Recommendations
Recommendation 1
1.37 The committee recommends that the terms of reference
for any future independent inquiries into the administration of the Migration
Act provide the authority for the investigation to include both the Minister
and the Minister's office.
Recommendation 2
2.48 The committee recommends that the Minister ensure all
statements tabled in Parliament that relate to protection visa applications and
review applications that take longer than 90 days to decide contain sufficient
information to ensure effective parliamentary scrutiny of the visa and review
determination process.
Recommendation 3
2.63 The committee recommends that the Migration Act be
amended to require that onshore protection visa applicants be given at least
two weeks notice of the intention to make a negative decision with respect to
an application. In addition, it is recommended that DIMA provide a summary of
its reasons for its intention to make a negative decision and the applicant be
given the opportunity to respond.
Recommendation 4
2.64 The committee recommends that DIMA conduct an
interview with all onshore applicants unless they are to be approved on the
papers.
Recommendation 5
2.65 The committee recommends that DIMA review the
application forms and information sheets provided to offshore humanitarian visa
applicants to ensure that they provide applicants with comprehensive and
detailed information on the relevant visa criteria and assessment process.
Recommendation 6
2.73 The committee recommends that the Government make
training of interpreters a priority and establish a planned, comprehensive
training programme to address the development and ongoing needs of interpreting
services provided by or on behalf of DIMA.
Recommendation 7
2.74 The committee recommends that a quality assurance
process be developed and implemented to monitor and to report to Parliament
through the Department's Annual Report on the quality of interpreting services
provided by or on behalf of DIMA (including the RRT and MRT).
Recommendation 8
2.109 The committee recommends that the Migration Act and
Regulations be reviewed as a matter of priority, with a view to establishing an
immigration regime that is fair, transparent and legally defensible as well as
more concise and comprehensible.
Recommendation 9
2.110 The committee recommends that the review of the
Migration Act and Regulations be undertaken by the Australian Law Reform
Commission.
Recommendation 10
2.111 The committee recommends that the review of the
Migration Series Instructions, announced as part of the Government's response
to the Palmer report, ensure that the Instructions accurately and
clearly reflect and comply with the Migration Act and Regulations.
Recommendation 11
2.112 The committee recommends that DIMA's approach to case
management of protection visa applications be reviewed.
Recommendation 12
2.113 The committee recommends that, as part of its new
National Training Strategy, DIMA review the training methods and approaches for
officers responsible for the processing and assessment of protection visa
applications, with a view to establishing a planned and structured
comprehensive training programme.
Recommendation 13
2.114 The committee recommends that the Government expand
the responsibilities of its recently established College of Immigration Border Security and Compliance to include provision of training for officials responsible for the processing and assessment of protection visa
applications.
Recommendation 14
2.115 The committee recommends that the ANAO commit to a
series of rolling audits to provide assurance that humanitarian and
non-humanitarian visa applications are being correctly processed and assessed.
Recommendation 15
2.140 The committee recommends that the Migration Series
Instructions include a requirement that case officers treat 'dob-in'
information with the upmost caution, particularly if the information is
provided anonymously, and ensure that such information is provided to
applicants and their legal representatives.
Recommendation 16
2.160 The committee recommends that the quality indicators
for DIMA's offshore humanitarian program and onshore protection visa processing
be amended to include qualitative performance measures other than timeliness
(such as the number and outcome of review applications and appeals).
Recommendation 17
2.219 The committee recommends that visa applicants' legal
representatives be accorded the right to participate in primary interviews
conducted by DIMA.
Recommendation 18
2.220 The committee recommends that the Government institute
and fund a duty solicitor scheme for all persons held in immigration detention
(not solely protection visa applicants).
Recommendation 19
2.221 The committee recommends that DIMA cease its practice
of interpreting section 256 of the Migration Act narrowly which, in practice,
limits access to lawyers. Detainees
should be advised of their right to access lawyers, and lawyers should have
ready access to detainees with the minimum possible restrictions.
Recommendation 20
3.198 The committee recommends that DIMIA and the Department
of Finance and Administration review the RRT and MRT current funding levels and
systems in light of the current and expected workloads of both Tribunals.
Recommendation 21
3.12 The committee recommends that the Migration Act be
amended to provide that the MRT and RRT can, in appropriate circumstances,
grant an extension of time in which to lodge applications for review.
Recommendation 22
3.1 The committee recommends that the Migration Act 1958 be amended to provide an entitlement to legal
representation at Tribunal hearings for applicants and an entitlement to call
and examine witnesses at hearings.
