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Reports by the Ombudsman

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The department's data about this group do not seem to allow for easy extraction and statistical analysis which may explain its inability to provide some of the information required. That the department give a person written notice of the decision, including their appeal rights translated into their language, when their Bridging Visa is cancelled. It has issued various ministerial instructions to the department regarding the use of its public interest powers.

The department plays a key role both in identifying cases to bring to the attention of the Minister and in providing appropriate and relevant information to enable the Minister to make an informed decision. Of those, the department reported 30 people to immigration detention on December 22, 2015.

Notice of intention to consider cancelling a visa

If the person holds a bridging visa and charges are incurred, this information will be passed on to the compliance department. The police will provide the department with a copy of the charge sheet which serves as formal confirmation that charges have been filed against a holder of a bridging visa, enlivening the grounds for cancellation under r 2.43(1)(p)(ii). Many of the NOICCs we examined showed that the department presented itself at the police station where the holder of the bridging visa was being held and personally presented the holder of the bridging visa with the NOICC.

Proportionality

Once the person has received the notice, they must be given a reasonable period of time before the department begins the interview. We noted that a common theme in the NOICCs examined was the visa holder's sense of injustice that the department could cancel a visa based on the filing of charges where the person denies committing any crime and where the charges have not been proven. As such, there is little time for the visa holder to seek legal advice or support before having to speak to the departmental officer, who must make a decision at the end of the interview that will determine whether the visa holder is debarred. or not. .

The department advised that although such cases were common, compiling the information was too resource intensive. We then requested that the department ask its decision makers if they could recall any single example for our review. As such, we were unable to evaluate the manner in which the department weighs the factors for and against this type of cancellation and the circumstances under which it would decide not to cancel a visa.

Some officers noted the weight they placed on certain factors, while others listed the reasons offered by the Bridging visa holder, but did not document their analysis of why these were insufficient to support not revoking the visa. The department has acknowledged that it needs better officer training in this regard and has acknowledged that there are some skills gaps. Thus, despite finding many mitigating factors in favor of the petitioner, she overruled him.

That misunderstanding on the part of the Tribunal prevented it from properly reviewing the Delegate's decision and thus constructively failing to exercise its jurisdiction.

Merits review

That the department

Prioritisation of appeals from people in immigration detention

The submission to the Minister notes that X's BVE was reinstated but the department's systems could not be updated and he was not released from detention. The Department brought the matter to the Minister's attention on 23 July 2015, noting that he was a final determination IMA moving towards removal. Of these, three people were still in immigration detention because their bridging visas had expired before the court's decision.

We have requested specific details of these cases from the department on several occasions, but they have not been provided. Her bridging visa was canceled on 3 July 2015 and she was returned to immigration detention. However, her bridging visa expired six days earlier so the department could not release her from immigration detention.

The department replied to our office that her case was assessed as complying with the guidelines for a referral to the minister and that it would soon be reviewed by the. Department records indicate that while in custody, she twice threatened to harm herself and on one occasion self-harmed. We are particularly concerned that before this office raised our concerns about this matter with the department in December 2015, there was no evidence that her case had even been assessed for possible ministerial intervention, despite her representative's request in October 2015.

The Ombudsman believes that the department should have done this when it was informed of the court's decision and it became apparent that they could not release her from . detention of immigrants because they no longer had a valid bridging visa.. a) immediately request the intervention of the Minister for visa approval for all cases where the administrative appeals court overturns the decision to cancel, but the person cannot be released due to the natural expiration of their visa.

IMMIGRATION DETENTION

Case management framework

Minister’s detention intervention power

The guidance details the types of cases it wants to be aware of, the cases it should not deal with and the information the department must include in the submission the department makes to the Minister. We understand that case managers refer these cases to the CCRS who are tasked with preparing the submission. It is in the public interest to ensure that no person is detained in immigration detention for longer than necessary.

My power to intervene in detention is intended to be used where it is not in the public interest to detain a person. They also provide that the department can only make requests to use this power when it considers the case to be a guideline meeting for referral to the Minister. The Ombudsman recommends that the Department ensure that its case management and escalation framework adequately supports the timely and effective identification and referral of cases that meet the Minister's guidelines for consideration under 195A.

