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Commission’s report into prolonged detention following visa cancellation

Rights and Freedoms

The Government should appoint an independent reviewer to examine the basis for the continued detention of people who have been in immigration detention for prolonged periods, including a detailed assessment of any risk they pose to the community, the President of the Australian Human Rights Commission has said in a report tabled in Parliament today.

The AHRCA Report 141 (Immigration detention following visa refusal or cancellation under s 501 of the Migration Act) investigated complaints made by 11 individuals in immigration detention who have had their visas cancelled and who allege their human rights were breached by the Department of Home Affairs.

It makes recommendations for practical outcomes for people subject to visa cancellations on character grounds who are facing prolonged — and in some cases indefinite—immigration detention.

During the inquiry, the Commission found systemic issues and structures which led to breaches of human rights. The issues the Commission found include:

  • the failure of the Department of Home Affairs to refer some cases to the Minister to consider a community detention placement or the grant of a bridging visa
  • long delays in making referrals in other cases
  • lack of transparency in decisions by the Minister about whether to release a person from immigration detention.

The report recommends an amendment of the Minister’s guidelines to ensure all people in immigration detention are eligible for referral, whether or not they have had their visa cancelled on character grounds.

When the Department refers cases to the Minister, it should include detailed descriptions of any specific risk the individual is said to pose, the evidence said to support that assessment, and options for mitigating that risk.

The Department confirmed that a review of the Ministerial guidelines is proposed and noted the specific recommendations made by the Commission.

The Commission also made a number of recommendations about how risk assessments are carried out, including the use of the CPAT (community protection assessment tool). The Department agreed in part with these recommendations and acknowledged the importance of developing and refining its community risk assessment framework.

A key recommendation in the report was the appointment of an independent reviewer to provide advice to the Minister about whether it continued to be appropriate to detain people who had been in immigration detention for protracted periods. A similar approach has been taken for asylum seekers with adverse security assessments. The Commission suggested that the independent reviewer could be tasked with conducting a more detailed assessment of risk than the Commonwealth Ombudsman is currently able to do in the course of its statutory reviews. The Department disagreed with this recommendation.

The inquiry did not consider decisions to cancel or refuse a visa, nor provide a view on whether any of the complainants should be released into the community. It focused on whether the Commonwealth’s decision to continue to detain the complainants was consistent with their human rights and in what ways decisions could be made that would be more compatible with human rights standards in such difficult contexts.

Over the past three years, the Commission has received an increasing number of complaints from individuals in immigration detention as a result of having their visa cancelled or refused on character grounds.

Some of the complainants described in this report had spent time in prison, but it is concerning that a number of them spent more time in immigration detention than they did in prison serving the criminal sentence that triggered their visa cancellation or refusal.

It is critical that the detention review practices and policies of the Department of Home Affairs protect the Australian community while also safeguarding the human rights of detainees — in particular the right to be free from arbitrary detention. 

You can read the full report here.