Recommendation 23
3.200 The committee recommends that the Commonwealth legal
aid guidelines be amended to provide for assistance in migration matters, both
at the preliminary and review stages, subject to applicants satisfying means
and merit tests, and that necessary funding be provided to meet the need for
such services.
Recommendation 24
3.201 The committee recommends that applicants have a right
to be provided with copies of documents the contents of which Tribunal members
propose to rely upon to affirm the decision that is under review.
Recommendation 25
3.202 The committee recommends that RRT incorporate into its
Practice Directions specific guidelines on its approach to credibility.
Recommendation 26
3.203 The committee recommends that the MRT and the RRT be
included in the training and development initiatives and strategies being
developed by DIMIA as part of the response to the Palmer report.
Recommendation 27
3.204 The committee recommends that the RRT incorporate into
its Practice Directions specific guidelines on the weight to be given to expert
medical reports, especially those detailing a claimant’s history of persecution
with a clinical assessment of their current psychological condition.
Recommendation 28
3.205 The committee recommends that the RRT be able to sit
as a single member body and as a panel of up to three members as appropriately
determined by a Senior, or the Principal Member. Members would be drawn from
people with appropriate backgrounds for considering refugee and humanitarian
applications.
Recommendation 29
4.122 The committee recommends that coverage of the
Immigration Application Advice and Assistance (IAAAS) scheme be extended to
enable applicants for Ministerial intervention to obtain an appropriate level
of professional legal assistance.
Recommendation 30
4.123 The committee recommends that each applicant for
Ministerial intervention be shown a draft of any submission to be placed before
the Minister to enable the applicant to comment on the information contained in
the submission. This consultative process should be carried out within a tight
but reasonable time frame to avoid any unnecessary delay.
Recommendation 31
4.124 The committee recommends that all applicants for the
exercise of Ministerial discretion should be eligible for visas that attract
work rights, up to the time of the outcome of their first application. Children
who are seeking asylum should have access to social security and health care
throughout the processing period of any applications for Ministerial discretion
and all asylum seekers should have access to health care at least until the
outcome of a first application for Ministerial discretion.
Recommendation 32
4.125 The committee recommends that the Minister ensure all
statements tabled in Parliament under sections 351 and 417 (which grant the
Minister the discretionary power to substitute more favourable decisions from
that of the Tribunals) provide sufficient information to allow Parliament to
scrutinise the use of the powers. This should include the Minister's reasons
for believing intervention in a given case to be in the public interest as
required by the legislation. Statements should also include an indication of
how the case was brought to the Minister's attention by an approach from the
visa applicant, by a representative on behalf of the visa applicant, on the
suggestion of a tribunal, at the initiative of an officer of the department or
in some other way.
Recommendation 33
4.126 The committee recommends that the Migration
Act be amended to introduce a system of 'complementary protection' for future asylum seekers
who do not meet the definition of refugee under the Refugee Convention but
otherwise need protection for humanitarian reasons and cannot be returned.
Consideration of claims under the Refugee Convention and Australia's other
international human rights obligations should take place at the same time. A separate humanitarian stream should be established
to process applicants whose claims are in this category, including a review
process.
Recommendation 34
6.15 The committee recommends that the use of detainee
labour should be subject to independent investigation by the Ombudsman or HREOC
and re-examined as part of the review of the immigration detention services
contract.
Recommendation 35
6.34 The committee recommends that the use of behavioural
management techniques and restrictive detention be re-examined as part of the government's
proposed review of the immigration detention contract. The committee further
recommends that HREOC and the Royal Australia and New Zealand College of
Psychiatrists and other stakeholders be consulted during the process.
Recommendation 36
6.35 The committee recommends that the 'management units'
be closed. In the alternative, their use should be limited for short periods
not exceeding twenty-four hours in cases of emergency.
Recommendation 37
6.36 The committee recommends that all measures which
constitute a further deprivation of liberty within a detention centre be
established by law, the grounds and procedural guidelines should be specified
and procedural safeguards enforceable in the general courts.
Recommendation 38
6.44 The committee recommends that the forthcoming review
of the detention services contract include specific examination of internal
complaint processes including, among other things, mechanisms for confidential
complaints and protection from victimisation.
Recommendation 39
6.45 The committee recommends that the Migration Act be
amended to provide HREOC with an express statutory right of access to all
places of immigration detention;
Recommendation 40
6.46 The committee recommends that a system of regular
official visits by an independent complaints body be instituted and this
function be performed cooperatively by HREOC and the Commonwealth Ombudsman.
Recommendation 41
6.58 The committee recommends that the review of the
immigration detention services contract include a review of the Immigration
Detention Standards, Migration Series Instructions and Operational Procedures
and ensure that rules relating to access to detainees are consistent with
international standards.
