Footnotes

Footnotes

[1] A list of submissions is at Appendix 1

[2] A list of hearings and witnesses is at Appendix 2

[3] Mick Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, July 2005 (Palmer Report), available at: http://www.minister.immi.gov.au/media_releases/media05/palmer-report.pdf . See also Appendix 3 of this report.

[4] Neil Comrie, Inquiry into the Circumstances of the Vivian Alvarez Matter, September 2005 (Comrie Report), available at: http://www.ombudsman.gov.au/publications_information/Special_Reports/2005/alvarez_report03.pdf See also Appendix 4 of this report.

[5] See Comrie Report, pp. xv – xvi.

[6] Palmer Report, p. ix.

[7] Comrie Report, p. xvi.

[8] Migration Amendment (Detention Arrangements) Act 2005; see further, Prime Minister the Hon John Howard MP, Immigration Detention, Media Release, 17 June 2005, at: http://www.pm.gov.au/news/media_releases/media_Release1427.html

[9] DIMIA, Estimates Hansard, 1 November 2005, p. 15.

[10] Committee Hansard, 11 October 2005, p. 5; see also Mr Andrew Metcalfe, 'Implications of the Palmer Report Future Changes', IPPA Seminar, 25 November 2005, available at: http://www.immi.gov.au/media_releases/media05/ippa_speech.pdf (accessed 9 December 2005).

[11] Committee Hansard, 11 October 2005, p. 5; see also DIMIA, answers to questions on notice, 11 October 2005, Attachments 1, 2 and 3 for further information in relation to the departmental restructure.

[12] Committee Hansard, 11 October 2005, p. 4.

[13] Transcript of the Prime Minister the Hon John Howard MP, Joint Press Conference with Senator the Hon Amanda Vanstone, Minister for Immigration, Parliament House, Canberra, 14 July 2005, www.pm.gov.au/news/interviews/Interview1460.html (accessed 9 December 2005); see also DIMIA, Committee Hansard, 11 October 2005, p. 4. The government has also provided an assistance package designed to help re-establish Ms Solon in Australia: see Senator the Hon Kay Patterson, Minister for Family and Community Services, 'Government Welcomes Vivian Solon's Return', Media release, 18 November 2005, http://www.facs.gov.au/internet/minister1.nsf/content/vivian_solon_package.htm (accessed 14 December 2005).

[14] See for example, Palmer Report, Appendix A, pp 196-197.

[15] Senator Chris Evans, Senate Hansard, 10 October 2005, pp 50–51.

[16] Prime Minister the Hon. John Howard MP, A Guide on Key Elements of Ministerial Responsibility, 1998, p. 13, www.pmc.gov.au/guidelines/docs/ministerial_responsibility.rtf (accessed 8 December 2005).

[17] Quoted by Mick Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, July 2005, p. i.

[18] Sections 351 and 417, Migration Act 1958.

[19] Senate Select Committee on Ministerial Discretion in Migration Matters, Report, March 2004, p. xi.

[20] Senate Select Committee on Ministerial Discretion in Migration Matters, Report, March 2004, p. xiii.

[21] Senate Select Committee on Ministerial Discretion in Migration Matters, Report, March 2004, p. xiii.

[22] Transcript of the Prime Minister the Hon. Mr John Howard MP, Joint Press Conference with Senator the Hon Amanda Vanstone, Minister for Immigration, Parliament House, Canberra, 14 July 2005, available from www.pm.gov.au/news/interviews/Interview1460.html (accessed 9 December 2005).

[23] Palmer Report, p. ix.

[24] Palmer Report, p. ix.

[25] Palmer Report, p. 166.

[26] Palmer Report, p. x.

[27] Comrie Report, p. 31.

[28] Comrie Report, p. xvi.

[29] Geoffrey Barker, 'Blame belongs at the top', Australian Financial Review, 18 July 2005, p. 54.

[30] 'DIMIA: the buck stops where?', Public Sector Informant, July 2005, p. 8. Note also the comments of Mr Comrie, Committee Hansard, 8 November 2005, p. 35

[31] The Hon John Cobb MP, Minister for Citizenship and Multicultural Affairs, House of Representatives Hansard, 11 October 2005, p. 10.

[32] Mr Comrie, Committee Hansard, 8 November 2005, p. 31

[33] Mr Comrie, Committee Hansard, 8 November 2005, p. 30

[34] On this point, the committee notes the report of the Senate Finance and Public Administration References Committee examination of employment, management and accountability of staff under the Members of Parliament (Staff) Act 1984 (the MOPS Act), October 2003.

[35] DIMA, Submission 205, p. 5.

[36] CMC Submission 165, p. 8. See also Project SafeCom , Submission 8A, pp 2-3; Falun Dafa Association of NSW, Submission 143, p. 4; CASE for Refugees, Submission182, p. 2.

[37] AJA, Submission 184, pp 6-7.

[38] AJA, Submission 184, pp 6-7.

[39] Committee Hansard, 11 October 2005, p. 27.

[40] DIMA, Answer to Question on Notice, 25 October 2005, p 3.

[41] Mr Birrs, Committee Hansard, 26 September 2005, p. 71.

[42] Mr Harbord, Committee Hansard , 26 September 2005, p. 16.

[43] Ms Elizabeth Biok, Committee Hansard, 28 September 2005, p. 62. See also comments of Ms Dymphna Eszenyi, Law Society of South Australia, Committee Hansard, 28 September 2005, p. 3.

[44] The '7 day rule' applies when an asylum seeker, enroute to Australia, spent more than 7 days in a country where they could have sought protection.

[45] Albany Community for Afghan Refugees, Submission 177, p. 4.

[46] DIMA, Answer to Question on Notice, 5 December 2005, p. 37.

[47] DIMA, Answer to Question on Notice, 5 December 2005, pp 44-45.

[48] DIMA, Answer to Question on Notice, 5 December 2005, p. 14.

[49] See for example Hopestreet Urban Compassion, Submission 30, p. 1; Catholic Migrant Centre, Submission 165, pp 2-3; Legal Aid New South Wales, Submission 166, pp 10-12; Albany Community for Afghan Refugees, Submission 177, p. 4; CASE for Refugees, Submission 182, p. 2; Law Institute of Victoria, Submission 206, p. 25; NSW Refugee Health Service, Submission 209, p. 5.

[50] Hopestreet Urban Compassion, Submission 30, p. 1; Catholic Migrant Centre, Submission 165, pp 2-3; Law Institute of Victoria, Submission 206, p. 25.

[51] Legal Aid NSW, Submission 166, pp 10-11.

[52] LIV, Submission 206, p. 25. The two cases involved delays of over a year in cases which LIV suggested warranted priority decision-making.

[53] LIV, Submission 206, p. 25.

[54] LSSA, Submission 110, pp 4-5.

[55] LSSA, Submission 110, pp 4-5.

[56] LSSA, Submission 110, pp 4-5.

[57] LSSA, Submission 110, p. 4.

[58] LIV, Submission 206, p. 22.

[59] CMC, Submission 165, p. 9. Other submissions which referred to long delays in issuing visas following positive determinations by the RRT included Albany Community for Afghan Refugees, Submission 177, CASE for Refugees, Submission 182, p. 2 and Mrs Dallas Mazoori, Submission 197, p. 3.

[60] ACAR, Submission 177, p. 4.

[61] Legal Aid NSW, Submission 166, p. 11.

[62] LSSA, Submission 110, pp 4-5.

[63] Committee Hansard , 28 September 2005, pp 63-64.

[64] See Chapter 8 for a discussion of bridging visas.

[65] Catholic Migrant Centre, Submission 165, pp 5-6.

[66] NSW Refugee Health Service, Submission 209, p. 5.

[67] Parliamentary Library, Bills Digest No. 52 2005–06. Migration and Ombudsman Legislation Amendment Bill 2005, (Australian Parliament 2005).

[68] Parliamentary Library, Bills Digest No. 52 2005–06. Migration and Ombudsman Legislation Amendment Bill 2005, p. 5.

[69] Law Society of South Australia, Submission 110, pp 4-5.

[70] DIMA, Answer to Question on Notice, 5 December 2005, p. 39.

[71] On 17 June 2005, the Prime Minister made a commitment that all primary protection visa applications will be decided within three months of the receipt of the application. This has since been refected in legislation. The Prime Minister also set a deadline of 31 October 2005 for the Department to complete all primary assessments of applications for permanent protection visas from the existing caseload of temporary protection visa holders. DIMA, Answer to Question on Notice, 5 December 2005, p. 40.

[72] DIMA, Answer to Question on Notice, 5 December 2005, p. 40.

[73] Sanctuary under Review, p. 114.

[74] Migration Act 1958 (Cth), subsection 54(3).

[75] Legal Aid NSW , Submission 166, pp 5-6. The NSW Legal Aid Commission provides legal services to members of the community and to protection visa applicants at Villawood Detention Centre under the Government's 'Immigration Advice and Application Assistance Scheme.'

[76] Legal Aid NSW, Submission 166, p. 7.

[77] CMC, Submission 165, p. 7.

[78] Legal Aid NSW, Submission 166, p. 5.

[79] Legal Aid NSW, Submission 166, p. 6.

[80] Legal Aid NSW, Submission 166, p. 7.

[81] CMC, Submission 165, pp 6-7. The Catholic Migrant Centre also advised that in a small number of cases, decisions had been made to refuse protection visas without all of the relevant evidence, including DIMA's failure to interview applicants.

[82] Legal Aid NSW, Submission 166, pp 5-8.

[83] CMC, Submission 165, p. 7.

[84] Sanctuary under Review, Recommendation 4.4. 'The Committee recommends that, where decision-makers are of the view that an applicant should not proceed to interview stage, the decision-maker must provide reasons for that decision to the applicant'. The committee made that recommendation after noting evidence that some 87 per cent of non-detention applications were rejected without interview and some 33 per cent of detention cases rejected without interview. Sanctuary under Review, p. 114.

[85] Government response, 8 February 2001, p. 5.

[86] DIMA, Answer to Question on Notice, 5 December 2005, pp 17, 37.

[87] Ms Diane Gosden, Submission 97, pp 1-2.

[88] See for example Ms Rosemary McKenry, Submission 2, p. 2; L V Nayano Taylor-Neumann, Submission 135, pp 5-6; Survivors of Torture and Trauma Assistance and Rehabilitation Service, Submission 138, p. 2; Albany Community for Afghan Refugees, Submission 177, p. 4; Ms Frederika Steen, Submission 224, pp 5-6.

[89] Ms Rosalind Berry, Submission 137, pp 4-5.

[90] L V Nayano Taylor-Neumann, Submission 135, pp 5-6.

[91] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, pp 139-141.

[92] DIMA, 2004-2005 Annual Report, pp 190, 191-2.

[93] Senate Foreign Affairs, Defence and Trade Committee, The removal, search of and discovery of Ms Vivan Solon: Final Report, 8 December 2005, Commonwealth of Australia, paragraph 2.21.

[94] Senate Foreign Affairs, Defence and Trade Committee, The removal, search of and discovery of Ms Vivan Solon, Recommendation 2.

[95] DIMA, 2004-2005 Annual Report, pp 190, 191.

[96] Name withheld, Submission 210, p. 3.

[97] See, for example, University of NSW Centre for Refugee Research and the Australian National Committee on Refugee Women, Submission 170, p.8.

[98] Committee Hansard, Friday, 7 October 2005. p. 16

[99] Ms Claire O'Connor, Committee Hansard, 26 September 2005, p. 30.

[100] Committee Hansard , 26 September 2005, p. 6.

[101] CMC, Submission 165, pp 8-9.

[102] Dr Margaret Kelly, Submission 103, p. 10.

[103] Dr Margaret Kelly, Submission 103, p. 10.

[104] George Newhouse, 'Immigration reform reaches a dead end', Sydney Morning Herald, 6 October 2005, p. 13.

[105] Ass. Professor Kneebone, Castan Centre for Human Rights, Submission 71, pp 2, 11.

[106] Australian Catholic Bishops Conference, Submission 73, p. 5. See also sub LIV, Submission 206, p. 11.

[107] LIV, Submission 206, pp 10-12.

[108] DIMA, Submission 205, p. 6.

[109] LIV, Submission 206, pp 24-25.

[110] LIV, Submission 206, pp 24-25.

[111] CMC, Submission 165, pp 8-9.

[112] UJA & the Hotham Mission, Submission 190, p. 7.

[113] UJA & the Hotham Mission, Submission 190, pp 7, 21. See also Ms Rost, Submission 220, p. 36. The high internal movement of staff within DIMA was acknowledged by DIMA and the ANAO in a recent audit. See Australian National Audit Office, Workforce Planning, Audit Report No. 55, 2004-2005, p. 79.

[114] Ms Mary Biok, Committee Hansard, 28 September 2005, p.68.

[115] Sanctuary under Review, p. 127.

[116] Government response, 8 February 2001, p. 5.

[117] It advised that protection visa decisions are made by Departmental officers of a higher classification than other decision-makers under the Migration Act, who have undertaken induction training and refresher training for this work including: refugee law and international obligations; cultural, gender and age sensitivities; legal requirements of administrative decision making; policy and procedures; and selection and use of country information. In addition, the CIS [Country Information Service] organises country information seminars for decision-makers, often drawing on visiting international experts or local commentators and academics. In total, between 280 and 300 hours of training courses are provided for protection visa decision-makers each year. DIMA, answer to question on notice, 5 December 2005.

[118] DIMA noted that, of the unauthorised boat arrivals between 1999 and 2001, DIMA approved 85 percent of applications from Afghan nationals and 89 percent from Iraqi nationals in the first instance. The Department’s approval rate in relation to applications for further protection for Iraqi nationals was 71 percent, and for Afghan nationals 67 percent. That is, DIMA has been approving over two thirds of the applications, notwithstanding the significant changes that have taken place in country circumstances since many of these people were originally assessed. In comparison, approval rates in comparable European countries in 2004 for these nationalities ranged from less than 1 percent to some 66 per cent, with approval rates in many countries being below 20 per cent. DIMA, Answer to Question on Notice, 25 October 2005, p. 32; DIMA, Answer to Question on Notice, 5 December 2005, pp 15, 26.

[119] DIMA, Answer to Question on Notice, 25 October 2005, pp 2-3, 27-8.

[120] Committee Hansard, 7 October 2005, p. 5.

[121] Australian National Audit Office, Management of the Processing of Asylum Seekers, Audit Report No. 56, 2003-2004, p. 12.

[122] Australian National Audit Office, Workforce planning within the Department of Immigration and Multicultural and Indigenous Affairs, Audit Report No. 56, 2001-2002, pp 18-19.

[123] Australian National Audit Office, Workforce planning within the Department of Immigration and Multicultural and Indigenous Affairs, Audit Report No. 56, 2001-2002, p. 18.

[124] See DIMA, Report from the Secretary to Senator the Hon Amanda Vanstone Minister for Immigration and Multicultural and Indigenous Affairs: Implementation of the Recommendations of the Palmer report of the Inquiry into the circumstances of the immigration detention of Cornelia Rau (September 2005), tabled in Parliament on 6 October 2005. Copy at Appendix 7.

[125] DIMA, Answer to Question on Notice, 5 December 2005, pp 18-9.

[126] DIMA, Answer to Question on Notice, 5 December 2005, p. 20.

[127] See, for example, Mr Patrick Gee, National Council of Churches in Australia, Committee Hansard, 27 September 2005, pp 62 -63.

[128] UJA & the Hotham Mission, Submission 190, p. 6.

[129] Mr Wright, Committee Hansard , 7 October 2005, p. 36.

[130] Mr Wright, Committee Hansard , 7 October 2005, p. 35.

[131] See DIMA, answer to Question on Notice, received 5 December 2005, p. 18. Approximately 80 per cent of all information sourced for the CIS database comes from media based in countries being monitored or the surrounding region or from international agencies. A further 10 per cent is sourced from United Nations agencies. Information sourced from non‑government organisations, other government, academic and special interest groups make up the remaining 10 per cent. Information provided by DFAT comprises 0.5 per cent of holdings. DIMA, Answer to Question on Notice, 5 December 2005, p. 14. For background information on the CIS see Sanctuary under Review, pp 130-133.

[132] DIMA, answer to Question on Notice, 5 December 2005, p. 19.

[133] DIMA, answer to Question on Notice, 5 December 2005, p. 19.

[134] Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 45.

[135] See, for example, Project SafeCam, Submission 8A, p. 2; Ms M E Flenley, Submission 91, p. 2; Ms Linda Anchell, Submission 95, p. 2; Ms Rosalind Berry, Submission 137, p. 4; and Ms Kerry Barry, Submission 146, p. 2.

[136] Name withheld, Submission 210, p. 2.

[137] Ms Mary Biok, Committee Hansard , 28 September 2005, p. 63.

[138] Sanctuary under Review, Recommendation 4.6.

[139] Australian National Audit Office Audit Report No. 56, 2003-2004, Management of the Processing of Asylum Seekers, p. 45.

[140] DIMA, Answer to Question on Notice, 25 October 2005, pp 28-30.

[141] DIMA, Answer to Question on Notice, 25 October 2005, p 30. See also See DIMA, answer to question on notice, 5 December 2005, pp 14, 18-19.

[142] DIMA, answer to question on notice, 5 December 2005, p. 19.

[143] See also Law Society of South Australia, Submission 110, p.3.

