Aust.: Report into Immigration s visa cancellation

12 February 2006

Commonwealth Ombudsman releases report into Immigration svisa cancellation powers

A report by Commonwealth andImmigration Ombudsman, Prof. John McMillan, released todayhighlights deficiencies in the Department of Immigration sadministration of visa cancellation powers under s 501 ofthe Migration Act 1958 as it applies to long-term residentsof Australia.

The Ombudsman initiated the investigationin May 2005 after receiving several serious complaints fromlong-term Australian permanent residents who had their visascancelled and were in immigration detention pending theirremoval from Australia.

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

Prof.McMillan said: 'A decision to remove a person who has grownup in Australia and has established family and socialnetworks in this country can have a profound and enduringconsequence both on them and their family and friends. Myinvestigation aimed to determine whether visa cancellationdecisions of this kind are being made to the higheststandard of procedural and substantive fairness. Theinvestigation did not question the underlying policy ofprotecting the Australian community from non-citizens whohave committed serious crimes, and are likely toreoffend.

'Our investigation found that many of thepeople affected by removal decisions came to

Australia asbabies or children and had spent their formative years andall 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 areserving, the correctional sentence imposed after convictionfor their criminal activities.

The Ombudsman concludedthat the majority of cases he examined had at least one, andoften several, significant omissions or inaccuracies in theinformation provided by the Department to the Minister orother decision maker. The standard of procedural fairnessprovided to those liable for visa cancellation wasinconsistent and often fell below that which might beexpected given the gravity of the decisions.

Ninerecommendations are made in the report, with Prof. McMillanconcluding that 'the investigation has highlighted manydeficiencies in the content and application of policies andprocedures for cancellation of long-term permanentresidents visas under s 501 of the MigrationAct .

'The outcomes for affected long-term permanentresidents can, in many instances, be characterised as unfairand unreasonable.

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

Metcalfe, has advised the Ombudsman that theDepartment supports, in whole or in principle, all but oneof the recommendations made in the report. DIMA has alreadybegun to implement some of the Ombudsman srecommendations.

The recommendation not accepted byDIMA relates to the use of s 501 to remove people fromAustralia who DIMA would not have otherwise been able todeport under other sections of the Migration Act becausethey had resided in Australia for over ten years beforecommitting the offence. The government will determinewhether it wishes to undertake a full review of this issue,given its broad policy implications.

The Ombudsmanacknowledged DIMA s positive and constructive approach tothe investigation and report. DIMA is currently reviewingits administration of the s 501 powers and will consider theOmbudsman s recommendations in the review.

Prof.McMillan has asked DIMA to provide him with an update on theprogress of its implementation of hisrecommendations.

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