The Australian Government has decided on a number of changes to both the law and the handling of matters relating to people in immigration detention.
The broad framework of the Government's approach is unaltered. It is essential that we continue to have an orderly and well managed migration and visa system.
There can however be significant improvements which will mean that current policy is administered with greater flexibility, fairness and, above all, in a more timely manner.
The Minister for Immigration has already announced changes in relation to the issuing of removal pending visas.
The Migration Act will be amended to provide an additional non-compellable power for the Minister to specify alternative arrangements for a person's detention and conditions to apply to that person.
The purpose of this change is to enable the detention of families with children to take place in the community where conditions would be set to meet their individual circumstances.
The Migration Act will also be amended to provide an additional non-compellable power for the Minister to grant a visa to a person in detention.
In future all primary protection visa decisions taken by the Department of Immigration will need to occur within three months of application. Likewise, reviews by the Refugee Review Tribunal must occur within three months of application.
Cases where these time limits are not met will be the subject of periodic reports to Parliament.
Where a person has been in detention for two years or more there will automatically be a requirement that every six months a report on that person must be furnished by the Department to the Ombudsman. The Ombudsman will assess that report, providing his assessment to the Minister who must then table the assessment in Parliament.
The Ombudsman may in his assessment recommend the release of a person, the grant of a permanent visa, that the person remain in detention or indeed any other recommendation he thinks fit.
No recommendation of the Ombudsman will in any way bind the Minister.
The Department will complete all primary assessments of applications for permanent protection visas from the existing case load of temporary protection visa holders by 31st October 2005. To expedite this process decisions will be taken on the application papers although the option of an interview will be available if there were a disposition to reject an application for a permanent visa.
Implementation of these changes to the Immigration Act and related procedures will be overseen by an Inter-departmental Committee to be chaired by the Secretary of the Department of Prime Minister and Cabinet
The Member for Kooyong Mr Petro Georgiou MP has informed me that he will be withdrawing the two private members' bills of which he has given notice.
Detail of Immigration Changes
Children and families The Australian Government will amend the Migration Act 1958 to provide an additional non-compellable power for the Minister, acting personally, allowing her to specify alternative arrangements for a person's detention and impose conditions to apply to that person. The Act would be amended to state that 'the Parliament affirms as a principle that a minor child shall only be detained as a measure of last resort'. The objective of these amendments is to ensure that families with children in detention will be placed in the community, under community detention arrangements, with conditions set to meet their individual circumstances.
The Second Reading Speech to the Bill will make it clear that the overall intention of the package of amendments will be to ensure that the best interests of minor children are taken into account and that any alternatives to detention of children are considered in administering the relevant provisions. The new arrangements will allow all families with children who are currently in detention centres and Residential Housing Projects to be placed in the community under community detention arrangements. Where their primary processing has been completed and removal arrangements are not underway, community detention arrangements will be made for these families as soon as possible, following decision by the Minister. It may take 4-6 weeks to make suitable arrangements for the families currently in detention.
In future where families come into detention, which occurs primarily as a result of compliance action, they would be placed in Residential Housing Projects closest to the city of their prior residence (where available) while assessment takes place about their prospect for removal. The Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) advises that this primary assessment will take no longer than 3-4 weeks. During this time the Minister would be able to make a determination for their alternate detention in the community. It is the Government's intention that where primary assessment is being undertaken, removal is imminent or conditions of community detention have been breached, families (including fathers) would be housed in Residential Housing Projects in the capital city of their prior residence (where available) rather than detention centres. This intention will be reflected in the Second Reading Speech and the Explanatory Memorandum to the Bill.
Amendments to DIMIA instructions to staff regarding families in detention will be made to refer to the Second Reading Speech for the Bill. Guidelines will also be prepared for those preparing documents for the exercise of the Minister's discretion - these will also make the intention clear. Both the DIMIA instructions and guidelines are public documents.