[144] See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, Geneva, January 1992, p. 34. The Handbook was recognised as a non-binding guide by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs 1989) 169 CLR 379. Law Society of South Australia, Submission 110, pp 3-4.

[145] Law Society of South Australia, Submission 110, pp 3-4. See also Mr Anthony Krohn, Submission 131, p. 2.

[146] Law Society of South Australia, Submission 110, pp 3-4.

[147] See, for example, Project SafeCom, Submission 8a, pp 6-7.

[148] Ms Rosalind Berry, Submission 137, p. 4.

[149] DIMA, answer to question on notice, 5 December 2005, p. 50. See also Mr Douglas Walker, Assistant Secretary Committee Hansard , 11 October 2005, p. 26.

[150] DIMA, Answer to Question on Notice, 25 October 2005, pp 4 -5; DIMA, Answer to Question on Notice, 5 December 2005, p. 50.

[151] Law Society of South Australia, Submission 110 , pp 3-4.

[152] DIMA, Answer to Question on Notice, (11 October 2005), p. 16. DIMA advised the committee that it relies on the services of specialised language analysis agencies established in other countries.

[153] DIMA, answer to question on notice, 5 December 2005, pp 44-45.

[154] Catholic Migrant Centre, Submission 165, p. 8.

[155] LIV, Submission 206, p. 6.

[156] RASSA, Answer to Question on Notice, 28 October 2005, p. 1.

[157] CMC, Submission 165, pp 8-9.

[158] A Just Australia, Submission 184, p. 11.

[159] Name withheld, Submission 84, p. 2.

[160] Albany Community for Afghan Refugees, Submission 177, p. 4.

[161] Ms Euthymia Sephton, Submission 25, p. 1.

[162] Albany Community for Afghan Refugees, Submission 177, p. 4.

[163] Mrs Dallas Mazoori, Submission 197, p. 2.

[164] Mr Guy Coffey, Submission 81, p. 4.

[165] Name withheld, Submission 210, p. 3.

[166] LIV, Submission 206, p. 6.

[167] The Palmer Report did note that the problems it identified with respect to the compliance and detention areas ‘might not be endemic to DIMA as a whole’. Palmer Report, p. 213.

[168] Palmer Report, p. 213.

[169] Legal Aid NSW, Submission 166, p. 4.

[170] Ms Eszenyi, Committee Hansard, 26 September 2005, p. 5. See also; Mr Harbord, RASSA, Committee Hansard, 26 September 2005, p. 25; Ms Birss, RASSA, Committee Hansard, 26 September 2005, p. 25; Mrs Le, Committee Hansard, 7 October 2005, pp 16-17.

[171] Ms Jockel, Law Council of Australia, Committee Hansard, 27 September 2005, p. 76.

[172] Associate Professor Kneebone, Castan Centre for Human Rights, Submission 71, p.2.

[173] Sanctuary under Review, p. 123 (citing Dr Rory Hudson Submission No. 16 to that inquiry at p. 77).

[174] Mr Malak, Chairperson, Federation of Ethnic Communities Councils of Australia, Committee Hansard, 29 September 2005, p. 16.

[175] Ms Jockel Law Council of Australia, Committee Hansard, 27 September 2005, p. 76.

[176] LIV, Submission 206, p. 6. See also Amanda Vanstone, ‘Ministerial Statement to Senate Estimates Committee’, Media Release, 25 May 2005. Amanda Vanstone, 'Palmer Implementation Plan and Comrie Report', Media Release, 6 October 2005.

[177] DIMA, Answer to Question on Notice, 5 December 2005, p. 28.

[178] DIMA, Answer to Question on Notice, 5 December 2005, p. 58.

[179] DIMA, Answer to Question on Notice, 5 December 2005, pp 28-30.

[180] See, for example, Migration Review Tribunal, Annual Report 2004‑2005, p. 14.

[181] See, for example, Law Council of Australia, Submission 233, pp 11-12, Refugee Advocacy Service of South Australia, Submission 51, pp 2-3; Legal Aid Commission of New South Wales, Submission 166, pp 13-18; Immigration Advice and Rights Centre Inc., Submission 194, pp 3-4 and South Brisbane Immigration & Community Legal Service Inc. Submission 200, pp 6-7.

[182] Senate Legal and Constitutional References Committee, Legal aid and access to justice, June 2004, Chapter 7.

[183] See, for example, Legal Aid New South Wales, Submission 166, p. 13.

[184] DIMA, Fact Sheet 63, Immigration Advice and Application Assistance Scheme, 20 November 2005.

[185] DIMA, Fact Sheet 63, Immigration Advice and Application Assistance Scheme, 20 November 2005.

[186] DIMA, Fact Sheet 63, Immigration Advice and Application Assistance Scheme, 20 November 2005.

[187] DIMA, Answer to Question on Notice, 5 December 2005, pp 54, 68.

[188] Senate Legal and Constitutional References Committee, Legal aid and access to justice, June 2004, Recommendations 41 and 42, p.143.

[189] Legal Aid NSW, Submission 166, p. 14.

[190] Legal Aid New South Wales, Submission 166, pp 28-29.

[191] See, for example, Legal Aid New South Wales, Submission 166, p. 15.

[192] Legal Aid New South Wales, Submission 166, p. 15.

[193] Legal Aid New South Wales, Submission 166, p. 15.

[194] Law Council of Australia, Submission 232, p.12.

[195] Mr Bill Gerogiannis, Committee Hansard, 28 September 2005, p. 66.

[196] Anyone who uses knowledge of migration procedures to offer advice or assistance to a person wishing to obtain a visa to enter or remain in Australia, or to a person nominating or sponsoring a visa applicant, for a fee or reward must register as an agent with the MARA. This includes lawyers and people who work for voluntary organisations. There are penalties ranging up to 10 years imprisonment for people who practise in Australia as unregistered agents. Exemptions to the registration requirement apply to some groups of people including close family members, sponsors and nominators who can provide immigration assistance as long as they don't receive a fee or reward. DIMA, Fact Sheet 100 Migration Agents Registration Authority 5 August 2005. See also http://www.mrt.gov.au/operations.html. Migration Review Tribunal, Annual Report 2004‑2005, p. 11.

[197] George Newhouse, 'Immigration Reform reaches a deadend', Sydney Morning Herald, 6 October 2005, p. 13. Mr Newhouse is a lawyer who worked on Ms Solon's legal team.

[198] Law Council of Australia, Submission 232, p. 12.

[199] See, for example, Ms Maria Jockel, Law Council of Australia Committee Hansard, 27 September 2005, p. 76.

[200] Submission 194, p. 4. Similar advantages were also expressed in other submissions. See, for example, Refugee Advocacy Service of South Australia, Submission 51; Legal Aid Commission of New South Wales, Submission 166, and South Brisbane Immigration & Community Legal Service, Submission 200.

[201] LCA, Submission 233, p. 12.

[202] SBICLS, Submission 200, p. 6. See also Immigration Advice and Rights Centre, Submission 194, p. 3.

[203] SBICLS, Submission 200, p. 6. See also Immigration Advice and Rights Centre, Submission 194, p. 3.

[204] Legal Aid New South Wales, Submission 166, p. 17.

[205] IARC, Submission 194, p. 4. The IARC also noted that additional funding would be required to meet the increase in demand for assistance by people released into the community on bridging visas following the recent amendment to section 195A of the Migration Act.

[206] Section 256 provides that 'where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention'. Migration Act 1958, section 256.

[207] LCA, Submission 232, p. 11.

[208] SBCILS, Submission 200, p. 6.

[209] RASSA, Submission 51, pp 2-3.

[210] Ms Birss, RASSA, Committee Hansard, 26 September 2005, p. 15.

[211] RASSA, Submission 51, pp 2-3.

[212] See for example, Ms Birss and Mr Harbord, Committee Hansard, 26 September 2005, pp 20‑21.

[213] Mr Harbord, RASSA, Committee Hansard, 26 September 2005, p. 20. See also, for example, NSW Legal Aid Commission, Submission 166, pp 25-26.

[214] The merit points system is described and discussed in Chapter 6 of this report.

[215] RASSA, Answer to Question on Notice, 28 October 2005, p. 2.

[216] Mr Harbord, RASSA, Committee Hansard, 26 September 2005, p. 19. See also Ms Birss, RASSA, Committee Hansard, 26 September 2005, p. 15.

[217] RASSA, Submission 51, pp 2-3.

[218] See, Mr Paul Boylan, Ms Jane Moore and Mr Jeremy Moore, Committee Hansard, 26 September 2005, pp 49-61. See also Woomera Lawyers Group, Submission 187 and Mr Paul Boylan, Submission 112.

[219] RASSA, Submission 51, p. 3.

[220] RASSA, Submission 51, pp 3-4.

[221] DIMA, Answer to Question on Notice, 5 December 2005, pp 20, 54, 57-58, 68.

[222] DIMA, Answer to Question on Notice, 5 December 2005, p 57.

[223] DIMA, Answer to Question on Notice, 5 December 2005, pp 58.

[224] DIMA, Answer to Question on Notice, 5 December 2005, pp 56-58.

[225] DIMA, Answer to Question on Notice, 5 December 2005, p. 58.

[226] LIV, Submission 206, p.17. It is noted that 1632 people were refused immigration clearance at Australian airports in 2004-2005, with 97.5% being removed within 72 hours, in most cases on the next available flight. DIMA, Annual Report 2004-2005, p. 109.

[227] LIV, Submission 206, p.18.

[228] SBICLS, Submission 200, p. 9.

[229] Mr Paul Boylan, Committee Hansard, 26 Sept 2005, p. 55.

[230] LIV, Submission 206, p.18.

[231] Senate Legal and Constitutional References Committee, A Sanctuary under Review, pp 115‑120. DIMA advised, for example, that results of interviews conducted at airports were referred to and considered by senior departmental officers to assess whether Australia’s international protection obligations were likely to be engaged.

[232] Senate Legal and Constitutional References Committee, A Sanctuary under Review, p. 119.

[233] DIMA, Answer to Question on Notice, 5 December 2005, p. 69.

[234] DIMA, Answer to Question on Notice, 11 October 2005, p. 11. DIMA advised that of the 1632 persons refused immigration clearance at Australian airports in 2004-05, there were 40 persons who raised claims or information which prima facie may have engaged Australia’s protection obligations. In 2002-03 and 2003-04 there were 21 and 23 out of 937 and 1632 respectively.

[235] See Migration Act 1958, Part 6.

[236] The MRT is authorised to review decisions relating to a wide range of visas: bridging, visitor, student, temporary business entry, permanent business entry; skilled; partner visas; and family visas. The type of decisions involved can include decisions: to refuse to grant visas, to cancel visas, not to revoke automatic cancellation of student visas; to refuse to approve or renew approvals of business sponsors; to refuse to approve a nominated position or nomination of a business activity; in relation to status as an approved professional development sponsor; to impose a security for compliance with visa conditions and to assess a score in relation to the points test in skilled visa applications. The MRT only has jurisdiction over 'offshore' visa refusal decisions in relation to visas where there is a requirement for an Australian sponsor or close relative (who is the applicant for review). Migration Review Tribunal, Annual Report 2004 -2005, pp 9, 16-17.

[237] Migration Review Tribunal, Annual Report 2004‑2005, pp 8-9, 14, 33.

[238] Migration Review Tribunal, Annual Report 2004 -2005, p.8.

[239] Migration Act 1958, section 353.

[240] Section 499 states that 'the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: the performance of those functions; or the exercise of those powers'. Migration Act 1958, section 499.

[241] The time limits vary from two working days for some immigration detention cases, through to seven working days for cancellation decisions and other immigration detention cases, 21 calendar days for other cases where the visa applicant is in Australia and 70 calendar days where the applicant is outside Australia. Migration Review Tribunal, Annual Report 2004‑2005, p. 10.

[242] The exception is where the application relates to a decision to refuse to grant or to cancel a bridging visa, as a result of which the applicant is in immigration detention

[243] The summary is drawn from Burns, The Immigration Kit, pp 747-763.

[244] Migration Review Tribunal, Annual Report 2004‑2005, p. 10.

[245] See http://www.mrt.gov.au/operations.html.

[246] About 30% of the 8308 cases finalised by the MRT in 2004‑2005 involved applicants who were unrepresented. Migration Review Tribunal, Annual Report 2004‑2005, p. 11. See also Migration Review Tribunal, Annual Report 2003‑2004, p. 13.

[247] See http://www.mrt.gov.au/operations.html.

[248] See Chapter 2.

[249] Migration Review Tribunal, Annual Report 2004‑2005, p. 11.

[250] Migration Review Tribunal, Annual Report 2004‑2005, p. 15.

[251] Migration Review Tribunal, Annual Report 2004‑2005, p. 21.

[252] Migration Review Tribunal, Annual Report 2004‑2005, p. 21.

[253] Timelines is one performance indicator used by the MRT to measure its performance in undertaking the task required of it by Government. The other performance indicators are: the number of cases finalised; the levels and outcomes of appeals against MRT decisions; and the number of complaints received by the MRT about its Members and services. Migration Review Tribunal, Annual Report 2004‑2005, p. 14.

[254] The MRT's funding agreement with the Department of Finance and Administration is based on the number of cases to be finalised in a year and an assessment of fixed and variable costs. Migration Review Tribunal, Annual Report 2004‑2005, pp 14, 22-24.

[255] Migration Review Tribunal, Annual Report 2004‑2005, p. 11.

[256] See http://www.mrt.gov.au/faqs.html.

[257] Migration Review Tribunal, Annual Report 2004‑2005, p. 23. The MRT noted in its annual report that, in most cases not finalised within the prescribed seven working days, the applicant had requested an extension of time.

[258] Migration Review Tribunal, Annual Report 2004‑2005, p. 24.

[259] The Tribunal was established under Part 7 of the Migration Act 1958. It replaced the Refugee Status Review Committee (RSRC), which unlike the RRT, lacked a statutory basis and could only make nonbinding recommendations to the then Minister for Immigration and Ethnic Affairs. The RSRC comprised representatives from the then Department of Immigration, Local Government and Ethnic Affairs, the Attorney-General’s Department, the Department of Foreign Affairs and Trade and the community. Refugee Review Tribunal Fact Sheet R8, The Refugee Review Tribunal – An Overview, 7 April 2005.

[260] Refugee Review Tribunal, Annual Report 2004-2005, pp 8, 31.

[261] See Refugee Review Tribunal Fact Sheet R9, The Members of the Refugee Review Tribunal, available at http://www.rrt.gov.au/factsheets/R9.pdf.

[262] Refugee Review Tribunal, Annual Report 2004-2005, p. 43.

[263] The convention was amended by the 1967 UN Protocol Relating to the Status of Refugees.

[264] DIMIA, Submission 205, p. 27.

[265] Refugee Review Tribunal, Annual Report 2004-2005, p. 8.

[266] Refugee Review Tribunal, Annual Report 2004-2005, p. 8.

[267] Germov and Motta, Refugee Law in Australia, p. 75.

[268] See http://www.rrt.gov.au/applyrev.htm#process.

[269] Burns and Sudrishti, The Immigration Kit, p. 767. See pp 766 to 769 for an overview of the RRT merits review process.

[270] Migration Regulations 1994, Regs 4.35-4.35B pursuant to s. 424B(2),

[271] Germov and Motta, Refugee Law in Australia, p. 76.

[272] Migration Act 1958, section 426.

[273] Migration Act 1958, sections 429 and 439. See DIMIA, Answer to Question on Notice, 25 October 2005, p. 34.

[274] Migration Act 1958, section 429. The rationale for closing the RRT's proceedings to the public is the nature of protection visa claims. Refugee Review Tribunal, Annual Report 2004-2005, p. 9.

[275] See, for example, Germov, Refugee Law in Australia, p. 79.

[276] Migration Act 1958, s.429A

[277] Germov, Refugee Law in Australia, p. 80.

[278] Migration Act 1958, s430

[279] Refugee Review Tribunal, Annual Report 2004‑2005, p. 9.

[280] Refugee Review Tribunal, Annual Report 2004‑2005, p. 10. This compares to 23% of the 5810 cases finalised by the RRT in 2003-2004 and 20% of the 5077 cases finalised in 2002-2003. See Refugee Review Tribunal, Annual Report 2003-2004, p. 12 and Refugee Review Tribunal, Annual Report 2002-2003, p. 18.

[281] See http://www.rrt.gov.au/applyrev.htm#process.

[282] Refugee Review Tribunal, Annual Report 2004‑2005, p 15.

[283] Refugee Review Tribunal, Annual Report 2004‑2005, p. 15.

[284] Refugee Review Tribunal, Annual Report 2004‑2005, pp. 16-17.

[285] Refugee Review Tribunal, Annual Report 2004‑2005, p. 15.

[286] Refugee Review Tribunal, Annual Report 2004‑2005, p. 17.

[287] Refugee Review Tribunal, Annual Report 2004‑2005, p. 15.

[288] See http://www.rrt.gov.au/stats/lodgements%20and%20finalisations.pdf and the table entitled RRT: Lodgements and finalisations since 1993..

[289] Refugee Review Tribunal, Annual Report 2004‑2005, p. 19.

[290] Timeliness is one performance indicator used by the RRT to measure its performance in meeting the outcome required of it by Government, namely, 'the independent merits review of decisions concerning applicants for refugee status'. The RRT's other performance indicators are: the number of cases finalised; the levels and outcomes of appeals against RRT decisions; and the number of complaints received by the RRT about its Members and services. Refugee Review Tribunal, Annual Report 2004‑2005, p. 14.

