15–16

PART 4—WHAT WE DO
• adopts guidelines for the amount of
time a person may be questioned
without breaks
• facilitates the claiming of superannuation
by persons being removed, by providing
the appropriate form as a standard part
of the removal process
In December 2015 the department advised
that a number of reviews were underway that
covered most of these recommendations.
People detained and later
released as ‘not-unlawful’
The department provides the office with
six-monthly reports on people who were
detained but later released with the system
descriptor ‘not-unlawful’. This descriptor is
used when a detained person is found to be
holding a valid visa, usually because of case law
affecting his or her particular circumstance or
because of notification issues surrounding visa
cancellation decisions.
For the calendar year 2015, the department
reported that out of a total of 7563 people
detained, 22 (0.29 per cent) were later released
as not-unlawful, compared to 29 (0.83 per cent)
out of 3486 persons detained during 2014.
The office is satisfied that detention in these
cases was not the result of systemic issues
or maladministration.
However, the average time people have spent
in detention prior to errors being identified,
and their subsequent release as ‘not-unlawful’,
has increased from an average of five to
six days in 2014 to an average of 12 days
during the first half of 2015. For the latter half
of 2015, this average increased to 65 days. It
is understood that this increase is the result of
significant delays in identifying lawfulness in five
individual cases.
Immigration detention reviews
Statutory reporting (two-year review reports)
When a person has been in immigration
detention for two years, and then after every
six months, the Secretary of the department
must give the Ombudsman a review, under
s 486N of the Migration Act 1958, relating to
the circumstances of the person’s detention.
Section 486O of the Migration Act requires
the Ombudsman to give the Minister for
Immigration and Border Protection a report on
the appropriateness of the arrangements for
that person’s detention. The Ombudsman also
provides a de-identified version of the report to
the Minister, which is tabled in the Parliament.
In 2015–16 the number of people subject
to reporting under s 486O was at its highest
point since the oversight function commenced
in 2005. Although there was an increase
in the number of people released from
detention, the number of cases no longer
subject to reporting was matched by new
cases, including people detained after their
visas had expired or were cancelled due to
character concerns. The number of reportable
cases therefore remained steady, although it is
expected to decline in the next financial year.
The office conducts interviews, primarily by
telephone, with people in long-term detention.
This highlights individual and emerging systemic
issues experienced by people in community
detention and in detention facilities.
46 | COMMONWEALTH OMBUDSMAN ANNUAL REPORT | 2015–16