Recommendation 42
6.59 The committee recommends that the Migration Act be
amended to give effective recognition to the right of detainees to have access
to lawyers and other visitors, including medical and religious visitors.
Recommendation 43
6.60 The committee recommends that restrictions on access
to lawyers and other visitors imposed for disciplinary or behavioural
management purposes should be expressly prohibited.
Recommendation 44
6.134 The committee recommends that there be a presumption
against the imposition of a liability to pay the Commonwealth for the cost of
detention, subject to an administrative
discretion to impose the debt in instances of abuse of process or where
applicants have acted in bad faith.
Recommendation 45
6.145 The committee recommends that the Migration Act be
amended to permit the mandatory detention of unlawful non-citizens for the
purpose of initial screening, identity, security and health checks and that the
initial period of detention be limited to up to ninety days.
Recommendation 46
6.146 The committee recommends the continuation of detention
for a specified limited period should be subject to a formal process, such as
the approval of a Federal Magistrate, on specified grounds and limited to
situations where: there is suspicion that an individual is likely to disappear
into the community to avoid immigration processes; or otherwise poses a danger
to the community.
Recommendation 47
6.147 The committee recommends release into the community on
a bridging visa with a level of dignity that allows access to basic services,
such as health, welfare, housing and income support or work rights.
Recommendation 48
7.132 The committee recommends that, as a fundamental
overarching principle, direct responsibility for the management and provision
of services at immigration detention centres in Australia should revert to the
Commonwealth.
Recommendation 49
7.133 The committee recommends that the detention services
contract between DIMIA and GSL be redrafted immediately to incorporate all
relevant suggestions and recommendations from the Palmer Report, the Hamburger
Report and recent ANAO performance audit reports, particularly in relation to
performance measures, outcomes, service quality and risk management.
Recommendation 50
7.134 The Committee recommends that a statement of
detainees' rights and conditions be established within the Migration
Regulations, including clear provisions for the making of complaints to a third
party, and third party powers to make rectification orders.
Recommendation 51
7.135 The committee recommends that an independent body be
established with ongoing responsibility for monitoring the operation and
management of immigration detention centres and the detention services
contract.
Recommendation 52
8.34 The committee recommends that the Temporary Protection
Visa regime be reviewed. Specifically, the review should consider the possible
abolition of the '7 day rule', and that all TPV holders be given the
opportunity to apply for permanent protection visa after a specified period.
Recommendation 53
8.68 The committee recommends that all holders of Bridging
Visas Class E should be given work rights.
Recommendation 54
8.70 The committee recommends that if the Commonwealth
Government rejects the proposal that all Bridging Visa holders have work
rights, the Committee recommends that the current '45 day rule' be doubled to
90 days to give people more time to apply for a protection visa.
Recommendation 55
8.115 The committee recommends that, in the light of
increasing numbers of refugees from Africa, DIMIA should reassess its resettlement
programs to ensure that services are relevant, and that sufficient budget
appropriation is made to cover all the costs of implementing those programs.
Recommendation 56
9.28 The committee recommends that the Migration Act be
amended to require a comprehensive pre-removal risk assessment to ensure no
'refoulement', humanitarian or welfare concerns exist.
Recommendation 57
9.29 The committee recommends that the Migration Act be
amended to require that all prospective removees be provided with reasonable
notice.
Recommendation
58
9.85 That the committee further
review the operation of section 501 and the report of the Commonwealth
Ombudsman investigation into the administration of the cancellation of visas on
character grounds. Further, the committee recommends that, as per the
Ombudsman's recommendations, the use of Section 501 to cancel permanent
residency should not be applied to people who arrived as minors and have stayed
for more than ten years.
Recommendation 59
9.119 The committee recommends that, in order to comply with
its 'non-refoulement' obligations and to ensure the welfare of persons removed
or deported from Australia, the Commonwealth continue to enhance the scope of
its informal representations to foreign governments, encourage monitoring by
Australian overseas missions, and continue to develop strong relationships with
local and overseas-based human rights organisations.
Recommendation 60
9.120 The committee recommends that the Commonwealth
Government review and clarify its removal and deportation processes to ensure
that formal and proper procedures for welfare protection are in place for the
reception of persons being removed or deported from Australia.
Recommendation 61
10.72 The committee recommends that the Migration Act and
Regulations be amended to allow for greater flexibility and discretion in
dealing with breaches of the conditions of student visas.
Recommendation 62
10.75 The committee recommends that the recommendations of
the Evaluation of the Education Services
for Overseas Students Act 2000 continue to be implemented as a high
priority.
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