[291] Refugee Review Tribunal, Annual Report 2004‑2005, pp 14, 21-22. The RRT's funding agreement with the Department of Finance and Administration is based on the number of cases to be finalised in a year and an assessment of fixed and variable costs.

[292] Refugee Review Tribunal, Annual Report 2004‑2005, p. 2. These measures have included the transfer of Member and staff resources to the RRT caseload as well as the introduction of a new Principal Member Direction (3/2005 – Efficient Conduct of RRT reviews) which provides for a framework for processing cases within 90 days by promoting greater use of electronic communication, early lodgement of submissions setting out applicants’ claims together with any available evidence, early consideration of cases by Members, and by seeking collaboration from migration agents. DIMIA, Answer to Question on Notice, 25 October 2005, p. 44.

[293] Refugee Review Tribunal, Annual Report 2004‑2005, pp 2, 15.

[294] Refugee Review Tribunal, Annual Report 2004‑2005, p. 22.

[295] Refugee Review Tribunal, Annual Report 2004‑2005, p. 22.

[296] Article 1F of the Refugees Convention concerns the commission of international (crimes such as war crimes), serious non-political crimes and acts contrary to the purposes and principles of the United Nations. Article 32 concerns the expulsion of refugees on the ground of national security or public order. Article 33(2) concerns refugees considered to be a danger to security or the community. ANAO, Report No. 56, 2003-2004, Management of the Processing of Asylum Seekers, pp 25-26.

[297] DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[298] DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[299] Administrative Appeals Tribunal, Annual Report 2004-2005, p.128.

[300] See, generally, Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, Chapter 5.

[301] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, Chapter 5, p. 146.

[302] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, pp 168-9.

[303] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, pp 151, 172-3, 174.

[304] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, p. 174.

[305] See Appendix 6.

[306] Migration Regulations 1994, reg. 4.10.

[307] Migration Regulations 1994, reg. 4.31.

[308] See, for example, Law Society of South Australia, Submission 110, p. 5, and South Brisbane Immigration & Community Legal Service, Submission 200, p. 9.

[309] Submission 110, pp 5-6. Commentators have noted that, if notification was not received due to an error by DIMIA, then an applicant may be able to argue that it was not a valid notification and the time limit has not commenced. Burns and Sudritshti, The Immigration Kit pp 764-765.

[310] SBICLS, Submission 200, p. 9. See footnote 135 below.

[311] LIV, Submission 206, p. 24. See also Mrs Le, Committee Hansard, 7 October 2005, p. 22; Mr Harbord, RASSA, Committee Hansard, 26 September 2005, p. 19 and Ms Birss, RASSA, Committee Hansard, 26 September 2005, p. 19.

[312] Law Society of South Australia, Submission 110, p. 5.

[313] LIV, Submission 206, p. 24.

[314] If DIMIA refuses to release a file or part of a file, there is a right of internal review through the Department. If the information is not released on internal review, there is the possibility of further review by applying to the Administrative Appeals Tribunal.

[315] The Inquiry found that 'DIMIA’s attitude to the Commonwealth Privacy Act 1988 is unduly cautious and has operated to limit the range and effectiveness of inquiries ...'. M. Palmer, Inquiry into the Cornelia Rau Matter, Main Finding 34, p. xiv.

[316] DIMIA, Answer to Question on Notice, 5 December 2005, pp 24-25. From 2002 to 2004, the number of FOI requests increased by 46% to 15,446. DIMIA received over 11,600 requests in 2004-05. DIMIA, Answer to Question on Notice, 11 October 2005, p. 4

[317] LIV, Submission 206, p. 25.

[318] LIV, Submission 206, p. 18.

[319] LIV, Submission 206, pp 18-19.

[320] RASSA, Submission 51, p. 5.

[321] RASSA, Submission 51, p. 4.

[322] ICJ, Submission 115, pp 4-5.

[323] Committee Hansard, 26 September 2005, p. 12.

[324] Legal aid and access to justice Senate Legal and Constitutional References Committee Report, June 2004, p. xxix

[325] RASSA, Submission 51, p. 4.

[326] AJA, Submission 184, pp 7-8.

[327] Justices Einfeld and North in Sellian v MIMA[1999] FCA 615, [3]-[4], cited in A Just Australia Submission 184, p. 8

[328] RASSA, Submission 51, pp 4-5.

[329] See, for example, ASRC, Submission 214, pp 16-19, and Mr Guy Coffey, Submission 81, p. 4.

[330] Mr McNally Committee Hansard , 28 September 2005, p. 40.

[331] Mr McNally Committee Hansard , 28 September 2005, p. 44.

[332] Mr McNally, Committee Hansard , 28 September 2005, p. 40.

[333] ICJ, Submission 115, p. 3.

[334] ICJ, Submission 115, p. 3

[335] ICJ, Submission 115, p. 3.

[336] See ASRC, Submission 214, pp 16-18.

[337] ASRC, Submission 214, pp 16-18.

[338] ASRC, Submission 214 , pp. 16-18

[339] Recommended summit participants include DIMIA case officers, Tribunal members, practitioners in the area, Federal Court judges, academics, medical experts, psychologists, counsellors from torture/trauma counselling services, asylum seekers and refugees, and international experts in refugee law. ASRC, Submission 214, pp 16‑18.

[340] A Just Australia, Submission 184, p. 9.

[341] Senate Legal and Constitutional References Committee, Sanctuary under Review, p. 174.

[342] Refugee Review Tribunal, Annual Report 2004-2005, p. 22.

[343] Germov & Motta, Refugee Law in Australia, p. 812.

[344] A Just Australia, Submission 184, p. 7. Applications for judicial review were lodged in respect of 39.9% of RRT cases finalised in 2004-2005 (see table 3.5 above).

[345] AJA, Submission 184, pp 7-8.

[346] Refugee Advocacy Service of South Australia Inc., Submission 51, p. 4; Ms M E Flenley, Submission 91, p. 2; Human Rights Council of Australia and Australians for Just Refugee Programs Inc., Submission 185, p. 5. See also comments of Mr McNally of the ICJ at Committee Hansard , 28 September 2005, p. 40.

[347] Joint submission by the Human Rights Council of Australia and A Just Australia, Submission 185, p. 5.

[348] ICJ, Submission 115, p. 2.

[349] AJA, Submission 184, p. 8.

[350] Committee Hansard , 27 September 2005, pp 47 and 52.

[351] RASSA, Submission 51, p. 4.

[352] AJA, Submission 184, p. 9.

[353] UJA and Hotham Mission, Submission 190, p. 9. See also the Law Society of South Australia, Submission 110, p 112.

[354] RASSA, Submission 51, p. 5.

[355] Germov, Refugee Law in Australia, p. 810.

[356] Mr McNally, Committee Hansard, 28 September 2005, p. 40.

[357] ICJ, Submission 115, p. 4.

[358] Human Rights Council of Australia and Australians for Just Refugee Programs Inc., Submission 185, p. 5; Asylum Seekers Resource Centre, Submission 214, pp 16-19. See also comments of Mr Burnside QC in Committee Hansard , 27 September 2005, p. 53.

[359] Mr Gerogiannis, Committee Hansard , 28 September 2005, p. 69.

[360] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, p. 169.

[361] Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000, Recommendation 5.4, pp 139-141.

[362] In response to concerns over Member's lack of legal qualifications, the RRT noted that analysis of Court remittals to the RRT did not suggest that legal error occur noticeably more or less on the part of Members with legal qualifications than those without such qualifications.

[363] See generally DIMIA, Answer to Question on Notice, 25 October 2005, pp 36-50.

[364] DIMIA, Answer to Question on Notice, 25 October 2005, p. 41.

[365] See Appellant WABZ v MIMA (2004) 204 ALR 687

[366] DIMIA, Answer to Question on Notice, 25 October 2005, p 43.

[367] DIMIA, Answer to Question on Notice, 25 October 2005, p 44.

[368] The percentage of cases over 9 months old since lodgement has been dramatically reduced from 35% of cases at the end of 2002-03 to 1% of cases at the end of 2004-05. The percentage of cases over 12 months old has been reduced from 16% in 2002-03 to less than 1% in 2004-05 DIMIA, Answer to Question on Notice, 25 October 2005, p 44.

[369] The Federal Magistrates Court has concurrent jurisdiction with the Federal Court. The choice of forum is left to the person making the application. The key difference between the two courts is that the Federal Magistrates Court is intended to be a relatively informal forum dealing with more routine migration matters more quickly. See DIMIA, Judicial Review, 11 March 2004, at http://www.immi.gov.au/legislation/judicial_review.htm.

[370] Sanctuary under Review, pp 181-202; Germov, Refugee Law in Australia, p. 573; DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005; DIMIA , Judicial Review, 11 March 2004.

[371] Migration Act, Parts 8, 8A and 8B. See also Sanctuary under Review, pp 181-202; Germov, Refugee Law in Australia, p. 573; DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005; DIMIA , Judicial Review, 11 March 2004.

[372] DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[373] DIMIA , Judicial Review, 11 March 2004.

[374] There are some exceptions to this prohibition, including consolidation of proceedings by a court in certain circumstances. See DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[375] DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[376] Provisions of the Migration Litigation Reform Act 2005 (Cth) will, on commencement, impose uniform time limits on applications for judicial review of migration decisions in the Federal Magistrates Court, the Federal Court and the High Court. These are found in the proposed new sections 477, 477A and 486A of the Act respectively. The time limits will be 28 days from actual (as opposed to deemed) notification of a decision. The courts will have a discretion to extend this time limit by 56 days to a maximum of 84 days provided the application is made within the 84 days and the court is satisfied that it is in the interests of the administration of justice to extend the 28 day period.

[377] DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[378] For the year ending 30 June 1996, the litigation expenditure for DIMIA was less than $6.5 million. By 2004-2005, the cost had risen to in excess of $42 million. DIMIA Fact Sheet 9, Litigation Involving Migration Decisions, 25 October 2005.

[379] See, for example, Bills Digest No. 118 2003-2004, Migration Amendment (Judicial Review) Bill 2004 (Cth), Parliamentary Library, 6 May 2004.

[380] Sanctuary under Review, p. 200.

[381] Other committee recommendations were for comparative databases and studies on how other countries had incorporated into their domestic law international legal obligations requiring access to courts and tribunals, and judicial oversight of the refugee determination process.

[382] See Appendix 6.

[383] ICJ, Submission 115, pp 3 - 4.

[384] UJA and ASPHM, Submission 190, p. 9.

[385] ICJ, Submission 115, p. 4.

[386] Committee Hansard , 27 September 2005, pp 47 and 52.

[387] The Administrative Review Council: Better Decisions: Review of Commonwealth Merits Review Tribunals, Canberra 1995, p. 70.

[388] Refugee Review Tribunal, Annual Report 2004‑2005, p 26.

[389] ANAO, 'Work Program'', 2005-2006, Canberra, July 2005, pp. 73-78.

[390] The following summary of the Minister's discretionary powers under the Migration Act is drawn from DIMIA, Submission 205, pp. 13-15. See also the report of the Select Committee on Ministerial Discretion, Chapter 2.

[391] The Migration Act 1958 prevents a person refused a protection visa from lodging a valid fresh protection visa application unless the Minister uses a personal non-compellable power to allow this in the public interest under section 48B of the Act.

[392] See Parliamentary Library, Bills Digest no. 190, 2004-05, Migration Amendment (Detention Arrangements) Bill 2005, (Australian Parliament 2005); See also The Hon John Howard MP, Prime Minister, Media Release, Immigration Detention, (17 June 2005).

[393] See Migration Series Instruction 387, paragraph 5.2.1

[394] Migration Series Instruction 387, paragraph 5.2.1; Burns, The Immigration Kit, pp 782 -3; DIMIA Submission 205, pp 13-14.

[395] Burns, The Immigration Kit, pp 782-3. Migration Series Instruction 387, paragraph 5.5.6.

[396] Migration Series Instruction 387, paragraphs 3.3.4 and 3.3.5

[397] DIMIA, Answer to Questions on Notice, 11 November 2005, p. 1; DIMIA, Answer to Question on Notice, 5 December 2005, p. 71.

[398] The prerequisite of a review authority decision means that the Minister also does not have the power to substitute a more favourable decision in respect of a ‘no jurisdiction’ decision (such as a finding that the Department’s decision is not ‘MRT-reviewable’) or an 'invalid application' decision (for example, where an application is not made to the review authority within the required timeframe).

[399] Migration Series Instruction 387, paragraphs 3.1.1 and 3.1.2. The Minister's power to substitute a more favourable decision for that of a review authority is also only available if the relevant review authority's decision was made under the appropriate section of the Act. For example, a decision under section 349 (which provides the MRT the power to make decisions) is necessary to trigger the power in section 351 of the Migration Act.

[400] Migration Series Instruction 387, paragraphs 5.5.9, 5.5.1.

[401] The schedule must contain the following types of information: a summary of the request and the reasons for the request being made; the relevant history the subject of the request has with the Department; details on who made the representation; views of review authority members or the courts; and an assessment against the Guidelines (including international obligations). Migration Series Instruction 387, paragraphs, 5.6.1.

[402] Migration Series Instruction 387, paragraph 6.5.

[403] Migration Series Instruction 387, paragraph 5.1.1.

[404] Migration Series Instruction 387, paragraph 9.3.

[405] Migration Series Instruction 387, paragraph 81.

[406] DIMIA, Answer to Question on Notice, 11 November 2005, p. 2.

[407] DIMIA, Answer to Question on Notice, 11 November 2005, p. 6.

[408] DIMIA, Annual Report 2004-2005, p. 95.

[409] Select Committee on Ministerial Discretion in Migration Matters (March 2004).

[410] Senate Legal and Constitutional References Committee, A Sanctuary under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes (June 2000), p. 267.

[411] Senate Legal and Constitutional Affairs Committee, A Sanctuary under Review, Recommendations 8.1 to 8.4 and 8.6.

[412] Government response, 8 February 2001, pp 12-13.

[413] The report can be found at http://www.aph.gov.au/Senate/committee/minmig_ctte/report/index.htm

[414] Report of the Senate Select Committee on Migration Matters, March 2004, p.xix

[415] Report of the Senate Select Committee on Migration Matters, p.xiv

[416] Report of the Senate Select Committee on Migration Matters, p.xix

[417] Report of the Senate Select Committee on Migration Matters, p.119

[418] Report of the Senate Select Committee on Migration Matters, p.xii

[419] Report of the Senate Select Committee on Migration Matters, p.62

[420] As noted above, cases may be brought to DIMIA's attention by a referral from the RRT and the MRT. Members of the review tribunals may indicate in their decisions that a particular case raises humanitarian issues.

[421] Report of the Senate Select Committee on Migration Matters, p.67

[422] Report of the Senate Select Committee on Migration Matters, p.71

[423] This was originally recommended by the Commonwealth Ombudsman.

[424] Report of the Senate Select Committee on Migration Matters, pp 73-74

[425] Report of the Senate Select Committee on Migration Matters, p.73

[426] Report of the Senate Select Committee on Migration Matters, p.185

[427] Report of the Senate Select Committee on Migration Matters, p.186

[428] Report of the Senate Select Committee on Migration Matters, p.80

[429] Report of the Senate Select Committee on Migration Matters, p.186

[430] DIMIA answers to Questions on Notice, 11 November 2005, pp. 53-54. See also Erka Fellor Director of International Protection, UNHCR, The responsibility to protect – closing the gaps in the international protection regime and the new EXCOM Conclusion on Complementary Forms of Protection, Statement to the 'Moving On: Forced Migration and Human Rights Conference, Sydney, 22 November 2005.

[431] A European Commission Directive adopted in 2004 established a framework for an international protection regime based on existing international refugee and human rights instruments obligations, which emphasises the primacy of refugee status. It set minimum standards, with some flexibility for States to give lesser benefits to holders of complementary or subsidiary protection. Member States must implement national legislation by October 2006. Discussion is also underway within UNHCR on the general principles on which complementary protection should be based. UNCHR's Executive Committee, which is comprised of over 50 member states including Australia, recently adopted the Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection, which, among other things, calls on States to implement procedures to care for those in need of protection, but who fall outside the Refugee Convention. See Refugee Council of Australia, Answer to Question on Notice, 27 October 2005.

[432] Examples include the Temporary Safe Haven visas used in 1999 to provide temporary residence to some 4000 Kosovars brought to Australia for temporary protection. An equivalent ‘Safe Haven Visa’ was used to provide temporary protection to some 1 900 East Timorese evacuated by Australia from Dili in 1999. Similarly, the offshore humanitarian visa classes provide protection to persons on grounds broader than those set out under the Refugees Convention. There have also been occasions where persons unlawfully in Australia and in humanitarian need were granted visas under new visa categories. See UNHCR, Complementary Protection, Discussion Paper No. 2, 2005. See also DIMIA, Answer to Question on Notice, 11 November 2005, Attachment.

[433] The Minister is only able to substitute a more favourable decision of the RRT once the RRT has reviewed a claim for consideration of refugee status under the Refugee Convention. That means that the Minister is unable to use the power until the relevant review authority has made a decision in a particular case. Similarly, where a decision is quashed or set aside by a Court and the matter is remitted to the decision maker to be decided again, the Minister is unable to use the public interest power as there is no longer a review decision in respect of which he can substitute a decision.

