoked so they may remain in Australia.
Following amendments made to s 501 in 2014, the number of visas cancelled under s 501 increased from 76 in 2013–14 to 983 in 2015–16.
While the department aims to cancel visas well before someone’s estimated date of release from prison, so that any revocation process can be finalised while in prison, to date this has rarely occurred.
"The delays in deciding revocation requests undermines the department’s policy of giving primary consideration to the best interests of those who have young children and/or experience prolonged family separation," ... 
The report notes that the largest group affected by s 501 are New Zealand citizens followed by United Kingdom nationals, many of whom have been in Australia since childhood.
One recent cancellation is noted here.
Second report: investigating Bridging E visa cancellations on the basis of a criminal charge 
Ombudsman Colin Neave has also released an own motion report in response to complaints received by his office, as well as community concerns about people who have their Bridging visa (E) cancelled on the basis of a criminal charge, conviction or the possibility of a threat to the Australian community.
The report considered a Direction (Direction 63) issued by the Minister for Immigration and Border Protection relating to Bridging E visas.
The Direction states that Bridging E visa holder[s] who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigrant status.
The Ombudsman’s report investigated examples of people who were not prioritised for release from detention after the criminal charges were withdrawn or otherwise resolved.
"The ongoing detention of many individuals in this cohort is inappropriate and has negatively impacted upon their mental health," Mr Neave said. 
"To deny a person the liberty to live freely in the community based on nothing more than an allegation that leads to a charge that is subsequently withdrawn, raises the question of whether the department has acted prematurely by cancelling a visa."
The first report states
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 and Multicultural Affairs (DIMA) 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 legislation complaints to our office and observations from our compliance monitoring of immigrations use of intrusive powers and the inspection of immigration detention facilities raised concerns about the following aspects of the administration of s 501:
  •  the length of time a person spends in immigration detention while awaiting a revocation request outcome 
  •  notification of a visa cancellation shortly before release from prison 
  •  the impact of prolonged and interstate detention on detainees and their families  
  • the impact on immigration compliance operations and the detention network.
These concerns led to the decision by the Ombudsman’s office to undertake this investigation.
The department 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.
To date the department has failed to achieve this. Through prolonging family separation this 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.
This investigation concluded the efficient administration of s 501 suffers from:
  •  a backlog in identifying persons subject to having their visas cancelled under s 501 which reduces the scope to conclude the cancellation/revocation process prior to the end of a prisoner’s custodial sentence 
  •  a delay in deciding the outcome of revocation requests. 
This leads to former prisoners spending prolonged periods in immigration detention. 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 informal links between the National Charter and Cancellation Centre (NCCC) and state and territory prison services 
  •  slow response time from courts and police for records and transcripts 
  •  the large number of cases decided personally by the minister 
  •  limited scope to include family circumstance when prioritising case 
  • s  complex record keeping and reliance on paper files for older cases
This investigation included interviewing some of the people detained as a result of having their visa cancelled under s 501. Their key concerns were:
  •  the impact on their families if they are removed from Australia 
  •  the length of time taken for a revocation request outcome 
  •  what appeared to be inconsistent or quick revocation decisions for persons that did not appear to have exceptional circumstances 
  •  being informed of their visa cancellation shortly before their release from prison  
  • uncertainty about what assistance would be provided if they awaited the outcome of their revocation decision overseas 
  •  the debt incurred to the Commonwealth from being escorted overseas.
This report endorses the department’s aim of informing persons subject to visa cancellation under s 501 of their visa cancellation well before the end of their custodial sentence with the outcome of a revocation request determined before a prisoner’s likely parole date. This 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 Ombudsman makes the following recommendations
Recommendation 1 The department 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. 
Recommendation 2 The department examine options for improving the processes for obtaining criminal history and sentencing remarks. 
Recommendation 3 The department:  review the prioritisation of cases with an aim to placing greater emphasis on those with carer responsibilities towards children and long term residents  introduce a departmental standard for the timeframe to process cancellations and revocation requests. 
Recommendation 4 The department 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. Recommendation 5 The department better facilitate access to information on post departure support available for prisoners and their families.
The second report states
We commenced this investigation in response to complaints received by this office and stakeholder concerns raised with us about the cohort of people who have had their Bridging visas cancelled on the basis of a criminal charge, conviction, or the possibility that the person poses a threat to the Australian community. In particular, we are concerned about the people within that group who are detained based on allegations that lead to criminal charges and also those who are not released once the criminal charges against them have been resolved. 
A person must be detained in immigration detention if their visa is cancelled. If they are considered to be an Irregular Maritime Arrival (IMA), the law prohibits them from lodging any further visa application without the personal intervention of the minister. Intervention by the minister is facilitated by departmental identification of cases that fit the guidelines for referral to the minister. 
This investigation identified a case management system that is struggling to adequately manage the volume of people in immigration detention. This, coupled with the mandatory requirement for ministerial intervention in many cases before any progress toward status resolution can be made, means people are remaining in detention longer than is desirable. 
This investigation sites examples of people who were not prioritised for release from detention after their criminal charges were resolved. This left many subject to unnecessarily prolonged and potentially indefinite periods of immigration detention. 
This report also highlights issues associated with the quality of the department’s record keeping. The department wasn’t able to provide all the information to this office, lawfully requested under the Ombudsman Act 1976, within the prescribed time period and, in some cases, not at all. The department has acknowledged and apologised for this failing. The department’s data around this cohort appears not to allow for easy extraction and statistical analysis which can explain its inability to provide some of the information requested. The department failed to provide other relevant materials such as submissions, training packages and case specific information, despite repeated requests.
The Ombudsman makes the following recommendations
Recommendation 1 That the person who is the subject of a Notice of Intent to Consider Cancellation of a visa under s 116 is given adequate time and resources to seek advice and present their reasons against the cancellation. 
Recommendation 2 That the department provide a person with a written notice of decision, including their review rights translated into their own language, when their Bridging visa is cancelled. The notice should include information regarding: a) the reasons for the decision to cancel their Bridging visa b) their right to have the cancellation decision reviewed by the Administrative Appeals Tribunal c) the applicable timeframe for lodging an appeal with the tribunal d) details of how to contact the tribunal e) details of how the department can facilitate contact with the tribunal and a legal representative. 
Recommendation 3 That the department: a) not transfer a person between detention facilities until the statutory time to lodge an appeal has expired (two days), and b) ensure that all possible steps, in particular providing access to the internet, are taken to ensure that a person can request a review of the decision to cancel their visa within the statutory time frame. 
Recommendation 4 That the department: a) promptly seek the minister’s intervention to grant a visa for all cases where the cancellation decision is set aside by the Administrative Appeals Tribunal but the person cannot be released due to the natural expiration of their visa. b) identify all people in immigration detention whose cancellation decision was set aside by the Administrative Appeals Tribunal and, if not already done, brief the minister about the circumstances of their case seeking the minister’s intervention to grant a new visa. 
Recommendation 5 That the department ensures its case management and escalation framework adequately supports the timely and efficient identification and referral of cases that meet the minister’s guidelines for consideration under s 195A.