Aust.: Report into Immigration’s visa cancellation

Commonwealth Ombudsman releases report into Immigration’s visa cancellation powers

A report by Commonwealth and Immigration Ombudsman, Prof. John McMillan, released today highlights deficiencies in the Department of Immigration’s administration of visa cancellation powers under s 501 of the Migration Act 1958 as it applies to long-term residents of Australia.

The Ombudsman initiated the investigation in May 2005 after receiving several serious complaints from long-term Australian permanent residents who had their visas cancelled and were in immigration detention pending their removal from Australia.

Under s 501 of the Act a non-citizen with a criminal record can be removed from Australia if they do not satisfy the Immigration Minister or the Department that they are of good character.

Prof. McMillan said: ‘A decision to remove a person who has grown up in Australia and has established family and social networks in this country can have a profound and enduring consequence both on them and their family and friends. My investigation aimed to determine whether visa cancellation decisions of this kind are being made to the highest standard of procedural and substantive fairness. The investigation did not question the underlying policy of protecting the Australian community from non-citizens who have committed serious crimes, and are likely to reoffend.’

‘Our investigation found that many of the people affected by removal decisions came to

Australia as babies or children and had spent their formative years and all their adult years in Australia,’ Prof. McMillan said. ‘They have well-established family and community ties here, and some have children themselves. They have served, or are serving, the correctional sentence imposed after conviction for their criminal activities.’

The Ombudsman concluded that the majority of cases he examined had at least one, and often several, significant omissions or inaccuracies in the information provided by the Department to the Minister or other decision maker. The standard of procedural fairness provided to those liable for visa cancellation was inconsistent and often fell below that which might be expected given the gravity of the decisions.

Nine recommendations are made in the report, with Prof. McMillan concluding that ‘the investigation has highlighted many deficiencies in the content and application of policies and procedures for cancellation of long-term permanent residents’ visas under s 501 of the Migration Act’.

‘The outcomes for affected long-term permanent residents can, in many instances, be characterised as unfair and unreasonable.’

Secretary of the Department of Immigration and Multicultural Affairs (DIMA), Andrew

Metcalfe, has advised the Ombudsman that the Department supports, in whole or in principle, all but one of the recommendations made in the report. DIMA has already begun to implement some of the Ombudsman’s recommendations.

The recommendation not accepted by DIMA relates to the use of s 501 to remove people from Australia who DIMA would not have otherwise been able to deport under other sections of the Migration Act because they had resided in Australia for over ten years before committing the offence. The government will determine whether it wishes to undertake a full review of this issue, given its broad policy implications.

The Ombudsman acknowledged DIMA’s positive and constructive approach to the investigation and report. DIMA is currently reviewing its administration of the s 501 powers and will consider the Ombudsman’s recommendations in the review.

Prof. McMillan has asked DIMA to provide him with an update on the progress of its implementation of his recommendations.

The report is available at http://www.ombudsman.gov.au/.

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