[434] A Sanctuary Under Review, pp. 61-64.

[435] A Sanctuary Under Review, p 63.

[436] A Sanctuary Under Review, p. 64.

[437] Select Committee on Ministerial Discretion, p. 137.

[438] A Sanctuary Under Review, p. 257.

[439] A Sanctuary Under Review, Recommendation 2.2.

[440] See Appendix 3.

[441] Select Committee on Ministerial Discretion, p.134

[442] Select Committee on Ministerial Discretion, p.135

[443] Select Committee on Ministerial Discretion, p.147

[444] Select Committee on Ministerial Discretion, p.148

[445] Select Committee on Ministerial Discretion, p.145

[446] Select Committee on Ministerial Discretion, p.148

[447] LSSA, Submission 110, pp. 11-15; NCCA, Submission 179, pp. 4-15; Franciscan Missionaries of Mary, Submission 180, p. 3; UJA and ASPHM, Submission 190, pp. 10-11; LIV, Submission 206, p. 20. Witnesses and submitters advised that it is too early to assess whether the additional intervention powers granted to the Minister by the June 2005 changes to the Migration Act were capable of being used to remedy this situation. See, for example, Refugee Council of Australia, Submission 148, p. 3.

[448] A Sanctuary under Review, p. 267

[449] LSSA, Submission 110, p. 12.

[450] LSSA, Submission 110, p. 11.

[451] LSSA, Submission 110, pp. 12-13.

[452] LSSA, Submission 110, pp. 12-13.

[453] NCCA, Submission 179, p. 9.

[454] Committee Hansard, 26 September 2005, p. 4.

[455] Committee Hansard, 29 September 2005, p. 27.

[456] LSSA, Submission 110, p. 14.

[457] UJA and ASPHM, Submission 190, p. 12.

[458] Committee Hansard, 29 September 2005, p. 32.

[459] Committee Hansard, 29 September 2005, p. 33.

[460] Committee Hansard, 29 September 2005, p. 33

[461] Migration Institute of Australia, Submission 144, p. 6.

[462] Migration Institute of Australia, Submission 144, p. 6.

[463] Migration Institute of Australia, Submission 144, p. 6.

[464] Committee Hansard, 28 September 2005, p. 28.

[465] NCCA, Submission 179, p. 9.

[466] James Thompson, National Council of Churches In Australia, Why Australia needs a complementary protection visa, Perspective, ABC Radio National, 3 September 2004.

[467] RASSA answer to Questions on Notice received 28 October 2005, p. 2.

[468] UJA and ASPHM, Submission 190, p. 12.

[469] LSSA, Submission 110, pp 11-13; NCCA, Submission 179, pp 4-15; UJA and ASPHM, Submission 190, p. 13; LIV, Submission 206, p. 20.

[470] LSSA, Submission 110, p. 13.

[471] LSSA, Submission 110, pp 12-13.

[472] Committee Hansard, 29 September 2005, p. 27.

[473] Refugee Council of Australia, Complementary Protection – A New Model for Australia, in UNHCR, Complementary Protection, Discussion Paper No. 2, 2005, p. 9.

[474] Refugee Council of Australia, Submission 148, Attachment A, p. 12.

[475] Refugee Council of Australia, Submission 148, Attachment A, p. 17.

[476] Refugee Council of Australia, Submission 148, Attachment A, pp 19-20.

[477] It is understood that, for example, Canada, the United States and all the countries in the European Union have introduced complementary protection measures whereby claims may be brought on non-Refugee Convention grounds.

[478] Australia's Offshore Humanitarian Program provides for the grant of 'refugee' visas and special 'humanitarian' visas.

[479] The Refugee Council of Australia referred to a case study of a family with six members granted a protection visa after Ministerial intervention. They had been in detention for four years. The cost of detention for the family for four years would have been in the order of $1.2million (based on $140 per person per day). Had it been possible to make a decision on their need for protection at the primary determination stage, they may have been released within six months of arriving. Detention for 6 months would have cost about $150,000, a saving to the taxpayer of over $1million. This does not include additional savings in determination and health costs. Refugee Council of Australia, Submission 148, Attachment A, p. 13.

[480] Refugee Council of Australia, Submission 148, Attachment A, pp 18-19. See also Refugee Council for Australia, Complementary Protection – A New Model for Australia, pp 11‑12.

[481] LSSA, Submission 110, p. 14. See also comments of Ms Eszenyi of the LSSA, Committee Hansard, 26 September 2005, p. 4. Ms Thea Birss of the RASSA advised the Committee that they supported the recommendation of the LSSA for the creation of a complementary protection visa: Committee Hansard, 26 September 2005, p. 14.

[482] Reverend Poulos, Committee Hansard, 29 September 2005, p. 31.

[483] LSSA, Submission 110, p.15.

[484] Refugee Council of Australia, Submission 148, Attachment A, p. 13.

[485] DIMIA, 'Complementary Protection and Australian Practice', in UNHCR, Complementary Protection, Discussion Paper No. 2, 2005, p. 8.

[486] DIMIA answer to Questions on Notice, 11 November 2005, p. 54.

[487] DIMIA answer to Questions on Notice, 11 November 2005, p. 54.

[488] DIMIA, 'Complementary Protection and Australian Practice', in UNHCR, Complementary Protection, Discussion Paper No. 2, 2005, p. 8.

[489] DIMIA answer to Questions on Notice, 5 December 2005, p. 72.

[490] DIMIA answer to Questions on Notice, 5 December 2005, p. 72.

[491] The recommendations are listed in Appendix 4, while the full report can be found at http://www.aph.gov.au/Senate/committee/minmig_ctte/report/index.htm

[492] These recommendations are the same as those made on these issues by the Senate Select Committee on Ministerial Discretion in Migration Matters report of March 2004, pp. xxi - xxv.

[493] Migration Act 1958, s. 189.

[494] Migration Act 1958, s. 196, s.198 or s.199.

[495] For example, Assoc. Professor Susan Kneebone, Castan Centre for Human Rights Law, Submission 71, p.2.

[496] Millbank A., The Detention of Boat People, Current Issues Brief No.8 2000-01, Department of Parliamentary Library, 27 February 2001, p.2.

[497] Migration Act 1958, s. 177; the classification also applied to all non-citizen children born in Australia whose mother was a 'designated person'.

[498] The Hon Gerry Hand, MP, Migration Amendment Bill 1992, Second Reading Speech, House of Representatives Hansard, 5 May 1992, p.2370.

[499] Petro Georgiou MP, Second Reading Speech, Migration Amendment (Detention Arrangements) Bill 2005, House of Representatives Hansard, 21 June, 2005, p.63.

[500] See JSCM, Asylum, Border Control and Detention, February 1994, p.32; Evidence to that inquiry indicated that as at 27 January 1994 of the 216 unauthorised boat arrivals held in detention 84 persons had been detained for less that 6 months; 1 for 8 months; 31 for 12 to 18 months; 6 for 18 to 24 months; 26 for 30 to 36 months, 2 for 36 to 42 months and 63 for 42 to 48 months.

[501] JSCM Asylum, Border Control and Detention, February 1994, p.13.

[502] DIEA evidence at that time revealed that 57 persons who had arrived by boat had escaped from detention between 1991 and October 1993. 25 unauthorised boat arrivals escaped in 1991 (7 of whom later returned voluntarily); 22 escaped in 1992 (6 were captured within a few hours of escape and nine returned voluntarily); 10 escaped in 1993 (three returned voluntarily). Of the individuals who were allowed to reside in the community while their refugee status applications were being determined, out of a group of 8,000 individuals who had been refused refugee status, some 2,171 persons (27%) remained unlawfully on Australian territory; see JSCM Asylum, Border Control and Detention, February 1994, p.31.

[503] JSCM Asylum, Border Control and Detention, February 1994, p.xiv.

[504] The Migration Reform Act 1992 commenced operation on 1 September 1994 under then Immigration Minister, Senator the Hon. Nick Bolkus.

[505] See JSCM, Asylum, Border Control and Detention, February 1994, p.86 for detailed discussion of the Migration Reform Act 1992.

[506] The relevant provisions, sections 189 and 196 commenced on 1 September 1994; see Hancock N., Refugee Law – Recent Legislative Developments, Current Issues Brief No.5 2001-02, 18 September 2001 p.6.

[507] Millbank A. and Phillips J., The detention and removal of asylum seekers, E-Brief, Department of Parliamentary Library, 5 July 2005, p.2.

[508] See for example, http://www.immi.gov.au/facts/82detention.htm

[509] In August 2001, the MV Tampa, a Norwegian container ship carrying 433 Afghan asylum seekers rescued from an Indonesian fishing vessel was refused permission to enter Australian waters or land the asylum seekers on Australian soil. See Chapter 1 – Border protection: A new regime, Report of the Senate Select Committee on Certain Maritime Incident, 23 October 2002, p.p.1-8, available at http://www.aph.gov.au/senate/committee/maritime_incident_ctte/report/c01.htm.

[510] Since 2001 unauthorised arrivals on Christmas Island, Ashmore and Cartier Islands, the Cocos (Keeling) Islands and other prescribed places have been prevented from making a valid visa application unless the Minister determines that it is in the public interest to do so.

[511] Joint Press Release, Attorney General The Hon Philip Ruddock and Minister for Justice and Customs, Senator The Hon Christopher Ellison, Strengthening our Borders, E 140/04, 27 September 2004.

[512] See Prince P., The detention of Cornelia Rau: legal issues, Research Brief, Department of Parliamentary Services, 31 March 2005, no.14, 2005-05.

[513] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, 6 July 2005,p. xi.

[514] The Member for Kooyong, Mr Petro Georgiou's, undertook in May 2005 to introduce private members Bills, which would have effectively ended indefinite detention of asylum seekers; limited detention to 90 days for new asylum seekers, with access to judicial review; families with children would not have been detained; and all long term detainees of 12 months or longer would have been released into the community. The Migration Amendment (Act of Compassion) Bill 2005, and Migration Amendment (Mandatory Detention) Bill 2005 were introduced into the Senate on 16 June 2005 by Greens Senator Kerry Nettle: See Millbank A. and Phillips J., The detention and removal of asylum seekers, E-Brief, Department of Parliamentary Library, 5 July 2005, p.1.

[515] http://www.minister.immi.gov.au/media_releases/media05/v05046.htm.

[516] Migration Amendment Regulations 2005 (No.2) (SLI No. 76 of 2005).

[517] Second Reading Speech, House of Representatives Hansard, 21 June 2005, p.2; see also Millbank A. and Phillips J., The detention and removal of asylum seekers, E-Brief, Department of Parliamentary Library, 5 July 2005, p.1.

[518] Second Reading Speech, House of Representatives Hansard, 21 June 2005, p.3.

[519] HREOC, Submission 199, p. 4.

[520] HREOC, Submission 199, p. 5.

[521] See e.g. Amuur v France (1992) 22 EHRR 533 referred to in HREOC Submission 199, p.5.

[522] Amnesty International Australia, Submission 191 p.5

[523] Commonwealth Ombudsman, Information Bulletin 6, 14 December 2005; section 486O of the Migration Act 1958 requires the Commonwealth Ombudsman, upon receipt of a report from the DIMIA, to provide the Minister with an assessment of the appropriateness of the arrangements for the detention of a person who has been in detention for two years or more.

[524] Commonwealth Ombudsman, Information Bulletin 6, 14 December 2005.

[525] Commonwealth Ombudsman, Information Bulletin 6, 14 December 2005, p.2.

[526] Covering Statement by the Commonwealth Ombudsman to the Minister for Immigration and Multicultural and Indigenous Affairs Concerning Reports under s.486O of the Migration Act 1958, 12 October 2005 in the Commonwealth Ombudsman, Information Bulletin 6, 14 December 2005

[527] Professor William Maley, Director Asia-Pacific College of Diplomacy, ANU, Detention: Government's policy has been built on a myth, Australian Policy Online, 15 June 2005, p.2 available at http://www.apo.org.au.

[528] Asylum Levels and Trends in Industrialised Countries, 2004: Overview of Asylum Applications Lodged in Europe and Non-European Industrialised Countries in 2004, Population Data Unit, UNHCR, Geneva, 1 March 2005.

[529] The EU recorded 19 per cent fewer applications; North America 26 per cent fewer and Australia and New Zealand registered 28 per cent fewer asylum requests in 2004 than 2003.

[530] Asylum Levels and Trends in Industrialised Countries, 2004: Overview of Asylum Applications Lodged in Europe and Non-European Industrialised Countries in 2004, Population Data Unit, UNHCR, Geneva, 1 March 2005, p.3.

[531] The Department's 2004-05 annual report records a small decline from 0.07 per cent in 2003-4 to 0.06 per cent in 2005-05.

[532] In June 2005 it was reported to the Parliament that 300 people, including children, had been in immigration detention for over one year and about 80 of them had been in detention for four years or more; Mr Georgiou MP, Migration Amendment (Detention Arrangements) Bill 2005, Second Reading Speech, House Hansard, p.63.

[533] Response to question on notice 7 October 2005

[534] Few Detainees Prove Immigration Policies Working Well, Media Release, Senator Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs, 26 December 2005, available at http://www.minister.immi.giv.au/media_releases/media-5/v05160.htm.

[535] Few Detainees Prove Immigration Policies Working Well, Media Release, Senator Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs, 26 December 2005, available at http://www.minister.immi.giv.au/media_releases/media-5/v05160.htm.

[536] Senator Amanda Vanstone, Minister for Immigration and Multicultural and Indigenous Affairs Few Detainees Prove Immigration Policies Working Well, Media Release, 26 December 2005, available at http://www.minister.immi.giv.au/media_releases/media-5/v05160.htm.

[537] See for example, Mr Wall de Gallo, Submission 6, p.1; Mr D. Bennett, Submission 7, p.1; Ms L. Nasir, Submission 9, p.1.

[538] The committee notes that amendments to the Migration 1958 on 30 November 2005 now enable the Ombudsman to contact an immigration detainee where that person has not made a complaint to the Ombudsman.

[539] Migration Legislation Amendment (Immigration Detainees) Act 2001.

[540] Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001.

[541] Migration Amendment (Duration of Detention) Act 2003; see also Millbank A. and Phillips J., The detention and removal of asylum seekers, E-Brief, Department of Parliamentary Library, 5 July 2005, p.2.

[542] See Chapter 6 for discussion on prison like conditions and practices.

[543] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, 6 July 2005, p. xi.

[544] Phillips J., Lormier C., Children in Detention, E Brief, Department of Parliamentary Library, 23 November 2005, p.4.

[545] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, 6 July 2005, p. 58.

[546] Committee Hansard, 27 September 2005, p. 44.

[547] Committee Hansard, 27 September 2005, p. 44.

[548] See for example, Mr R. Monson, Submission 14, p.1

[549] Committee Hansard, 26 September 2005, p. 50.

[550] Mr. J. Peter, Submission 3, p.1

[551] See for example, Castan Centre for Human Rights Law, Submission 71, p.2.

[552] Robtelmes v Brenan (1906) 4 CLR 395; JSCM, Asylum, Border Control and Detention, February 1994, p.11.

[553] Reported JSCM, Asylum, Border Control and Detention, February 1994, p.11.

[554] See also Mr. N. Hitchcock, Fellow and former President, Migration Institute of Australia, Committee Hansard 28 September 2005, p.73.

[555] (2004) 78 ALJR 1099, Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ, Gummow and Kirby JJ dissenting; [2004] HCA 38.

[556] Prince P., The High Court and indefinite detention: towards a national bill of rights?, Research Brief, Department of Parliamentary Services, 16 November 2004, p.1.

[557] See, for example, Ms R McKenry, Submission 2, p.3; Submission 71, p.4.

[558] Mr. J. Peter, Submission 3, p.1.

[559] HREOC, Submission 199, p. 5. See also Ms Rosemary McKenry, Submission 2, p. 3; Mr J. Peter, Submission 3, p. 1 and NSW Young Lawyers Human Rights Committee, Submission 198, p. 3.

[560] UNHCHR, Submission 74, p.3; For a more detailed statement of UNHCR's position in relation to detention see UNCHR's submission to the HREOC National Inquiry into Children in Immigration Detention, available at http://www.unhcr.org.au/pdfs/subinqchildimmi.pdf.

[561] The HRC is the treaty monitoring body constituted under the ICCPR and responsible for overseeing the implementation of the ICCPR by State parties to the treaty.

[562] Mr A was released from detention on 27 January 1994.

[563] See also Van Alphen v the Netherlands: Views adopted on 23 July 1990, para.5.8.

[564] A v Australia Communication No.560/1993 CCPR/C/59/D/560/1993. 9.3 available at http://www.bayefsky.com/docs.php/area/jurisprudence/treaty/ccpr/opt/0/state/9/node/5/type/finalview.

[565] See for example, Bakhtiyari v Australia, Communication No. 1069/2002 UN Doc. CCPR/C/79/D/1069/2002 para.9.3; C v Australia Communication No. 900/1999 UN Doc. CCPR/C/76/D/900/1999 para.8.2; see also Madafferi v Australia, Communication 1011/2002 UN Doc. CCPR/C/81/D/1011/2001.

[566] For example, Mr. J Peter, Submission 3, p.1.

[567] Castan Centre for Human Rights Law, Submission 71, p.2.