P ART 5—P ROLONGED IMMIGRATION DETENTION

Resolution of charges

Charges dropped

Case study three – the delay in the Minister's referral after the charges were dismissed resulting in over a year in detention. Over a year later, on 21 October 2015, the department included him in a major submission to the Minister for him to consider using his powers under s 195A to grant Humanitarian Status. The minister intervened in the case of Mr. X removing the obstacle to allow him to apply for a temporary visa.

The Department advised in its latest 486N report that it had reassessed Mr. X as fulfilling the instructions for a referral to the Minister. The department requested information from the South Australian Police (SAPOL) on 26 October 2016 as to why the case was not being continued to assist. Since a white paper was issued, rather than a complete withdrawal of the case, surely that means the alleged victim still wants to press charges and there is no DNA evidence to suggest he is definitely not guilty? '.

But is it of concern that the filing with the Minister on January 4, 2016 requesting ministerial intervention under Article 195A included; "The matter may go to court in the future if more evidence is presented." No information has been provided to the Ombudsman's office to indicate that DPP or SAPOL have stated that their. The overall process of getting the minister to exercise his detention intervention powers was lengthy and added to the time a person would spend in immigration detention awaiting a decision. It wasn't until December 2015, when our agency wrote to the department about Ms X's case, that it made an assessment and found that her circumstances met guidelines for a referral to the Secretary of State.

There were further delays while the Department prepared the submission and waited for it to be considered by the Minister before Ms X could be released on 30 March 2016 some five months after her.

Charges finalised

Submissions to the minister

Delays in charges being heard

P ART 6—C ONCLUSION

A TTACHMENT A

A TTACHMENT B

DIRECTION NO. 63 - Bridging E visas

Preliminary

Name of Direction

Commencement

Contents

4 Part one

Objectives

General Guidance

The relevant factors to be considered in making such decisions are identified in Part Two of this guidance.

Principles

Part two - Section 116(1)(g) and regulation 2.43(1)(p)

Prescribed grounds under regulation 2.43(1)(p)

  • How to exercise the discretion

Primary considerations

  • The Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously
  • The best interests of any children under the age of 18 in Australia who would be affected by the cancellation

In considering the Government's view that the prescribed grounds for cancellation in regulation 2.43(1)(p) and (q) should be strictly applied, decision-makers should take into account the principle that the Australian Government has a low tolerance for criminal behaviour, of any kind, by non-citizens temporarily residing in the Australian community who do not hold a substantial visa. This is particularly the case for non-citizens who, if the minister did not grant them a visa in the public interest, would be subject to mandatory detention while their immigration status is resolved.

Secondary considerations

A TTACHMENT C

  • 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
  • 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
  • That the Department
  • That the department
  • 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

The Department deems current legislation and procedural guidance regarding the time for visa holders to respond to Notices of Intent to Consider Cancellation (NOICC) appropriate. However, the Department must ensure that decisions regarding an individual's immigration status are made as efficiently and effectively as possible, particularly during field activities, while taking into account the individual's natural justice and circumstances. The department provides written advice to non-citizens on the reasons why a bridging visa has been canceled.

When an individual does not understand English or when the non-citizen requests interpretation assistance, an interpreter is provided through the department's translation and interpretation service. The Department recognizes that it would be beneficial to have standard Administrative Appeals Tribunal (AAT) documentation related to assessment rights translated into several major languages ​​and will consider the feasibility of doing so. statutory appeal period has expired (two days). The Department recognizes that when making placement decisions it must be alert to whether the detainee is within the statutory application/appeal period.

The Department regularly undertakes detainee transfers within the network to ensure that individuals are accommodated in a facility best able to meet their health and safety requirements. The Department has a duty of care to ensure the safety of both the detainee and others, and also the good order and security of the facility. Each immigration detention facility has a range of computers available for access at most times as determined by the Department in conjunction with the facility service provider.

Factors that will be considered in relation to whether an individual can be granted an E bridging visa during status resolution will include risk of harm to the community, removability and likelihood of cooperation with the Department.

References

Related documents

7.4 Applications for filling of land shall be referred to adjoining landowners for comment where: a the proposed finished level is more than 300mm above the existing ground level and: