Since December 2014 when the law changed, many more people have been detained because their visas have been automatically cancelled. This change in the law also affects people who have found or are seeking protection, who cannot go home. The Commonwealth Ombudsman has recently published an important report into the administration of this new law and visa cancellations, finding that:
- there has been a huge increase in the number of people being detained, with over 900 people being detained in 2015-2016
- that people spent on average over 150 days, and for some people years, for the Minister to make a decision
- the Minister personally makes all the decisions and most of the cancellation decisions, and
- people are being separated from their families for a long time, and the Department does not consider their families or their caring responsibilities when deciding to transfer them interstate or prioritising their cases.
Visa cancellations: the issue
For many years, the Migration Act has included powers to cancel the visa of a person who is not a citizen of Australia because they have committed serious crimes. In 1998, the law was changed to extend these powers by introducing section 501 of the Migration Act. This allows the Minister to cancel a person’s visa if the Minister was satisfied they did not pass the ‘character test’. A person could fail the ‘character test’ if: the person had a substantial criminal record; associated with a person, group or organisation involved in criminal activity; or because of the person’s past and present criminal or general conduct. A ‘substantial criminal record’ included where a person had been sentenced for a crime for a year or more, or where a person had been sentenced for two or more crimes for two years or more.
Section 501 applied even if a person had been living in Australia for most of their life. Importantly, if the Minister of Immigration personally cancelled the visa, that decision could not be reviewed by a tribunal, and could only be reviewed by a court in very limited circumstances.
In December 2014, a new law (the Migration Amendment (Character and General Visa Cancellation) Act) extended these powers again. Importantly, this new law meant that the Minister was now required to cancel the visa of a personserving jail time if the person failed the ‘character test’ because the person had a ‘substantial criminal record’. This change meant that the person would be detained automatically under the Migration Act. It also means that, where the Minister makes a decision personally, a person has almost no way to challenge the decision before a tribunal or a court.
What has happened to people who have had their visas cancelled
The Ombudsman’s report provides a detailed picture of information about what has happened since the law was changed.
How many people are affected, and who are they?
Between 1 January 2014 and 1 March 2016:
- 1,219 people had their visas cancelled, with 983 people having their visas cancelled in 2015-2016, a huge increase from the year before, when 76 people were detained (see Table 1 on the left)
- Most of these people (see Table 2 on the right) were from New Zealand (697) or the United Kingdom (124), 253 of them were from ‘other’ countries, with smaller numbers for people from Sudan (30), Vietnam (27), Iraq (13), Lebanon (11), Afghanistan (11), and South Africa (10)
- They had committed a wide variety of offences, including assault (210) and drug offences (148)
- Most of them were living in NSW (32%) or Queensland (30%) at the time their visas were cancelled
The report also provided statistics about the process of asking for the cancellation to be revoked:
- 805 people (66%) have asked for the decision to be revoked, and 104 people had cases before the courts
- Only 178 decisions on requests to revoke a cancellation had been made, and of those only 73 people had their cancellations revoked, 69 had their cancellations confirmed, 21 were withdrawn, and 15 ran out of time to ask.
- 627 people (78%) were still waiting for a decision, and
- at 31 March 2016, 131 people were waiting for the Minister’s decision overseas, 174 people were in prison and 362 were in detention.
How long have people been waiting in detention?
For those people who have asked for the decision to be revoked, the average time they have been waiting in detention was 150 days between 1 January 2014 and 31 December 2015, increasing to 153 days by 29 February 2016. By 1 March 2015, there were:
- 158 people who had been in detention waiting for six months or more, and
- 21 people had been in detention for a year or more.
Between 1 January 2014 and 31 December 2015, 380 people in this situation were returned to their home country. Before they returned, they waited in detention for an average of 94 days. By 29 February 2016, this had been reduced to 36 days.
The Ombudsman’s investigation
Since the change in the law, the Ombudsman had received at least 94 complaints about the administration of the new law, including about the:
- Time spent in immigration detention while waiting for a decision by the Department or Minister
- Significant increase in visa cancellations
- Impact of people having their visas cancelled just before they were released from prison
- Impact on the individual in detention and their family, and
- Impact on the entire detention network and immigration compliance operations.
The Department asked for statistics and documentation, met with Departmental officers and interviewed 31 people in immigration detention.
What did the Ombudsman find?
Identifying people for referral
The National Compliance and Character Centre manages the process of visa cancellations. The Centre identifies most of the people for visa cancellations through lists of people on prison provided by state and territory corrections services. It also uses other methods, including ‘dob ins’ from the community, media and Internet monitoring, and enquiries or referrals by law enforcement. The Ombudsman noted that, while the Department did not exercise any discretion in applying the legislation, its work was focused on prisons and people with serious criminal convictions.
The Ombudsman found one reason for the delay in detention was the time taken to identify non-citizens in prison. This meant that people were often told just before they were released. The procedures for providing information by state and territory citizens were informal.
Telling a person about the visa cancellation
The Ombudsman noted that some prisoners said they were not told formally about their visa cancellation, or that the Department had not received their request for revocation . There were also problems because of delays in getting the remarks made by judges when sentencing people, which needed to be included in the notice. Another cause of delay was getting police records with formal criminal histories.