[568] Castan Centre for Human Rights Law, Submission 71, p.3.

[569] Ballarat Refugee Support Network, Submission 52, pp. 1-2; Ms Rosalind Berry, Submission 137, p. 5; FECCA, Submission 101, p. 3; Great Lakes Rural Australians for Refugees, Submission 150, p. 2; Social Issues Executive Anglican Diocese Sydney, Submission 155, p. 1; NCCA, Submission 179, p. 18; HREOC, Submission 199, p. 3.

[570] Committee Hansard 7 October 2005, p.71.

[571] South Brisbane Immigration & Community Legal Service, Submission 200, p. 5.

[572] Catholic Migrant Centre, Submission 165, p. 3.

[573] Mr Colin James Apelt, Submission 89, p. 1.

[574] FECCA, Submission 101, p. 3.

[575] Commission’s Report of an inquiry into complaints by immigration detainees concerning their detention at the Curtin Immigration Reception and Processing Centre (HREOC Report No. 28), http://www.humanrights.gov.au/human_rights/human_rights_reports/hrc_report_28.htm; Those who've come across the seas, http://www.humanrights.gov.au/human_rights/asylum_seekers/index.html#seas; last resort?, http://www.humanrights.gov.au/human_rights/children_detention_report/index.html

[576] HREOC, Submission 199, pp. 3-4.

[577] See for example, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN GA Resolution 43/173, 9 December 1988.

[578] Committee Hansard 8 November, 2005, pp 11-14.

[579] Committee Hansard 8 November 2005, p. 12.

[580] Response to Question on Notice given 11 October, 2005.

[581] Natasha Robinson, Detainee arguing 'slave labour' case, Australian, 6 December 2005, p. 3.

[582] Natasha Robinson, Detainee arguing 'slave labour' case, Australian, 6 December 2005, p. 3.

[583] RASSA, Response to Question on Notice given 26 September, 2005, p. 2.

[584] Committee Hansard 8 November 2005, p. 14.

[585] Response to Question on Notice given on 11 October 2005.

[586] ILO Convention 29, Article 4(1).

[587] Ms Margaret McGregor, Submission 20, p. 1; FECCA, Submission 101, pp. 5-6; Ms Rosalind Berry, Submission 137, pp 6-7.

[588] STTARS, Submission 138, pp 3-4.

[589] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Raur, 6 July 2005, p. 7.

[590] FECCA, Submission 101, p. 6.

[591] Mr Bert and Mrs Christine Fabel, Submission 54, p.1; Ms Gwen Gorman, Submission 136, p. 1.

[592] FECCA, Submission 101, p. 6; Brotherhood of St Laurence, Submission 175, p. 4.

[593] Committee Hansard , 27 September 2005, p. 21.

[594] Committee Hansard, 26 September 2005, p. 40.

[595] RASSA, Submission 51, pp 6-7.

[596] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Raur, 6 July 2005, p. 59.

[597] Commonwealth Ombudsman, Submission 196, p. 2.

[598] A Just Australia, Submission 184, p. 13.

[599] Committee Hansard, 27 September 2005, pp 44-45.

[600] Response to a Question on Notice, 5 December 2005.

[601] MSI 403 Transfer of detainees within immigration detention facilities, para. 3.4.34.

[602] MSI 403 Transfer of detainees within immigration detention facilities.

[603] Ms D. Lascaris, Submission 70, p. 2.

[604] Jamal A Daoud, Submission 85, p. 3.

[605] Elizabeth Wynhausen, 'At the mercy of private guards', Weekend Australian, 11 June 2005,
p. 22.

[606] A Just Australia, Submission 184, p. 13.

[607] FECCA, Submission 101, p. 3.

[608] Catholic Migrant Centre, Submission 165, p. 3.

[609] Committee Hansard,, 27 September, 2005, p. 44.

[610] Committee Hansard , 26 September, 2005, p. 28

[611] Response to question on notice, 5 December 2005.

[612] Dr Joan Beckwith, Submission 142, p. 2.

[613] RASSA, Submission 51, p. 2.

[614] Ms Emma Corcoran, Submission 53, p. 2; Ms Helen Lewers, Submission 77, p. 15.

[615] Hopestreet Urban Compassion, Submission 30, p. 2; Strathalbyn Circle of Friends 22, Submission 69, p. 4.

[616] Committee Hansard, 26 September 2005, p. 43.

[617] Catholic Bishops Committee for Migrants and Refugees, Submission 73, p. 8.

[618] Committee Hansard, 27 September 2005, p. 61.

[619] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, 6 July 2005,p. 68

[620] Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Raur, 6 July 2005, p. 68.

[621] Sydney South West Area Health Service, Submission 209, p. 3.

[622] Brotherhood of St Laurence, Submission 175, p. 4.

[623] Mr Ian Knowles, Submission 118, p. 8; A Just Australia, Submission 184, p. 18.

[624] RASSA, Submission 51, Appendix B; Ms Kerrie Barry, Submission 146, p. 1.

[625] RASSA, Submission 51, p. 6; STTARS, Submission 138, p. 4.

[626] Strathalbyn Circle of Friends 22, Submission 69, p. 6; St Vincent de Paul Society, Submission 147, p. 2.

[627] A Just Australia, Submission 184, p. 18.

[628] Ms Rosalind Berry, Submission 137, p. 8.

[629] Mr Martin Clutterbuck, Asylum Seekers Resource Centre, Committee Hansard, 27 September 2005, p. 69.

[630] Mr Jamal A Daoud, Submission 85, pp 4-5.

[631] Strathalbyn Circle of Friends 22, Submission 69, p. 6; Mr Brian Davies, Submission 113, p. 2; Mr Ian Knowles, Submission 118, p. 8; St Vincent de Paul Society, Submission 147, p. 2.

[632] Mrs Jean Jordan, Submission 18, p. 4.

[633] Ms Rosalind Berry, Submission 137, p. 8.

[634] Ms Ruth Graham, Submission 122, p. 2.

[635] Sydney South West Area Health Service, Submission 209, pp 10-11.

[636] Companion House, Submission 141, p. 5.

[637] See for example, Dr Jon Jureidini, Submission 31, p. 1; RANZCP, Submission 108 p. 2

[638] Ms Lizz Hutchinson, Submission 108, p. 4.

[639] Ms Lizz Hutchinson, Submission 108, p. 4.

[640] Dr Jon Jereidini, Submission 31, p. 1.

[641] RANZCP, Submission 108, p. 2.

[642] STTARS, Submission 138, p. 1.

[643] See discussion of Steel et al (2004) and Sultan and O'Sullivan (2001) in Lisa A Hornsby, The illness of Detention: Access to mental health care for refugees residing in immigration detention, Report prepared for the Senate Select Committee on Mental Health, October, 2005, p. 18.

[644] Mares and Jureidini 2004, Sultan and O'Sullivan 2001, Steel et al 2004 and Mares et al 2002 referred to in Lisa A Hornsby, The illness of Detention, 2005, ibid, p. 19.

[645] Mares and Jureidini 2004; Steel et al 2004; Mares et al 2002 and Zwi et al 2003; Sultan and O'Sullivan 2001 cited in Lisa A Hornsby, The illness of Detention, 2005, ibid, p. 19.

[646] Lisa A Hornsby, The illness of Detention, 2005, ibid, p. 7.

[647] Lisa A Hornsby, The illness of Detention, 2005, Lisa A Hornsby, The illness of Detention, 2005, ibid, p. 7.

[648] Commonwealth of Australia, 2004, p.46 quoted in Lisa A Hornsby, The illness of Detention, 2005, ibid, p. 11.

[649] Commonwealth of Australian, 2004, p.46 quoted in Lisa A Hornsby, The illness of Detention, 2005, ibid, p.12. See also, for example, UN General Assembly Resolution 46/119 The Protection of persons with mental illness and the improvement of mental health care, 46th Session, 17 December 1991.

[650] RANZCP, Submission 108, p. 3.

[651] S v Secretary Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549.

[652] C v Australia Communication No. 900/1999 UN Doc. CCPR/C/76/D/900/1999 para. 8.4; see also Madafferi v Australia, Communication 1011/2002 UN Doc. CCPR/C/81/D/1011/2001, paras. 9.2 and 9.3.

[653] Ms Nina Boddenberg, Submission 32, p. 1; Strathalbyn Circle of Friends 22, Submission 69, p. 5; Ms Annette Shears and Ms Peta Anne Molloy, Submission 105, p. 1; HREOC, Submission 199, pp 7-8.

[654] HREOC Report, A last resort (April 2004), pp 12-16.

[655] RANZCP, Submission 108, p. 2.

[656] HREOC Report, A last resort (April 2004), quoted in Submission 199, pp 7-8.

[657] RANZCP, Submission 108, p. 3.

[658] Committee Hansard 27 September, p. 24

[659] STTARS, Submission 138, p. 4. Similar findings were made by Companion House in relation to the mental health of refugees who had been released from detention and whom they had assisted. Companion House, Submission 141, pp 1-3.

[660] Committee Hansard, 27 September 2005, p. 21.

[661] Mr Guy Coffey, Submission 81, p. 4.

[662] Mr Guy Coffey, Submission 81, p. 4.

[663] ASRC, Submission 214, p. 30.

[664] Committee Hansard , 27 September, 2005, p. 21.

[665] Committee Hansard, 26 September 2005, p. 40.

[666] Committee Hansard, 26 September 2005, p. 42.

[667] Elisabeth Wynhausen, At the mercy of private guards, Weekend Australian, 11 June 2005, p 22.

[668] DIMA, Submission 205, p. 48.

[669] Response to Question on Notice given 11 October 2005.

[670] Committee Hansard, 11 October 2005, p. 30.

[671] Response to Question on Notice given 11 October 2005.

[672] Response to Question on Notice given 11 October 2005.

[673] Response to Question on Notice given 11 October 2005.

[674] RANZCP, Submission 108, pp 3-4.

[675] LIV, Submission 206, pp 26-27.

[676] RANZCP, Submission 108, p. 3.

[677] RASSA, Submission 51, p. 6.

[678] South Sydney West Area Health Service, Submission 209, p. 7.

[679] A Just Australia, Submission 184, pp 13-14.

[680] Committee Hansard, 27 September 2005, p. 29.

[681] DIMA, Submission 205, p. 49.

[682] LIV, Submission 206, p. 26.

[683] Ms Margaret McGregor, Submission 20, p. 1; Mr Jamal A Daoud, Submission 85, p. 5; Ms Margaret Tonkin, Submission 96, p. 1; Great Lakes Rural Australians for Refugees, Submission 150, p. 3; Ms Joan Nield, Submission 152, p. 4.

[684] Sister Jane Keogh, Submission 34, pp. 2-6; Ms Rosalind Berry, Submission 137, pp 6-7.

[685] Ms Margaret McGregor, Submission 20, p. 1.

[686] Ms Joan Nield, Submission 152, p. 4.

[687] http://www.minister.immi.gov.au/media_releases/media05/v05111.htm

[688] Ballarat Refugee Support Network, Submission 52, p. 5; Ms Meryl McLeod, Submission 56, p. 3; St Vincent de Paul Society, Submission 147, p. 3; LIV, Submission 206, p. 18.

[689] Ballarat Refugee Support Service, Submission 52, p. 5.

[690] Committee Hansard, 11 October 2005, p. 18.

[691] Committee Hansard, 11 October 2005, p. 18.

[692] National Council of Churches, Submission 179, p. 19.

[693] Justice for Asylum Seekers. Submission 163, Attachment A, p. 47.

[694] Committee Hansard, 27 September 2005, p. 33.

[695] SJC, Submission 171, p.2

[696] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 11.

[697] The Global Solutions Limited website accessed on 19 January 2006 reports that GSL was purchased in July 2004 by two private equity investors, Englefield Capital and Electra Partners Europe. See http://www.gslglobal.com/press_centre/introduction.asp

[698] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 11.

[699] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 11.

[700] Palmer Report, p. 60.

[701] Submission 205, p. 45. Schedule 2, clause 4.1.2 Detention Services Contract reported in Mr M. Palmer, Report on the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, 6 July 2005,p. 67; See also DIMIA evidence to Joint Standing Committee on Migration, Detention Centre Contracts: Review of Audit report No.1 2005-2006, Management of the Detention Centre Contracts – Part B, November 2005,Canberra, p.25.

[702] www.gslpl.com.au/gsl/contracts/contracts.asp (accessed 28 September 2005).

[703] http://www.immi.gov.au/detention/standards_index.htm (accessed 4 October 2005).

[704] www.gslpl.com.au/gsl/contracts/contracts.asp (accessed 28 September 2005).

[705] Committee Hansard, 8 November 2005, p. 2.

[706] Committee Hansard, 8 November 2005, p. 3.

[707] Committee Hansard, 8 November 2005, p. 6.

[708] Committee Hansard, 8 November 2005, p. 6.

[709] Committee Hansard, 8 November 2005, p. 7.

[710] Committee Hansard, 8 November 2005, p. 7.

[711] For example, see Law Institute of Victoria, Submission 206, p. 27; Women and Reform of Migration, Submission 189, p. 23.

[712] Commonwealth Ombudsman, Media Release, 6 October 2005 at http://www.comb.gov.au/news_current_issues/media_releases/media_release_Alvarez_061005.pdf (accessed 7 December 2005).

[713] Palmer Report, p. xiii.

[714] Palmer Report, p. 61.

[715] Palmer Report, p. 70.

[716] Palmer Report, p. 64.

[717] Palmer Report, p. 81.

[718] Palmer Report, p. 70.

[719] Palmer Report, p. 180.

[720] Palmer Report, p. 180.

[721] Palmer Report, pp 181-182.

[722] ANAO, Management of Detention Centre Contracts – Part A, Audit Report No. 54, 2003-2004.

[723] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 12.

[724] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 12; DIMIA, 2004-05 Annual Report, p. 393. ANAO advise that publication of this latest report has been delayed until about February 2006.

[725] Australian National Audit Office, Submission 99, p. 20.

[726] Australian National Audit Office, Submission 99, pp 10-12 & p. 49.

[727] Australian National Audit Office, Submission 99, p. 10.

[728] Australian National Audit Office, Submission 99, p. 10.

[729] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 48.

[730] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, pp 14 & 18.

[731] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 49.

[732] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, pp 18-19.

[733] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 16.

[734] Committee Hansard, 7 October 2005, p. 12.

[735] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 16.

[736] ANAO, Submission 99, p. 12.

[737] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 23.

[738] DIMIA, 2004-05 Annual Report, p. 392.

[739] DIMIA, 2004-05 Annual Report, p. 392.

[740] DIMIA, 2004-05 Annual Report, p. 392.

[741] DIMIA, Implementation of the Recommendations of the Palmer Report of the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, September 2005.

[742] The PIP initiatives are consistent with the Palmer Report recommendations and those contained in the draft Comrie Report provided to DIMIA prior to its finalisation: see DIMIA, Implementation of the Recommendations of the Palmer Report of the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, September 2005, p. 3.

[743] Joint Standing Committee on Migration, Detention Centre Contracts, Review of Audit Report No. 1, 2005-2006, Management of the Detention Centre Contracts – Part B, December 2005, p. 7.

[744] DIMIA, Implementation of the Recommendations of the Palmer Report of the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, September 2005, p. 3.

[745] Joint Standing Committee on Migration, Detention Centre Contracts, Review of Audit Report No. 1, 2005-2006, Management of the Detention Centre Contracts – Part B, December 2005.

[746] Joint Standing Committee on Migration, ibid, foreword.

[747] Joint Standing Committee on Migration, Committee Hansard, 10 October 2005, p. 13.

[748] Joint Standing Committee on Migration, Committee Hansard, 10 October 2005, pp 14-15; Joint Standing Committee on Migration, Detention Centre Contracts, Review of Audit Report No. 1, 2005-2006, Management of the Detention Centre Contracts – Part B, December 2005, p. 9.

[749] Joint Standing Committee on Migration, Detention Centre Contracts, Review of Audit Report No. 1, 2005-2006, Management of the Detention Centre Contracts – Part B, December 2005, p. 32.

[750] Joint Standing Committee on Migration, ibid, p.10.

[751] Joint Standing Committee on Migration, ibid, pp 10-11.

[752] Joint Standing Committee on Migration, ibid, p.16.

[753] Joint Standing Committee on Migration, ibid, p. 16.

[754] Joint Standing Committee on Migration, ibid, p. 21.

[755] Joint Standing Committee on Migration, ibid, p. 24.

[756] Joint Standing Committee on Migration, ibid, p. 24.

[757] Joint Standing Committee on Migration, ibid, p. 33.

[758] DIMIA answers to Questions on Notice, 5 December 2005, p. 11. See http://www.aph.gov.au/senate/committee/legcon_ctte/migration/qon/05dec-dimia2.pdf

[759] DIMIA answers to Questions on Notice, 5 December 2005, pp 11-12. See http://www.aph.gov.au/senate/committee/legcon_ctte/migration/qon/05dec-dimia2.pdf

[760] DIMIA answers to Questions on Notice, 5 December 2005, p. 12. See http://www.aph.gov.au/senate/committee/legcon_ctte/migration/qon/05dec-dimia2.pdf

[761] Joint Standing Committee on Migration, Committee Hansard, 10 October 2005, p. 20.

[762] Joint Standing Committee on Migration, Committee Hansard, 10 October 2005, p. 13.

