The Ombudsman has published a damning report on the cancellation of bridging visas on criminal charges. The Ombudsman found that the policy was fundamentally at odds with the presumption of innocence. He also found that the Department was cancelling these visas on minor matters, often resulting in detention for prolonged and unnecessary periods while they were waiting for criminal charges to be heard.
The Department did not routinely review detention when charges were dropped and people were locked in detention unnecessarily. The Ombudsman also evidenced a litany of other failings in the Department’s process in dealing with cancellations, despite not receiving full cooperation from the Department in his investigation.
Bridging visas subclass E (050 or 051) are mainly granted to people waiting for their claim for refugee status to be considered. These visas mean they are released from detention.
On 28 June 2013, an amendment was introduced to the Migration Regulations which created the condition that the holder of a Bridging visa must not engage in criminal conduct. As a result, the Minister for Immigration and Border Protection now has power under the Migration Act to cancel a Bridging E visa where the person holding the visa has been either charged with or convicted of an offence against the law of the Commonwealth, a state or territory or against the law of any other country.
This power of cancellation allows for consideration of the particular circumstances of each case, including the severity of the alleged or actual criminal conduct, and the impact of visa cancellation on other visa holders and family members in Australia.
Under these regulations, 322 Bridging E visas were cancelled between 29 June 2013 and 9 October 2016.
Consequences of visa cancellation
If a person’s bridging visa is cancelled, the person is detained and cannot apply for further visas. He or she can only be released if the Minister personally decides to intervene in their particular case. Otherwise, that person may remain in detention indefinitely.
The Commonwealth Ombudsman’s investigation into visa cancellations
On 16 October 2016, the Ombudsman began an investigation into the Department’s handling of these cancellations. The Ombudsman was particularly concerned with cases where the decision to cancel a visa had been set aside for review, and where the charges which had brought about the cancellation of a person’s visa were dropped or resolved after they had been re-detained.
The presumption of innocence
The Government’s stated view is that these new grounds for visa cancellation should be “applied rigorously, ” and that people should “expect to be denied the privilege of continuing to hold [a] Bridging E visa,” even if they have only been charged.
The Ombudsman noted that this position is potentially at odds with the fundamental principle of the Australian common law that a person must be presumed innocent until they are found guilty.
The Ombudsman expressed concern about the power of the department to cancel a visa as the result of any criminal charge, regardless of the seriousness of the charge. In fact, the Ombudsman found, the Department was inclined to cancel a visa even where the charge was minor.
It was difficult, the Ombudsman observed, to demonstrate how detaining a person charged with a minor traffic or shoplifting offence could be said to preserve the Australian community from an unacceptable risk of harm, which was the stated purpose of the legislation.
Recording cancellation decisions
The investigation revealed varying quality in the recording of decisions to cancel visas. In some cases, officers would list comments made by the person holding the visa without any analysis or noting why there were insufficient reasons to prevent cancellation. The Ombudsman was unable to find proof that the circumstances of each case had been properly assessed, or whether cancellations were reasonable, appropriate or in line with the regulations.
Notice of cancellation and interview process
Where there is a breach of visa conditions relating to criminal conduct, the Department can issue a notice of intention to consider cancelling the visa (NOICC), either in person or by phone. In almost all of the cases examined by the Ombudsman, they were notified on the same day or within a few days of criminal charges being laid.
The department will then conduct an interview, often over the phone and with the assistance of a telephone interpreter. This is the person’s one opportunity to tell the Department how the charges came about and why their visa should not be cancelled.
Departmental procedure stipulates that the visa holder must be given a reasonable period after receiving the notice before they can be interviewed: the period deemed to be reasonable is at least ten minutes, and the department is not obliged to postpone the interview if this is requested by the visa holder. There is therefore very little opportunity for the visa holder to seek legal advice or support before they have to speak to the departmental officer make a decision at the end of the interview as to whether the visa will be cancelled, and the holder placed in detention.
Right to appeal
If a person’s visa is cancelled, they can apply to the Administrative Appeals Tribunal for a review of the decision. The application must be lodged within two working days of the decision if the person is being held in immigration detention, or within seven working days if the person is being held elsewhere (such as in prison).
