An investigation can be carried out on the basis of a complaint or on the initiative (or ex officio) of the ombudsman. Copies or summaries of reports are usually available on the Ombudsman's website
Based on the results of this study, the following recommendations are made to improve the administration of certain aspects of Section 501 of the Migration Act, particularly in relation to long-term permanent residents. This includes all material relating to the children's welfare and the consequences of cancellation for any health problems and necessary medical treatment. This could include providing a copy of the standard questionnaire in Appendix 12 to the MSI with each notification.
In my view, a review of the application of s 501 to long-term residents is urgently needed. If the results of this investigation are indicative of the standards generally applicable to the operation of s 501, DIMA must review both the content and application of all relevant policies and procedures. I would like to discuss broad improvements already underway before addressing your recommendations as they relate to the application of the character provisions.
Your report contains a number of recommendations regarding the administration of character competencies by this department.
Background to the Investigation
Decisions taken personally by ministers do not fall under the jurisdiction of my office to investigate (Ombudsman Act s 5(2)(a)). In this regard, it is significant that many of the cases considered in the preparation of this report involve people who have been the subject of a ministerial decision and who have remained in immigration detention for a long period of time. On this basis, as explained below, the methodology for this report included a review of the Ministerial Guidance and the Migration Series Guidance implementing s 501.
A sample of 35 cases where a long-term resident's visa was canceled under S 501 was then examined in detail to determine how well the policies and procedures were being implemented. DIMA also provided research examples of cases where it was decided not to cancel the visa under Article 501.
Legal and Policy Framework
The reasons for failure include a substantial criminal record, affiliation with an individual, group or organization involved in criminal activity, or the past and present criminal or general conduct of the visa holder. It may also be appropriate to cancel the visa simply because the nature of the character or offenses are such that the community would expect the person to be removed from Australia. The exception is when there is evidence that the visa holder has abused or neglected the child, or the child has suffered physical or emotional trauma from the visa holder's behavior.
This includes whether immediate family members can travel abroad to visit the visa holder; the nature of the relationship between the visa holder and immediate family members; and whether immediate family members are in some way dependent on the visa holder for support that cannot be provided elsewhere. Difficulties likely to be faced by the visa holder and the visa holder's family are treated as secondary. For example, in what circumstances can the "other reasons" faced by the visa holder and their family override the "primary" expectation of the Australian community that permanent residents abide by Australian laws.
It explains how to prepare an advice for the decision maker, what to do when the decision to cancel the visa is made and under what circumstances the discretion not to cancel the visa should be exercised. The MSI seems to suggest that the minister is likely to consider a proposed cancellation only if the visa holder is controversial, notorious, highly notorious, or has committed major crimes. Once an individual is identified, all departmental records (such as the Movement Alert List, Registry, Movements, Citizenship and Visa Cancellation systems and the visa holder's personal DIMA file, if any) must be checked to confirm the visa class held by the visa holder.
All pertinent information should be considered, including the visa holder's criminal record, comments on the conviction, and any parole reports. A reasonable period of time must be provided for responding to the notification and preparing the response. The visa holder and his or her family may be interviewed by DIMA to get a better understanding of his or her circumstances.
The visa holder should be advised if the Minister is expected to make the decision on cancellation in person and the consequences thereof. Of particular importance to long-term residents is whether the visa holder is owed protection under international obligations, such as non-refoulement and the ICCPR. Copies of the relevant sections of the Act must be attached to the cancellation notice.
Areas of Concern
In many of the Issues Papers discussed, little effort seems to have been made to ensure that up-to-date information about the visa holder is used. In some cases, the reason given was that material relating to the visa holder's criminal record was classified as 'protected', in accordance with Section 503(A) of the Act. The researcher compared the quality of the considerations made with the primary considerations in the cases.
Several of the cases reviewed suggested that more balance is needed in the assessment of these cases in the Issues Papers. Several of the cases examined referred to the fact that the Australian community may feel some compassion for the visa holder. In none of the cases examined did the expectation of compassion in the Australian community for the visa holder's plight outweigh the expectation that the visa holder would be removed.
There appears to have been no assessment of what might be the greatest benefit to the children. The limited consideration of children was also evident in the Department's actions when Ms. NJ was taken to immigration detention. In many of the cases reviewed, there is limited reference to hardship faced by the visa holder's immediate family, excluding children under 18 years of age.
It is essential to the integrity of the process that there are balanced details of the circumstances of the offenses and the visa holder. It was written in the question paper that Mr. Only copy of correctional service report sent to GC. In these circumstances, it would make sense for the Ministry to assist the visa holder by indicating the issues that need to be addressed.
However, interviews seem to be conducted infrequently and, again, entirely at the discretion of the case officer. There seems to be no connection between conducting an interview and the complexity of the case or the difficulties the visa holder may face in preparing a response to the ministry. It appears to be standard practice to provide visa holders with copies of the direction and text of S 501.
The reasons appear to have been given in response to Mr. DD's initiating judicial review of the decision in the Federal Court. It is timely that the minister assesses the correct approach to such matters.
Conclusions and Recommendations
This review will now build on the comprehensive review of the operation of section 501 which the Minister launched in November 2005. Find out whether Ministerial Guidance 21 and the Migration Guidance Series 254 provide clear guidance to decision-makers on the circumstances in which a visa should be granted . rejected on the grounds that the applicant fails the character test. Determine whether the Ministerial Direction and the MSI should be revised to reflect the Government's expectations of the circumstances in which a person's visa should be canceled under subsection 501(2).'
However, it must be recognized that neither Direction 21 nor MSI 254 can prescribe the weight that decision makers must give to particular considerations in deciding whether to refuse to issue or cancel a visa under section 501 of the Act. These new training programs will illustrate, how a decision maker can balance the competing considerations of Direction 21 in the decision to refuse to issue and cancel visas under section 501 of the Act. That is a matter for the decision maker and will depend on the circumstances of the particular case.
That DIMA consider negotiating with state and territory police and correctional services a standard procedure for identifying convicted persons liable for cancellation of their visas under section 501 of the Migration Act. The procedures should be agreed in writing and should include mechanisms to accurately and consistently confirm the visa status of convicts throughout Australia. This is important to ensure that the visa holder is fully informed of the evidence on which the cancellation proposal is based.
It will be important to ensure that the practices outlined in our guidance will significantly improve the administration of character powers under the Migration Act. This framework will need to evolve depending on the requirements of any new policy directions and procedures that may result from current revisions of the MSI and related Guidance. This will eventually form part of the curriculum of the new College of Immigration, Border Security and Compliance being created in response to the Palmer report.
Previously, a formal record of the reasons for a decision was not always provided at the same time as notification of a decision. It is considered that the reasons for the decision can easily be derived from the record of the decision, which describes all the factors that were taken into account in reaching a decision and given to the annulment in each case. They are also preparing to start the second phase of the review that you recommended (that of cases where a long-term resident's visa has been cancelled.