[763] Joint Standing Committee on Migration, Detention Centre Contracts, Review of Audit Report No. 1, 2005-2006, Management of the Detention Centre Contracts – Part B, December 2005, p. 9.

[764] Joint Standing Committee on Migration, ibid, p. 32.

[765] Joint Standing Committee on Migration, ibid, p. 33.

[766] DIMIA answers to Questions on Notice, 16 December 2005, p. 1. See http://www.aph.gov.au/senate/committee/legcon_ctte/migration/qon/16dec-dimia.pdf

[767] DIMIA answers to Questions on Notice, 16 December 2005, p. 1. See http://www.aph.gov.au/senate/committee/legcon_ctte/migration/qon/16dec-dimia.pdf

[768] For example, see Ms Gwen Gorman, Submission 136, p. 1; Brotherhood of St Laurence, Submission 175, p. 4.

[769] For example, see Jamal A. Daoud, Submission 85, p. 5.

[770] Bishops Committee for Migrants and Refugees, Submission 73, p. 9.

[771] Bishops Committee for Migrants and Refugees, Submission 73, pp 9-10.

[772] Asylum Seeker Resource Centre, Submission 214, p. 34.

[773] Federation of Ethnic Communities' Councils of Australia, Submission 101, p. 5.

[774] Federation of Ethnic Communities' Councils of Australia, Submission 101, p. 5.

[775] Committee Hansard, 29 September 2005, p. 15.

[776] Women and Reform of Migration, Submission 189, p. 29.

[777] Women and Reform of Migration, Submission 189, p. 19.

[778] Women and Reform of Migration, Submission 189, p. 25.

[779] Women and Reform of Migration, Submission 189, p. 19.

[780] Committee Hansard, 26 September 2005, pp 34- 35.

[781] Committee Hansard, 26 September 2005, p. 35.

[782] Women and Reform of Migration, Submission 189, p. 30.

[783] Women and Reform of Migration, Submission 189, p. 25.

[784] Refugee Council of Australia, Submission 148, p. 10.

[785] Mr Angus Francis, Submission 234, p. 4.

[786] Mr Angus Francis, Submission 234, p. 10.

[787] Mr Angus Francis, Submission 234, p. 10.

[788] Refugee Advocacy Service of South Australia, Submission 51, p. 8.

[789] Refugee Advocacy Service of South Australia, Submission 51, p. 8.

[790] Conference of Leaders of Religious Institutes in New South Wales, Submission 171, p. 6.

[791] Conference of Leaders of Religious Institutes in New South Wales, Submission 171, p. 6.

[792] Human Rights and Equal Opportunities Commission, Submission 199, p. 9.

[793] Dr Margaret Kelly, Submission 103, pp 21-22.

[794] Law Council of Australia, Submission 233, p. 8.

[795] Ms Frederika Steen, Submission 224, p. 13.

[796] Conference of Leaders of Religious Institutes in New South Wales, Submission 171, p. 6.

[797] Law Institute of Victoria, Submission 206, p. 28.

[798] Committee Hansard, 27 September 2005, p. 75.

[799] Committee Hansard, 27 September 2005, pp 75-76.

[800] Committee Hansard, 26 September 2005, p. 19.

[801] Committee Hansard, 26 September 2005, p. 20.

[802] For example, see Mr Brian Davies, Submission 113, p. 2; Ms Elizabeth Gibbings, Submission 114, p. 2; Mr Ian Knowles, Submission 118, p. 10; Ms Ruth Graham, Submission 122, p. 2.

[803] ANAO, Management of Detention Centre Contracts – Part B, Audit Report No. 1 2005-2006, p. 17.

[804] Australian Psychological Society, Submission 223, p. 7.

[805] Government of Western Australia, Submission 226, p. 3.

[806] Government of Western Australia, Submission 226, p. 4.

[807] St Vincent de Paul Society, Submission 147, p. 2: see also A Just Australia, Submission 184, p. 18; Coalition for the Protection of Asylum Seekers, Submission 174, p. 16; Great Lakes Rural Australians for Refugees, Submission 150, p. 3.

[808] Ms Rosi Aryal, Submission 98, p. 2.

[809] Ms Annette Shears and Ms Peta Anne Molloy, Submission 105, p. 3.

[810] Refugee Council of Australia, Submission 148, p. 10.

[811] Ms Genevieve Caffery, Submission 78, p. 1.

[812] Committee Hansard, 26 September 2005, p. 30.

[813] Ms Frederika Steen, Submission 224, pp 12-13.

[814] Ms Gwen Gorman, Submission 136, p. 1.

[815] Refugee Council of Australia, Submission 148, p. 10.

[816] Law Council of Australia, Submission 233, p. 9.

[817] Law Council of Australia, Submission 233, p. 9.

[818] Law Council of Australia, Submission 233, p. 7.

[819] Law Council of Australia, Submission 233, p. 5.

[820] Law Council of Australia, Submission 233, p. 5.

[821] These include Recommendations 4.3, 4.6 and 4.9 of the Palmer Report.

[822] Law Council of Australia, Submission 233, pp.5 & 6.

[823] A Just Australia, Submission 184, p. 19.

[824] Law Institute of Victoria, Submission 206, p. 28.

[825] A Just Australia, Submission 184, p. 19.

[826] Women and Reform of Migration, Submission 189, p. 20.

[827] Mr Angus Francis, Submission 234, p. 11.

[828] See, for example, S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 (5 May 2005).

[829] Migration Amendment (Detention Arrangements) Act 2005.

[830] Between 1 July 1999 and 30 December 2005, 12,480 PPVs and 9,766 TPVs were granted. 64% of the PPVs were issued to former TPV and THV holders. 110 of the 9,766 TPVs were granted to applicants for a further protection visa. Of those 110, 13 were granted on the basis of the '7 day rule', while 97 were granted on the basis that the applicant had a conviction punishable by a penalty of 12 months imprisonment or more (Migration Regulation 888.222A). There were 1,440 TPV holders in Australia as at 30 December 2005. DIMIA provided these statistics to the committee on 13 January 2006.

[831] DIMIA Fact Sheet no. 64a 'New Measures for Temporary Protection and Temporary Humanitarian Visa Holders'. Accessed on DIMIA website 3 January 2006.

[832] Migration Regulations 1994, 866.215(1). The '7 day rule' was introduced on 27 September 2001.

[833] DIMIA, Submission 205, p. 27.

[834] For example, Edmund Rice Centre for Justice and Community Education, Submission 151, p. 7.

[835] Law Society of South Australia, Submission 110, pp 1-2.

[836] Law Society of South Australia, Submission 110, p. 2. See also Ms Rosemary McKenry, Submission 2, p. 2; Ms Sue Hoffman, Submission 37, p. 2; Ms Helena Leeder, Submission 46, p. 1;

[837] See, for example, Ms Sue Hoffman, Submission 37, p. 1; Ms Genevieve Caffery, Submission 78, p. 1; Ms Amanda Kube, Submission 107, p. 1; LSSA, Submission 110, p. 2; LIV, Submission 206, p. 16; Brother of St Laurence, Submission 175, p. 3; NCCA, Submission 179, p. 25.

[838] Committee Hansard, 27 September 2005, pp 34-35.

[839] Committee Hansard, 7 October 2005, p. 35.

[840] Law Institute of Victoria, Submission 206, pp 15-16.

[841] Committee Hansard, 27 September 2005, pp 34-35.

[842] Law Society of South Australia, Submission 110, p. 2.

[843] Law Society of South Australia, Submission 110, p.2. See also Submission 204, p. 17.

[844] See, for example, UNHCR, Submission 74, pp 5-7; LSSA, Submission 110, p. 6; Albany Community for Afghan Refugees, Submission 177, p. 3; SBICLS, Submission 200, p. 8.

[845] South Brisbane Immigration and Community Legal Service, Submission 200, p. 8.

[846] South Brisbane Immigration and Community Legal Service, Submission 200, p. 8.

[847] Committee Hansard, 7 October 2005, p. 35.

[848] Community Relations Commission for a Multicultural NSW, Submission 232, p. 14.

[849] Law Institute of Victoria, Submission 206, pp 15 – 16.

[850] Australian Political Ministry Network Ltd, Submission 164, p. 8. Similar comments were expressed by SAVE – Australia Inc., Submission 203, p. 5.

[851] National Council of Churches in Australia, Submission 179, p.2. Other submissions which call for the abolition of the TPV regime include LIV, submission 206, p. 16.

[852] Government of Victoria, Submission 227, p. 2.

[853] DIMIA Fact Sheet 64d, New Onshore Visa Options for Temporary Protection and Temporary Humanitarian Visa Holders, 24 August 2004. DIMIA, Submission 205, p. 24. The changes apply to current and former holders of certain sub-classes of Temporary Protection Visas and Temporary Humanitarian Visas who were in Australia on or before 27 August 2004.

[854] For details of the seven classes of bridging visas see Chapter 1, p. 12, Footnote 28. These definitions are taken from DIMIA, Submission 205, p. 10.

[855] DIMIA, Submission 205, p. 29.

[856] DIMIA, Submission 205, p. 10.

[857] J. Burn and S Reich, The Immigration Kit, 7th Edition, pp. 154 – 158.

[858] Asylum Seekers Centre Inc., Submission 201, p. 3; Ms Hoa Pham, Submission 35, p. 1; LSSA, Submission 110, p. 7. Without work rights (and tax file numbers) asylum seekers do not have access to Medicare.

[859] DIMIA provided funding of $3.4 million in 2004-05 to the Asylum Seekers Assistance Scheme (ASAS) administered by the Red Cross. To be eligible for ASAS help, applicants must hold a bridging visa and be in financial hardship. Usually ASAS funding is only provided after 6 months have elapsed from when they applied for a protection visa. The assistance ceases when the protection visa application is decided. The Immigration Kit, pp. 456-457.

[860] Mr Ahmed Al Kateb, Submission 86, p. 1.

[861] Ms Julie Turner, Submission 104, p.1.

[862] Mr Roland Good, Submission 1, p. 1; Ballarat Refugee Support Network, Submission 52, p. 4; Mr Don Stokes, Submission 64, p. 2; Pilgrim Circle of Friends 27, Submission 79, p. 3; APMN, Submission 164, p. 8; Buddies Refugee Support Group, Submission 167, p. 2; Government of Western Australia, Submission 226, p. 1.

[863] Catholic Migrant Centre, Submission 165, p. 3.

[864] Uniting Justice Australia and Asylum Seeker Project Hotham Mission, Submission 190, p. 15.

[865] St Vincent de Paul Society, Submission 147, p. 2.

[866] Sydney South West Area Health Service, Submission 209, p. 4.

[867] Sydney South West Area Health Service, Submission 209, p. 5.

[868] Community Relations Commission for a Multicultural NSW, Submission 232, p. 16.

[869] Migration Institute of Australia, Submission 144, p. 3.

[870] http://www.immi.gov.au/facts/85removalpending.htm

[871] For details of entitlements see http://www.immi.gov.au/facts/85removalpending.htm

[872] UJA and ASPHM, Submission 190, 18.

[873] Asylum Seekers Resource Centre, Submission 214, p. 20.

[874] Adam R (Limbuela, Tesema v Secretary of State for the Home Department [2005] UKHL 66 (3 November 2005) accessed at http://www.bailii.org/uk/cases/UKHL/2005/UKHL_2005_66.html on 18 January 2006.

[875] Response by Hotham Mission to Question on Notice No. 1, Committee Hansard, 28 September 2005, p. 36.

[876] Senate Select Committee on Ministerial Discretion in Migration Matters, March 2004, pp. 78 – 80.

[877] Commonwealth of Australia Constitution Act, ss. 51(xxix).

[878] DIMIA website accessed 5 January 2006, Fact Sheet 60. http://www.dimia.gov.au/facts/60refugee.htm Australia's Humanitarian Program also includes two types of temporary visa, but the discussion here relates more to permanent visa categories. Note the term 'proposer' is used by DIMIA in relation to offshore humanitarian visas, while the term 'sponsor' is used for other visa categories.

[879] DIMIA, Submission 205, p. 31.

[880] DIMIA website accessed 5 January 2006, Fact Sheet 66, http://www.dimia.gov.au/facts/66ihss.htm

[881] DIMIA website accessed 5 January 2006, Fact Sheet 60, http://www.dimia.gov.au/facts/60refugee.htm .

[882] Figures provided to the Committee by DIMIA on 10 January 2006.

[883] The figures are based on DIMIA's IHSS database, derived from Graph 8, Chapter 4 in DIMIA's 'Blue Book' and can be found at http://www.immi.gov.au/search_for/publications/humanitarian_support_2005/index.htm DIMIA explained that the figures in Table 8.3 may differ slightly from the numbers shown in Table 8.2 because of delays in visa holders actually arriving in Australia for resettlement.

[884] The State submissions are NSW - Submission 232, Victoria – Submission 227, and Western Australia – Submission 226.

[885] Government of Western Australia, Submission 226, p. 4.

[886] Government of Western Australia, Submission 226, p. 4. See also Community Relations Commission for a multicultural NSW, Submission 232, p. 37.

[887] Community Relations Commission for a Multicultural NSW, Submission 232, p. 37.

[888] Community Relations Commission for a Multicultural NSW, Submission 232, p. 33.

[889] DIMIA Fact Sheet 'Sponsoring (Proposing) a Refugee or Humanitarian Entrant', DIMIA website accessed 10 January 2006.

[890] Community Relations Commission for a Multicultural NSW, Submission 232, pp. 31 - 32.

[891] Community Relations Commission for a multicultural NSW, Submission 232, p. 33.

[892] Government of Victoria, Submission 227, p. 3.

[893] Government of Western Australia, Submission 226, p. 6. Apart from malaria, African refugees need to be screened for tuberculosis, HIV, gastrointestinal parasites and other tropical diseases.

[894] Government of Western Australia, Submission 226, p. 6.

[895] Community Relations Commission for a Multicultural NSW, Submission 232, p. 38.

[896] Community Relations Commission for a Multicultural NSW, Submission 232, p. 41.

[897] Community Relations Commission for a Multicultural NSW, Submission 232, p. 42.

[898] Community Relations Commission for a Multicultural NSW, Submission 232, p. 35.

[899] Government of Western Australia, Submission 226, p. 5; Community Relations Commission for a multicultural NSW, Submission 232, pp. 48 & 49.

[900] Community Relations Commission for a Multicultural NSW, Submission 232, pp. 46 – 47.

[901] Under section 198 of the Migration Act, a mandatory removal process for a number of classes of 'unlawful non-citizens' is established. These classes include: those who have requested the Minister in writing to be so removed; those who have been brought to Australia for a temporary purpose; those who have not made a valid application for a substantive visa when in the migration zone; those who have had an application for a substantive visa finally determined against them; and those who may be eligible to apply for a substantive visa but have not done so.

[902] Migration Reform Act 1992. Effective from 1/9/1994.

[903] Dr Glenn Nicholls, Submission 102, p. 1.

[904] Committee Hansard, 27 September 2005, p. 11.

[905] Dr Glenn Nicholls, Submission 102, p. 1.

[906] Dr Glenn Nicholls, Submission 102, p. 1.

[907] ASRC, Submission 214, p. 36.

[908] ASRC, Submission 214, p. 36.

[909] Australian Psychological Society, Submission 223, p. 5.

[910] Discussed in Chapter 4.

[911] Australian Psychological Society, Submission 223, p. 5.

[912] ASRC, Submission 214, p. 40.

[913] ASRC, Submission 214, pp. 40-41.

[914] Answers to questions on notice, 5 December 2005, p. 87.

[915] ACRC, Submission 214, p. 41.

[916] See Immigration and Refugee Protection Act 2001, ss. 112-116.

[917] ASRC, Submission 190, p. 41.

[918] Committee Hansard, 7 October 2005, p. 53.

[919] Committee Hansard, 27 September 2005, p. 11.

[920] ASRC, Submission 214, p. 37.

[921] LSSA, Submission 110, p. 10.

[922] LSSA, Submission 110, p. 10.

[923] Answers to Questions on Notice, 11 October 2005, p. 46.

[924] Senate Foreign Affairs, Defence and Trade References Committee, The removal, search for and discovery of Ms Vivian Solon, Final report, December 2005.

[925] Senate Foreign Affairs, Defence and Trade References Committee, ibid, p. 15.

[926] Senate Foreign Affairs, Defence and Trade References Committee, ibid pp 15-16.

[927] Senate Foreign Affairs, Defence and Trade References Committee, ibid p. 16.

[928] Senate Foreign Affairs, Defence and Trade References Committee, ibid p. 16.

[929] DIMIA, Answers to questions on notice, 11 October 2005, p. 17.

[930] DIMIA, Answers to questions on notice, 11 October 2005, p. 17. Issues that must be considered under the Ministerial Direction in the exercise of the power under section 501 are set out later in this chapter.

[931] Effective 1 June 1999.

[932] See, for example, Dr Glenn Nicholls, Submission 102, p. 2.

[933] SBICLS, Submission 200, p. 4.

[934] Castan Centre for Human Rights Law, Submission 71, p. 10.

[935] Castan Centre for Human Rights Law Submission 71, p. 10.

[936] Committee Hansard, 11 October 2005, p. 19.

[937] Committee Hansard, 11 October 2005, p. 19.

[938] Committee Hansard, 11 October 2005, p. 19.

[939] House Hansard, p. 1229.