Certain long term detainees The Government announced on 16 June 2005 that it has amended the Removal Pending Bridging Visa (RPBV) regulations to focus eligibility on persons whose applications have been refused at both the primary and review stages and where their removal is not practicable at the time (or within a short timeframe). Having litigation on foot will not be a bar to eligibility, unless the litigation is the only reason that removal cannot be achieved. The Government will also amend the Migration Act to make the Minister's invitation to apply for an RPBV a non-compellable power.
General power for the Minister to grant a visa to a person in detention The Government will amend the Migration Act to provide an additional non-compellable power for the Minister, acting personally, to grant a visa to a person in detention.
Protection visa processing time limits The Government will amend the Migration Act to include processing time limits in the Act for: Primary Protection Visa decision making by DIMIA a within a three month period from the date of application; and Review by the Refugee Review Tribunal (RRT) within a three month period from the date of application for review. DIMIA will be required to report a failure to meet the time limits to the Minister who will be required to regularly table such reports in parliament (in a manner consistent with the privacy of individual applicants). It is noted that elements of processing time are not within DIMIA's or the RRT's control (for example security checking processes, provision of information from the applicant and the timeliness of information from other Governments), and that information will need to be addressed in any reports that are provided to the Minister.
Ombudsman oversight The Commonwealth Ombudsman will be given a specific role reviewing the cases of persons who have been in detention for more than two years. This role would be consistent with the Ombudsman's existing powers but would be formalised in legislation to ensure regular reporting by DIMIA and tabling of assessments in Parliament: DIMIA would be required to report every six months to the Commonwealth Ombudsman on the status and case management of any person in immigration detention for two years or longer. The Ombudsman could conduct appropriate inquiries on any issues arising from the report, including asking DIMIA to furnish further information, answer questions (including under oath) and produce documents. The Ombudsman also has the power to enter subject agencies' premises. The Ombudsman would provide an assessment of that report and any recommendations regarding detainee cases to the Minister for Immigration. The Ombudsman will be able to make recommendations including, but not limited to, recommending continued detention, release into the community or the granting of permanent residence.
The Minister for Immigration would be required to table a copy of the assessment and any recommendations from the Ombudsman in Parliament. The copy to be tabled would take into account the need to protect the privacy of individual detainees. No recommendation by the Ombudsman will in any way bind the Minister. The process for reporting on and assessing cases would be established in such a way as to ensure it did not give rise to any additional legal rights including rights of appeal. Rapid processing of outstanding Permanent Protection Visa applications from TPV holders Noting that approximately two-thirds of the current TPV caseload has already been processed at primary stage by DIMIA, except for finalisation of ASIO checks: In relation to the remainder of applications at primary and review stage: Decision making will proceed on the basis of written material with processing staff making decisions on the basis of the papers/claims made by applicants. In cases where an assessment was made on the papers that refusal was assessed as likely, an interview would be offered to the applicant to allow them an opportunity to answer questions and support their application orally. Cases refused at the primary stage would then be able to proceed to the RRT as per the normal course of events. DIMIA will work with ASIO to ensure timely resolution of security checks. At the moment the completion of security checks is a significant factor in finalising decisions and issuing visas to a significant group of cases already processed by DIMIA or the RRT. it is noted that there are currently approx 800 cases still awaiting finalisation of security checks and efforts will be made to ensure this occurs as soon as practicable. DIMIA and the RRT will accord the highest priority to the finalisation of the caseloads, including through the formation of taskforces.
DIMIA will complete all primary assessments of applications for Permanent Protection Visas from the existing caseload of Temporary Protection Visa holders by 31 October 2005. Overall management of changes - Immigration IDC The Government will establish a high level Immigration IDC chaired by the Secretary of PMC to oversee the implementation of all changes discussed above. Other agencies involved will include the DIMIA, the Attorney-General's Department, the Department of Foreign Affairs and Trade, ASIO and the Department of Family and Community Services. The Minister for Immigration and the Chairman of the IDC will meet regularly with interested members of the Government to discuss progress on implementation of the changes.