Waiting for the Minister
Decisions to revoke the cancellation can be made by the Minister for Immigration personally, the Assistant Minister, or a senior officer of the Department. However, the law gives some powers to cancel visas only to the Minister, including powers to cancel a visa without natural justice and to substitute the Minister’s personal decision for another decision. If the Minister uses these powers, the decision cannot be reviewed by a tribunal.
The Ombudsman found that the Minister personally makes all decisions to revoke cancellations, as well as most cancellations. At 27 April 2016, the Minister had 492 requests for revocation before him, which was 75% of the total. The Assistant Minister had 12% of the cases and the Department only 13%. The Ombudsman considered that at least some of the cases could be delegated to reduce delays.
How cases are prioritised
Cases are prioritised by looking at factors including:
- the seriousness of cases
- reputational risk
- the impact on the good order of immigration detention centres
- ease of removal of the detainee from Australia, and
- the health of the detainee.
The priorities are not affected by family circumstances or carer responsibilities, although this information is included when considering whether to revoke a cancellation. However, children and families are also affected when a person is detained for a long time or is transferred interstate where their family cannot visit them.
Asking for a cancellation to be revoked
The Minister is required by law to give a person written notice of the decision to cancel a visa. The person has 28 days from the time they are considered to have been notified, and this time cannot be extended. This information and evidence are prepared for the decision-maker. A direction by the Minister requires a decision-maker to consider:
- protection of the Australian community from criminal or other serious conduct
- the best interests of minor children in Australia
- expectations of the Australian community.
Other things a decision-maker must consider include:
- international obligations not to refoule a person (return them to persecution or other serious danger)
- strength, nature and duration of ties to Australia
- impact on Australian business interests
- impact on victims
- extent of impediments if removed.
There is no departmental standard for the time to process the request. The requests are prioritised by the date a person enters detention.
The Department did not appear to have implemented all of the Ombudsman’s previous recommendations about the processing of requests. For example, it was not clear that the Department was giving the person affected or their family a chance to provide oral submissions. The Department also appeared to have cancelled the wrong visa several times. In one court case, it was also found that the Department had not considered properly its international obligations to a former refugee, although the decision was overturned on appeal.
Waiting for the decision overseas
A person can choose to wait for their decision after returning to their country of nationality. (This obviously is not an option for people who came as, or have been found to be, refugees, or are seeking protection.) If the Department revokes the cancellation, they can return to Australia. However, they must declare all their criminal convictions and, if their visa has expired, they must meet all the criteria for a new visa. They will also have to repay the costs of returning them to their countries of nationality, although this is not being enforced for New Zealand citizens. New Zealand citizens can also get another Special Category Visa (which allows them to live and work without a time limit in Australia) if they meet health and character requirements.
Effect on detention and compliance
The Ombudsman noted that the increase in people in detention seemed to have led to fewer people overstaying their visas being detained. The main impact, however, was that the number of people who had been convicted of crimes rose from 15% of those in detention to 30%. More people were being detained and this was also leading to more people being transferred interstate because of the lack of high-risk facilities. On 27 September 2016, 84% of those on Christmas Island were people who had their visas cancelled. The effect was hardest on people from Queensland because the lack of detention space meant that almost all of them had to be transferred interstate.
This has meant that people are being separated from their families for long periods. For example, one person had a wife, four children and a grandchild in Queensland. He had been transferred to Yongah Hill in Western Australia and had not seen his family for 14 months, even though his wife had mental health issues and had difficulty looking after their children.
What did those affected say?
Their separation from their family was one of the most important concerns of those in detention, and the main reason people did not want to wait for their decision overseas. They also raised concerns about the time taken for a decision to be made, inconsistency in decision-making, being told they would be detained shortly before being released from prison, uncertainty over the effect of waiting for a decision overseas, and the money they would owe the Department if they were taken overseas.
The most important concern, however, was the double punishment of being detained after they had already served their sentence. Some also spoke of the effect of finding out, after having planned for their release from prison, that they would still be in detention. Others told the Ombudsman they did not understand the process because of literacy problems.
The Ombudsman’s recommendations
The Ombudsman recommended that the Department should:
- Establish a formal agreement with all state and territory correction services for providing information
- Look at ways to improve access to sentencing remarks and police records
- Review how they prioritise cases with a greater emphasis on those who are carers and long-term residents
- Introduce a timeframe for processing requests for revoking cancellations
- Increase awareness among staff regarding potential literacy issues with prisoners and review how information is given about the process to people in detention
- Help people get better information on waiting for decisions overseas.
The Department’s response
The Department agreed to only one of these recommendations, the recommendation about improving access to sentencing remarks and criminal records.
The Department noted the other recommendations, saying:
- the Australian Border Force was leading negotiations for formal agreements on information sharing, which would include prisoner lists
- it would review and update the matrix to include compassionate factors including care-giving
- the time taken to process decisions was getting shorter, with 282 cases still waiting for a decision by 31 October 2016, and 336 revocation decisions being made in 2015-2016
- it will review the forms given to people about the process of cancellation, and
- it provides short-term assistance for people returning home, although the country of nationality is expected to provide support for those returning.