[940] In mid 1997, the then Acting Minister for Immigration and Multicultural Affairs (Senator Vanstone) cancelled the visa of Lorenzo Ervin, who had been convicted of air piracy and kidnapping in the United States in 1969. Mr Ervin sought judicial review of the decision in the High Court. On 10 July 1997, counsel for the Minister proposed that the Minister's decision cancelling Mr Ervin's visa be set aside: Re: The Minister for Immigration and Multicultural Affairs Ex parte Ervin B 29/1997 (10 July 1997); See Spry M. and Margarey K., Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998, Bills Digest No.48 1998-99, 11 November 1998 p.3.

[941] For example, see CCHRL, Submission 71, p. 11; Dr Glenn Nicholls, Submission 102, p. 2; Migration Institute of Australia, Submission 144, p. 4. The committee notes that in 1998 the Joint Standing Committee on Migration examined this issue and 'resolved to maintain the ten year limit on liability for deportation for juveniles (immigrants who arrive in Australia under the age of 18) as an appropriate balance between the need to protect the community and the obligation Australia accepts for very young immigrants': Joint Standing Committee on Migration, Deportation of Non-Citizen Criminals, June 1998, p. 17.

[942] CCHRL, Submission 71, p. 11.

[943] Dr Glenn Nicholls, Submission 102, p, 3.

[944] CCHRL, Submission 71, p. 11; SBICLS, Submission 200, p. 4.

[945] CCHRL, Submission 71, p. 11.

[946] Committee Hansard, 28 September 2005, p. 45.

[947] Legal Aid New South Wales, Submission 166, p. 18.

[948] Legal Aid New South Wales, Submission 166, p. 18.

[949] LACNSW, Submission 166, pp 18-19.

[950] LACNSW, Submission 166, p. 22.

[951] LACNSW, Submission 166, p. 22.

[952] Committee Hansard, 28 September 2005, p. 11.

[953] Meaghan Shaw, Get out: almost 3000 given their marching orders from Australia, Age, 25 November 2005, p. 2.

[954] Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; Re Patterson; Ex parte Taylor (2001) 207 CLR 391.

[955] Prince P., Deporting British Settlers, Research Note No.33, 2003-04, Parliamentary Library, 10 February 2004, p. 1.

[956] Prince P., Deporting British Settlers, Research Note No.33, 2003-04, Parliamentary Library, 10 February 2004, p. 1

[957] Prince P., Deporting British Settlers, Research Note No.33, 2003-04, Parliamentary Library, 10 February 2004, p. 1.

[958] See Assoc Professor Kneebone, Castan Centre for Human Rights Law, Submission, 71, p. 4.

[959] See The United Kingdom born Community at http://www.immi.gov.au/statistics/infosummary/textversion/uk.htm, citing 2001 census referred to in Prince P., Deporting British Settlers, Research Note No.33, 2003-04, Parliamentary Library, 10 February 2004, p. 1.

[960] For example, see Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 and Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7 & 139.

[961] [2005] FCAFC 121.

[962] Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 at para 1.

[963] Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 at paras 26 and 27.

[964] Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 at para 29.

[965] Answers to questions on notice, 5 December 2005, p. 1.

[966] Answers to questions on notice, 2 December 2005, p. 2.

[967] For example, see LACNSW, Submission 166, p. 23.

[968] SBICLS, Submission 200, p. 5.

[969] Committee Hansard, 27 September 2005, pp 51-52.

[970] Committee Hansard, 27 September 2005, p. 52.

[971] Committee Hansard, 27 September 2005, p. 52.

[972] Committee Hansard, 27 September 2005, p. 52.

[973] Committee Hansard, 28 September 2005, p. 75.

[974] Committee Hansard, 7 October 2005, p. 64.

[975] Committee Hansard, 7 October 2005, p. 64.

[976] Answers to questions on notice, 24 October 2005, p. 2.

[977] Answers to questions on notice, 24 October 2005, p. 2.

[978] Answers to questions on notice, 15 December 2005, p. 2.

[979] Answers to questions on notice, 5 December 2005, p. 93.

[980] Answers to questions on notice, 5 December 2005, p. 93.

[981] Joint Standing Committee on Migration, Deportation of Non-Citizen Criminals, June 1998.

[982] Answers to questions on notice, 5 December 2005, p. 93.

[983] Answers to questions on notice, 5 December 2005, p. 94.

[984] Answers to questions on notice, 5 December 2005, p. 94.

[985] Answers to questions on notice, 5 December 2005, p. 95.

[986] Answers to questions on notice, 5 December 2005, p. 95.

[987] Answers to questions on notice, 5 December 2005, p. 95.

[988] Answers to questions on notice, 11 November 2005, p. 63.

[989] Answers to questions on notice, 5 December 2005, p. 97.

[990] Answers to questions on notice, 5 December 2005, p. 97.

[991] Answers to questions on notice, 5 December 2005, p. 97.

[992] See further: 'Terminally ill migrant sues over 'wrongful' detention', ABC News Online at http://www.abc.net.au/news/newsitems/200510/s1485243.htm (accessed 19 October 2005); 'Sister's plea for stateless brother', Sydney Morning Herald, 24 November 2005; 'Deportee's only home a snowy road', Sydney Morning Herald, 25 November 2005.

[993] See, for example, 'Court ruling opens door for deportation payouts', ABC News Online at http://www.abc.net.au/news/newsitems/200510/s1474824.htm (accessed 5 October 2005).

[994] Senate Legal and Constitutional References Committee, A Sanctuary under Review, An Examination of Australia's Refugee and Humanitarian Determination Processes, June 2000, p. 329.

[995] Senate Legal and Constitutional References Committee, ibid p. 330.

[996] Senate Legal and Constitutional References Committee, ibid p. 337.

[997] Senate Legal and Constitutional References Committee, ibid p. 337.

[998] Senate Legal and Constitutional References Committee, ibid p. 342.

[999] Senate Legal and Constitutional References Committee, ibid p. 342.

[1000] Senate Legal and Constitutional References Committee, ibid p. 343.

[1001] Senate Legal and Constitutional References Committee, ibid p. 343.

[1002] Government Response to the Senate Legal and Constitutional References Committee Report: 'A Sanctuary under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes', February 2001, response to Recommendation 11.1.

[1003] Refugee Advocacy Service of South Australia, Submission 51, p. 10.

[1004] Coalition for the Protection of Asylum Seekers, Submission 174, p. 2.

[1005] Coalition for the Protection of Asylum Seekers, Submission 174, p. 2.

[1006] Coalition for the Protection of Asylum Seekers, Submission 174, p. 4.

[1007] ASRC, Submission 214, p. 41.

[1008] Ms Frederika Steen, Submission 224, p. 11.

[1009] Amnesty International, Submission 191, pp 12-13.

[1010] Edmund Rice Centre for Justice & Community Education, Deported to Danger, A Study of Australia's Treatment of 40 Rejected Asylum Seekers, September 2004.

[1011] Committee Hansard, 28 September 2005, p. 48.

[1012] Committee Hansard, 28 September 2005, p. 48.

[1013] Answers to questions on notice, 28 October 2005, pp 1-2.

[1014] Committee Hansard, 28 September 2005, p. 51.

See also

[1015] Law Society of South Australia, Submission 110, p. 13. See also

Refugee Advocacy Service of South Australia, Submission 51, p. 9

Social Issues Executive Anglican Diocese Sydney, Submission 155, p. 2

[1016] Answers to questions on notice, 5 December 2005, p. 91.

[1017] Answers to questions on notice, 5 December 2005, p. 91.

[1018] Answers to questions on notice, 5 December 2005, p. 91.

[1019] Answers to questions on notice, 5 December 2005, p. 91.

[1020] Answers to questions on notice, 5 December 2005, p. 92.

[1021] Answers to questions on notice, 5 December 2005, p. 92.

[1022] Answers to questions on notice, 5 December 2005, p. 92.

[1023] Answers to questions on notice, 28 October 2005, p. 1.

[1024] Answers to questions on notice, 28 October 2005, p. 2.

[1025] Answers to questions on notice, 28 October 2005, p. 2.

[1026] Committee Hansard, 28 September 2005, p. 56.

[1027] See further: http://www.immi.gov.au/study/visas/subclasses_assessment.htm (accessed 3 November 2005).

[1028] http://www.dest.gov.au/sectors/international_education/policy_issues_reviews/key_issues/esos/ (accessed 3 November 2005).

[1029] PhillipsKPA and LifeLong Learning Associates, Evaluation of the Education Services for Overseas Students Act 2000, June 2005 (ESOS Evaluation Report), Available at: http://www.dest.gov.au/sectors/international_education/policy_issues_reviews/reviews/evaluation_of_the_esos_act_2000/esos_reforms_default.htm (accessed 3 November 2005).

[1030] See ESOS Evaluation Report, recommendation 28.

[1031] See ESOS Evaluation Report, recommendation 35; see also DIMIA answers to Questions on Notice received 5 December 2005, p. 103. Under Schedule 8 of the Migration Regulation, Condition 8206 generally precludes students from transferring from the education provider of initial enrolment to another provider during the first 12 months of their course.

[1032] See ESOS Evaluation Report, recommendation 35.

[1033] DIMIA answers to Questions on Notice, received 11 October 2005, p. 69.

[1034] See, for example, Ms Michaela Rost, Submission 220, p. 1 and Committee Hansard, 27 September 2005, p. 3; LIV, Submission 206, p. 12; Dr Anthony Pun, Submission 94, p. 2.

[1035] ESOS Evaluation Report, p. 8; see also Ms Michaela Rost, Submission 220, pp 1 and 12.

[1036] See DIMIA answers to Questions on Notice, received 11 October 2005, p. 64.

[1037] Law Institute of Victoria, Submission 206, p. 12.

[1038] Committee Hansard, 27 September 2005, p. 84.

[1039] Ms Michaela Rost, Submission 220, pp 1 and 12.

[1040] Ms Michaela Rost, Submission 220, p. 8; see also Debra Jopson, 'Migration agents risk universities' future', Sydney Morning Herald, 9 May 2005, p. 4.

[1041] Migration Institute of Australia, Submission 144, p. 7.

[1042] Migration Institute of Australia, Submission 144, p. 7.

[1043] Migration Institute of Australia, Submission 144, p. 7.

[1044] Migration Institute of Australia, Submission 144, pp 7-8.

[1045] Ms Michaela Rost, Submission 220, p. 8.

[1046] Ms Michaela Rost, Submission 220, p. 8; see also Submission 220A, p. 3.

[1047] Answers to Questions on Notice, received 11 November 2005, p. 67.

[1048] Committee Hansard, 11 October 2005, p. 10.

[1049] Committee Hansard, 11 October 2005, p. 11.

[1050] Committee Hansard, 11 October 2005, p. 11.

[1051] See ESOS Evaluation Report, recommendation 16.

[1052] See further DIMIA, "Student Visa Conditions", http://www.immi.gov.au/study/visas/conditions.htm (accessed 4 November 2005).

[1053] See Ms Michaela Rost, Submission 206, p. 12.

[1054] See Migration Regulations, Schedule 8, condition 8101.

[1055] See Migration Regulations, Schedule 8, condition 8105.

[1056] Migration Regulation 2.43(2)(b)(i). Note also that section 137J of the Migration Act provides for automatic cancellation of student visas in certain circumstances.

[1057] See also Ms Michaela Rost, Submission 220, p. 13.

[1058] Migration Regulation 2.43(2)(b)(ii).

[1059] DIMIA answers to Questions on Notice received 5 December 2005, p. 101; and Migration Regulation 2.34(2)(b).

[1060] Ms Michaela Rost, Submission 220, p. 6.

[1061] Submission 220, p. 8; see also pp 12-14 and Committee Hansard, 27 September 2005, p. 3.

[1062] Committee Hansard, 27 September 2005, p. 6.

[1063] Committee Hansard, 27 September 2005, p. 6.

[1064] Law Institute of Victoria, Submission 206, p. 12; referring to [2005] FCAFC 132 (23 July 2005); and see also Ms Michaela Rost, Submission 220, pp 17-19.

[1065] Committee Hansard, 11 October 2005, p. 9.

[1066] Committee Hansard, 11 October 2005, p. 9.

[1067] Ms Michaela Rost, Submission 220, p. 12.

[1068] Ms Michaela Rost, Submission 220, pp 27-34 and also Committee Hansard, 27 September 2005, pp 4 and 7-9.

[1069] Ms Michaela Rost, Submission 220, p. 12.

[1070] Committee Hansard, 27 September 2005, p. 6.

[1071] ESOS Evaluation Report Executive Summary, p. xxv.

[1072] ESOS Evaluation Report, p. 153.

[1073] DIMIA answers to Questions on Notice, received 11 October 2005, p. 2. Note that as a result of the case of Uddin V MIMIA [2005] FMCA 841 (7 June 2005), some of these visa cancellations may have been ineffective and subsequently reversed. See DIMIA, answers to Questions on Notice, received 11 October 2005, p. 65.

[1074] ESOS Evaluation Report, p. 153.

[1075] Ms Michaela Rost, Submission 220, p. 11. DIMIA confirmed this statistic in answers to Questions on Notice, received 11 October 2005, pp 2-3.

[1076] DIMIA Annual Report 2004-05, p. 66; see also DIMIA, Committee Hansard, 11 October 2005, p. 12.

[1077] DIMIA Annual Report 2004-05, p. 66.

[1078] Committee Hansard, 11 October 2005, p. 10.

[1079] Ms Michaela Rost, Submission 220, p. 11.

[1080] ESOS Evaluation Report, p. 153; see also Ms Michaela Rost, answers to Questions on Notice, 28 October 2005, p. 9.

[1081] ESOS Evaluation Report, p. 153; see also DIMIA answers to Questions on Notice, 11 October 2005, p. 66 and DIMIA answers to Questions on Notice received 5 December 2005, p. 105. This compares with the evidence of Ms Michaela Rost, Committee Hansard, 27 September 2005, p. 3 – Ms Rost estimated that only 5-10% of students who appeal their visa cancellations are successful.

[1082] ESOS Evaluation Report, p. 153.

[1083] DIMIA answers to Questions on Notice received 5 December 2005, p. 105.

[1084] DIMIA answers to Questions on Notice received 5 December 2005, p. 105.

[1085] ESOS Evaluation Report, p. 153.

[1086] Ms Michaela Rost, Submission 220, pp 24-25.

[1087] [2005] FMCA 841 (7 June 2005).

[1088] DIMIA answers to Questions on Notice, received 11 October 2005, p. 65.

[1089] DIMIA answers to Questions on Notice, received 11 October 2005, p. 65.

[1090] DIMIA answers to Questions on Notice, received 11 October 2005, p. 65.

[1091] DIMIA answers to Questions on Notice, received 31 October 2005, p. 2.

[1092] DIMIA answers to Questions on Notice, received 11 October 2005, p. 65; also DIMIA answers to Questions on Notice received 5 December 2005, p. 108; and DIMIA website 'Important Information for students who have had their student visas automatically cancelled between May 2001 and 16 August 2005', at http://www.immi.gov.au/study/overview/student_visa_cancel.htm (accessed 31 October 2005).

[1093] See Joseph Kerr, 'Another bad mark for Immigration', Sydney Morning Herald, 16 September 2005, p. 1; also Jewel Topsfield, 'Immigration bungle sends 8000 students home', The Age, 16 September 2005, p. 1.

[1094] [2005] FCAFC 132 (23 July 2005).

[1095] Law Institute of Victoria, Submission 206, p. 12; referring to [2005] FCAFC 132 (23 July 2005); see also Ms Michaela Rost, Submission 220, pp 17-19.

[1096] For further information on DIMIA's 'compliance field operations' in relation to students, see DIMIA, answers to Questions on Notice, received 11 October 2005, pp 67-68.

[1097] [2005] FCAFC 132 (23 July 2005), see discussion by Wilcox J at para 7.

[1098] [2005] FCAFC 132 (23 July 2005), para 11.

[1099] [2005] FCAFC 132 (23 July 2005), para 13.

[1100] [2005] FCAFC 132 (23 July 2005), para 16.

[1101] [2005] FCAFC 132 (23 July 2005), para 17; see also Ms Michaela Rost, Submission 220, pp 17-19 and Committee Hansard, 27 September 2005, p. 7 and Ms Jockel, Law Council of Australia, Committee Hansard, 27 September 2005, p. 81.

[1102] [2005] FCAFC 132 (23 July 2005), para 18.

[1103] DIMIA answers to Questions on Notice received 5 December 2005, p. 34.

[1104] DIMIA answers to Questions on Notice received 5 December 2005, p. 34.

[1105] DIMIA answers to Questions on Notice received 5 December 2005, p. 35.

[1106] Committee Hansard, 27 September 2005, p. 3.

[1107] Ms Michaela Rost, Submission 220, p. 11.

[1108] Ms Michaela Rost, Submission 220, p. 1 and Committee Hansard, 27 September 2005, p. 3.

[1109] Ms Michaela Rost, Submission 220, p. 11.

[1110] Committee Hansard, 27 September 2005, p. 3.

[1111] Ms Michaela Rost, Submission 220, p. 11 and Submission 220A, p. 1; also Committee Hansard, 27 September 2005, p. 3.

[1112] Budget Estimates May 2005, answer to question on notice No. 28.

[1113] DIMIA answers to Questions on Notice received 5 December 2005, p. 105.