The Ombudsman expressed concern that visa holders were often unaware that they were able to appeal the cancellation. The notice of cancellation does not include nformation about reviews or the time limit for applying.
This means that many people facing cancellation of a visa do not receive a critical piece of information about their legal rights. This is made worse because they only have 48 hours to act, and have to navigate the process in a different language. Many are likely to come from countries where challenging government decisions is dangerous, and they may not expect that there is a review procedure.
Some people who were aware of their right of review were still unable to make an application. This was because they were being transferred between detention facilities during the appeal period. The remote location of some facilities also limited their ability to contact the Tribunal or find a lawyer.
If the person’s appeal is unsuccessful, there is no opportunity for a further appeal. This is true even if the criminal charges are withdrawn, or the person is found not guilty of the charge which brought about the cancellation of their visa.
If a person’s appeal is successful, but their bridging visa expires in the course of the appeal process, they will remain in detention. The department will not re-grant an expired visa in this case.
The Department can, however, bring the case to the Minister’s attention to exercise personal discretion to grant a new visa. The Ombudsman expressed concern that such matters were not consistently referred to the Minister, nor treated with the required urgency.
The investigation drew attention to one case in which a woman remained in detention for eight months after successfully appealing the cancellation of her bridging visa. She gave birth to an Australian citizen during this period. Her case was not assessed for possible ministerial intervention, despite her representative’s requests.
When criminal charges are resolved after re-detention
The investigation revealed cases where people were detained for prolonged periods after their criminal charges had been resolved. This included cases where the charges against the person were withdrawn and where the person was found not guilty of any criminal offence.
The department’s case management system allows for monthly review of detainees’ circumstances. However, the dropping of criminal charges does not immediately trigger a reassessment of the person’s detention. Nor does it trigger a referral to the Minister for intervention.
As well, the Minister will not consider requests for intervention from people in detention or their representatives. Matters can only be escalated by departmental staff as part of a two-step process.
This process can take many months to complete.
This means that people are likely to remain in detention for longer than is necessary. The Ombudsman regarded this as inconsistent with the Government’s stated aim to use immigration only as a ‘last resort’. The Ombudsman firmly urged that the resolution of criminal charges should bring about an urgent review of a detained person’s case.
Delays where charges are not yet resolved
The investigation found that cases were not progressed for ministerial attention where a person’s criminal proceedings were still in progress. As there are often long delays to cases heard in local courts, many people who had been granted bail (and therefore considered by the court as a low risk to the community) remained in detention for months before their trial.
As a result, some people spent more than two years in detention without any idea when it might end. The Ombudsman found that the Department was not making a full assessment of whether continued detention was warranted, and warned about the detrimental effect of indefinite detention on a person’s mental health.
The Ombudsman also found that the Department and the Minister seemed overwhelmed by extra work created because of the ‘legacy caseload’. This group of around 30,000 people are banned from applying for a visa unless the Minister personally exempts them.
Obstacles to the Ombudsman’s investigation
The investigation reported that the Department did not provide information promptly, and their records were often poor. The Department did not provide all the information that had been required by the investigation, and their data could not be easily extracted or analysed.
The Ombudsman made the following recommendations:
- A person who faces cancellation should be given enough time and resources to seek advice and present their reasons why the visa should not be cancelled.
- The Department should provide a person with a written notice of decision. This should include their review rights translated into their own language. The notice should include information regarding: the reasons for the decision to cancel their visa, their right to have the cancellation decision reviewed by the Administrative Appeals Tribunal, the time limit for lodging an appeal with the Tribunal, how to contact the tribunal, as well as how the Department can facilitate contact with the tribunal and a legal representative.
- The Department should 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’s visa has expired.
- The Department should identify all people in detention whose cancellation decision was set aside by the Administrative Appeals Tribunal. If this had not already been done, the case should be presented to the Minister to intervene.
- The Department should ensure its case management and escalation framework is able to identify and refer cases quickly and efficiently for Ministerial intervention.