[1114] DIMIA answers to Questions on Notice received 5 December 2005, p. 104. DIMIA noted that, of these people, 17 remained in immigration detention as at 21 October 2005. Note that DIMIA has also previously advised that around 2,310 former student visa holders were detained between 1 January 2001 and 22 July 2005: Budget Estimates May 2005, answer to question on notice No. 28.

[1115] Answers to Questions on Notice, received 31 October 2005, p. 4; see also Ms Michaela Rost, Submission 220, pp 27-33.

[1116] DIMIA answers to Questions on Notice, received 31 October 2005, pp 3-4; see also Ms Michaela Rost, Submission 220, p. 1.

[1117] Ms Michaela Rost, Submission 220, p. 20. Bridging visas are also discussed in Chapter 8.

[1118] Ms Michaela Rost, Submission 220, pp 25 and 28.

[1119] DIMIA answers to Questions on Notice, received 31 October 2005, p. 3; see also pp 2-3 for further evidence in relation to the process for the waiver of detention debts.

[1120] Committee Hansard, 11 October 2005, p. 9.

[1121] See Senate Legal and Constitutional Legislation Committee report into the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997 – additional comments by Australian Democrats and by Senator B.Cooney

[1122] This includes 81 'standard' visa classes and another 6 "operation of law" visa classes (s.32 Special Category visa, s.33 Special Purpose visa, s.34 Absorbed Person visa, s.35 Ex-citizen visa, s.38 Criminal Justice visa, s.38A Enforcement visa) and also a Special Circumstance visa, which do not have the usual identifier like other visa classes.

[1123] For example, the subclass 457 visa for skilled temporary business entrants

[1124] Mr Metcalfe, Additional Estimates Hansard, 13 February 2006, p . 7.

[1125] Government Senators note that the Department of Immigration and Ethnic Affairs' 1992-1993 Annual Report acknowledged that, reflecting increases in compliance activity, there was an increase in the number of people passing through immigration detention centres in that period, as compared with the previous financial year (p. 77).

[1126] DIMA, answers to questions on notice, 7 February 2006 – provide details of the degree to which the use of the internet is used to facilitate visa application processing, including the integrity of such usage and various initiatives to assist employers with the complexities of visas and work permits.

[1127] DIMA, answers to questions on notice, 7 February 2006.

[1128] DIMA, answers to questions on notice, 7 February 2006.

[1129] DIMA, answers to questions on notice, 7 February 2006.

[1130] DIMA, answers to questions on notice, 7 February 2006.

[1131] DIMA, answers to questions on notice, 7 February 2006.

[1132] DIMA, answers to questions on notice, 7 February 2006.

[1133] DIMA, answers to questions on notice, 25 October 2005.

[1134] [2005] FCA 1018 (21/7/05).

[1135] DIMA, answers to questions on notice, 25 October 2005.

[1136] DIMA, answers to questions on notice, 25 October 2005.

[1137] DIMA, answers to questions on notice, 25 October 2005.

[1138] DIMA, answers to questions on notice, 7 February 2006

[1139] DIMIA, Submission 205, p. 5.

[1140] Migration Act 1958, section 4.

[1141] K Cronin et al, Australian Migration Law, Butterworths Australia, 2001, p. 6127.

[1142] DIMIA Submission 205, p. 16. Persons who may be in need of Australia’s protection at the border undergo an entry interview are then by the Onshore Protection area of the Department to determine whether they raise information or claims which, prima facie, may engage Australia’s protection obligations.

[1143] Permanent visas, protection visas and most temporary visas are 'substantive' visas for the purposes of the Act. Bridging visas are not. This distinction is important as it is a requirement for most visa applications made in Australia that the applicant hold or has recently held a substantive visa. Non-substantive visa holders – such as the holder of a bridging visa – cannot therefore meet this requirement. K Cronin et al, Australian Migration Law, Butterworths Australia, 2001, para. 20.500.

[1144] DIMIA, Submission 205, p. 5. The fact that the detail is contained in regulations reflects the need to change the relevant rules often and quickly.

[1145] DIMIA, Submission 205, p.8. As DIMIA explains, they are intended to provide guidance for decision-makers on how the regulations are to be interpreted.

[1146] Migration Act 1958, section 499. There are several policy directions in force and they relate to diverse matters such as assessment of applications for a visitor visa, visa processing priorities, and visa cancellation and refusal on character grounds.

[1147] The outline is drawn from: DIMIA, Submission 205, pp 22-23; K Cronin et al, Australian Migration Law, paragraphs 9.500-95.210; and J Burn and S Reich, The Immigration Kit. A Practical Guide to Australia's Immigration Law, 7th Edition, Federation Press 2005, pp 75-85.

[1148] Sections 51A to 64 of the Migration Act, for example, provides 'a code of procedure for dealing fairly, efficiently and quickly with visa applications'.

[1149] The Act imposes obligations to disclose adverse information where the application relates to a class of visa which may be granted while the person is in Australia and there is a right of review to the Migration Review Tribunal or the Refugee Review Tribunal. In these circumstances, DIMIA must invite an applicant to comment on information that: would constitute a reason or part of a reason for refusing the application; is specific to the person (as opposed to the class of persons to whom the applicant belongs); and was not provided by the applicant for the purposes of the application. This statutory duty does not extend to information or matters the disclosure of which would found an action for breach of confidence or which, in the Minister's opinion, would be contrary to the national or public interest. Other limitations also apply. See Migration Act 1958, sections 5 (definition of 'non-disclosable information') and 57.

[1150] DIMIA, Submission 205 p.19.

[1151] Statutory time limits imposed on applications for protective visas are discussed at paragraph 2.127.

[1152] DIMIA, Submission 205, p.6.

[1153] A more detailed analysis of the application and determination processes for refugee status is contained in the committee's earlier report on Australia's Refugee and Humanitarian Determination Process. See Senate Legal and Constitutional References Committee, A Sanctuary under Review. An Examination of Australia's Refugee and Humanitarian Processes, June 2000, chapters 3 to 6.

[1154] 1951 Convention Relating to the Status of Refugees, Article 1A(2). The definition is the result of the combined effect of the 1951 Refugee Convention and the 1967 Protocol.

[1155] DIMIA, 2003-2004 Annual Report, pp 66-67.

[1156] DIMIA, Fact Sheet 60, Australia's Refugee and Humanitarian Program, 26 August 2005.

[1157] An excised offshore place is a place in Australia – such as Christmas Island - that has been excluded from the migration zone for the purpose of prohibiting people who arrive at such places from making a valid visa application. Unlawful non-citizens who arrive at excised offshore places cannot make a valid application for any visa while they are in Australia. DIMIA, Fact Sheet 65 New Humanitarian Visa, 22 July 2002; DIMIA Submission 205, p. 8.

[1158] DIMIA, Submission 205, p. 30; Burns, The Immigration Kit, pp 399-400; DIMIA, Fact Sheet 65- New Humanitarian Visa, 19 July 2002.

[1159] One exception is Special Humanitarian Program applications for persons in Africa or the Middle East. These must be lodged at the relevant processing centre in Australia.

[1160] Burn & Reich, The Immigration Kit, pp 428-429, DIMIA, Submission 205, pp 30-32.

[1161] Burn & Reich, The Immigration Kit, p. 428.

[1162] Burn & Reich, The Immigration Kit, p. 404.

[1163] DIMIA, 2004-2005 Annual Report, p. 90. In 2003-2004, 78,971 applications were made offshore, an increase of 25% from the previous financial year. DIMIA, 2003-2004 Annual Report, p. 68.

[1164] DIMIA, 2004-2005 Annual Report, p. 88.

[1165] DIMIA Fact sheet 60. Australia's Refugee and Humanitarian Program, 26 August 2005.

[1166] DIMIA, 2004-2005 Annual Report, p. 90. In 2003-2004, 87 percent of offshore applications were finalised within 12 months of lodgement, with 75 percent finalised within 10 months of lodgement. Applications from 67,081 persons were finalised within that program year. DIMIA, 2003-2004 Annual Report, p.68.

[1167] The Migration Act generally requires all persons, including Australian citizens, arriving in Australia to pass through immigration clearance. This typically occurs when a person passes through customs at an airport or port. Non-citizens generally must show evidence of a valid visa and their identity to be immigration cleared. DIMIA, Submission 205, p. 15.

[1168] DIMIA, Submission 205, p. 24.

[1169] DIMIA, Submission 205, pp 26-27, 31-32. The committee understands that the Australian Citizenship Bill 2005 will require three years permanent residence before one can apply for citizenship.

[1170] DIMIA, Submission 205, pp 26-27, 31-32. See also DIMIA Fact Sheet 64, Temporary Protection Visas, 20 November 2005.

[1171] DIMIA, Submission 205, p. 27.

[1172] As a general rule, 'effective protection' is considered by DIMIA to involve the person not only being permitted to remain in the third country without risk of persecution for a Convention reason, but also not being at risk of being refouled to their country of origin where they have a well-founded fear of persecution for a Convention reason. It is not necessary for a country to be a signatory to the Refugees Convention for it to be capable of providing effective protection. It is not necessary for a country or the UNHCR to provide a speedy decision, or for a resettlement or local integration solution to be provided, in order for effective protection to considered to be available. Advice to the secretariat from DIMIA, 15 January 2006.

[1173] DIMIA, Submission 205, p. 24. The rule applies to applications for a further protection visa application lodged after 27 September 2001 (depending on individual circumstances).

[1174] Burn & Reich, The Immigration Kit, p.438.

[1175] Migration Regulations, Regulation 866.222A. There is, however, a power to waive this rule so that a permanent protection visa can be granted, if it would be in the public interest (see Chapter 3).

[1176] DIMIA Fact Sheet 64d, New Onshore Visa Options for Temporary Protection and Temporary Humanitarian Visa Holders, 24 August 2004. DIMIA, Submission 205, p. 24. The changes apply to current and former holders of certain sub-classes of Temporary Protection Visas and Temporary Humanitarian Visas who were in Australia on or before 27 August 2004.

[1177] DIMIA's submission summarises the classes of Bridging visas, established by the Regulations, as follows:

Bridging visa A. It is available to non-citizens who apply for a visa within Australia and who hold another visa (other than a Bridging Visa or Criminal Justice Visa) at time of application. It does not come into effect unless the first substantive visa ceases in which case it serves to keep them lawful until the application is decided.

Bridging visa B. It is available to all Bridging visa A holders who have valid reasons for wanting to travel outside Australia while their substantive visa application is being considered.

Bridging visa C. It is available to applicants who do not hold a visa when they apply for another visa while in Australia, with the exception of people who have been granted a Bridging visa E since they last held a substantive visa.

Bridging visa D. It is a short term bridging visa available to persons who are unlawful or will soon become unlawful and want to make an application for a visa but are temporarily unable to do so; or, who do not want to or are unable to apply for a visa but a compliance officer is not available to interview them.

Bridging visa E. It is available to certain unlawful non-citizens who are located by DIMIA and who may be applying for visas or making arrangements to depart Australia.

Bridging visa F. It enables the release from immigration detention of certain unlawful non‑citizens who may be able to assist with investigations into people trafficking, sexual servitude and/or deceptive recruiting offences.

Bridging visa R. It enables the release from immigration detention of certain unlawful non‑citizens who are awaiting removal from Australia and are invited by the Minister to apply.

The conditions attached to a Bridging visa vary according to the type of visa applied for, the applicant’s immigration status and personal circumstances at the time of application. DIMIA, Submission 205, p.10.

[1178] DIMIA, Submission 205, p. 29.

[1179] The 45 day rule applies to protection visa applications lodged on or after 1 July 1997. DIMIA Fact Sheet 62, Assistance for Asylum Seekers in Australia. 20 November 2003. See also Germov & Motta, Refugee Law in Australia, Oxford University Press 2003, p.69.

[1180] DIMIA Fact Sheet 62, Assistance for Asylum Seekers in Australia. 20 November 2003. Some asylum seekers without work rights may qualify for Medicare if they are the spouse, child or parent of an Australian citizen or permanent resident. Burns, The Immigration Kit, pp 456-457.

[1181] The Asylum Seekers Assistance Scheme is administered by DIMIA through contractual arrangements with the Australian Red Cross Society. In 2002-03, the Scheme assisted 1,865 clients at a cost of $9.566 million. DIMIA Fact Sheet 62, Assistance for Asylum Seekers in Australia, 20 November 2003.

[1182] An example is Bridging visa B. See above.

[1183] The requirements for a valid protection visa application are set out in the Migration Regulations. These include the requirement that an application be made on Form 866. Migration Regulations 1994, Item 1401 of Schedule 1. For further information concerning Form 866 and the requirements for a grant of a protection visa, see Senate Legal and Constitutional References Committee, A Sanctuary under Review, pp 109-114.

[1184] See cases cited in Germov, Refugee Law in Australia, p. 69.

[1185] Burn & Reich, The Immigration Kit, p. 450.

[1186] DIMIA, Submission 205, p. 24.

[1187] DIMIA 2004-05 Annual Report, pp 94-95. Finalisation decisions including primary decisions, visa grants resulting from review tribunal decisions and certain visa cancellation decisions.

[1188] DIMIA, 2004-2005 Annual Report, pp 94-97.

[1189] DIMIA, Submission 205, p.25. DIMIA's target for processing of protection visa applications from persons placed in immigration detention is to finalise 60% of those applications within 42 days of lodgement (excluding periods where there are factors outside of DIMIA's control that prevent finalisation). DIMIA, 2004-2005 Annual Report, p. 96.

[1190] DIMIA, 2004-2005 Annual Report, p. 96. See also Senator the Hon Amanda Vanstone, 'DIMIA meets commitment to Protection Visa applicants', Media Release, 1 November 2005. See also DIMIA, Answer to Question on Notice, 5 December 2005, p. 40.

[1191] Christmas Island, Thursday Island, Horn Island and Ashmore and Cartier Islands and the Cocos (Keeling) Islands, Australian sea installations and Australian resource installations are excised offshore places. The Migration Regulations may also prescribe certain islands or external territories as excised offshore places (section 5 definition).

[1192] Migration Act 1958, sections 189(3) and (4).

[1193] Migration Act 1958, section 198A.

[1194] See DIMIA Submission 205, pp 28-29.

[1195] DIMIA Submission 205, p. 29.

[1196] DIMIA, Submission 205, pp 29-30.

[1197] DIMIA, Managing the Border: Immigration Compliance 2003-2004 Edition. (Commonwealth of Australia, 2005).

[1198] Michael Gordon 'Detainees leave Nauru" Sydney Morning Herald, 14 October 2005, p. 5. Michael Gordon, 'Asylum Seekers: Vanstone promises quick response to Nauru report', The Age, 30 September 2005, p. 6.

[1199] Minister Vanstone, 'Update on Nauru', Media Release, 14 October 2005.

[1200] See Senate Legal and Constitutional References Committee, A Sanctuary under Review, pp 76‑77.

[1201] Senate Legal and Constitutional References Committee, A Sanctuary under Review, pp 76-77. Ms Birss, Refugee Advocacy Service of South Australia, Committee Hansard, 26 September 2005, pp 14, 26.

[1202] Submission 138, p. 2.

[1203] Germov & Motta, Refugee Law in Australia, p. 522.

[1204] Germov & Motta, Refugee Law in Australia, p. 522.

[1205] Ms Biok Committee Hansard, 28 September 2005. p. 62.

[1206] The following paragraphs are drawn from a summary prepared by the Parliamentary Library of four recent inquiries - into Australia's onshore asylum system, aspects of immigration detention and discretionary ministerial powers to grant visas. Adrienne Millbank, Parliamentary Library Memorandum, 22 September 2005, p. 3.

[1207] Senate Legal and Constitutional References Committee, A Sanctuary under Review: the operation of Australia's Refugee and Humanitarian Program, report tabled June 2000.

[1208] Senate Legal and Constitutional References Committee, A Sanctuary under Review, para 3.41.

[1209] Senate Legal and Constitutional References Committee, A Sanctuary under Review, para.3.31.

[1210] Adrienne Millbank, Parliamentary Library Memorandum, 22 September 2005, pp 1-3.

[1211] Government response to the Senate Legal and Constitutional References Committee report:' A Sanctuary under review, an examination of Australia's refugee and humanitarian determination process', Australian Government, 8 February 2001. See Appendix 6.

[1212] Adrienne Millbank, Parliamentary Library Memorandum, 22 September 2005, p. 3.

[1213] Australian National Audit Office, Management of the Processing of Asylum Seekers, Audit Report No. 56, 2003-2004. The committee had written to the Auditor-General to draw his attention to the committee's recommendations.

[1214] Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 11.

[1215] Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 15.

[1216] Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 15.

[1217] Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 49; DIMIA, 2004-2005 Annual Report, p. 95.

[1218] The ANAO proposed that the new performance indicator or measure incorporate DIMIA's formal quality assurance program which examines aspects such as accuracy of records, the level of documentation and whether correct checks had been carried out. Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 50.

[1219] Australian National Audit Office, Management of the Processing of Asylum Seekers, p. 50.

[1220] Mr Meert, ANAO, Committee Hansard, 7 October 2005, pp 3-4, 12.

[1221] The report can be found at http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/1999-02/refugees/report/index.htm

[1222] The report can be found at http://www.aph.gov.au/senate/committee/minmig_ctte/report/b01.htm

[1223] RANZCP, Submission 205, p. 49.

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