Referral of the Inquiry
On 21 June 2005, the Senate referred to the Legal
and Constitutional References Committee an inquiry into the administration and
operation of the Migration
Act 1958. The inquiry was to report by 8 November 2005.
On 6 October 2005 the
Senate agreed to extend the reporting date to 1 December 2005, The Senate subsequently agreed to
further extend the reporting date to 21
December 2005. The committee subsequently resolved to table its
report on the first sitting day in 2006.
These extensions arose for
a number of reasons: the considerable amount of material to presented to the
committee; the significant public interest in this inquiry; and the committee's
need to thoroughly consider the evidence it has received; as well as the committee's
heavy workload and several administrative and procedural matters which diverted
the committee’s time and attention.
The committee's terms of
reference were to inquire into:
- the administration
and operation of the Migration Act 1958,
its regulations and guidelines by the Minister for Immigration and
Multicultural and Indigenous Affairs and the Department of Immigration and
Multicultural and Indigenous Affairs, with particular reference to the
processing and assessment of visa applications, migration detention and the
deportation of people from Australia;
- the activities and
involvement of the Department of Foreign Affairs and Trade and any other
government agencies in processes surrounding the deportation of people from Australia;
- the adequacy of
healthcare, including mental healthcare, and other services and assistance
provided to people in immigration detention;
- the outsourcing of
management and service provision at immigration detention centres; and
- any related
Background to the inquiry
The decision to instigate the inquiry arose in particular
from the handling by the Department of Immigration and Multicultural and
Indigenous Affairs (DIMIA) of two cases: the wrongful detention of an
Australian resident, Ms Cornelia
Rau, and the improper deportation of an
Australian citizen, Ms Vivian
Solon. As is explored in greater detail in
Chapter 1, these instances of maladministration reflected widespread public
concern at many aspects of DIMIA's operations with respect to, among other
things, detainees and asylum seekers.
This report also reflects the latest instance of a long
running public and parliamentary scrutiny of Australia's
immigration system. The report is written in the light of the earlier evidence
and findings of this committee's June 2000 report A Sanctuary under Review: An examination of Australia's Refugee and Humanitarian Determination
Processes, and the 2004 report of the Senate Select Committee on
Ministerial Discretion in Migration Matters.
Readers are also referred to the reports of the Senate Legal
and Constitutional Legislation Committee which explore in detail a number of
the legislative changes to the Migration
Act 1958 over time, and which form something of a legislative history of
Scope of the inquiry
Evidence received by the inquiry was primarily concerned
with the effectiveness, efficiency and equity of the existing onshore refugee
program and so-called ‘humanitarian program’, and of detention and removal of
persons without a visa. Therefore, there is little focus non-humanitarian
aspects of the Act although some of the recommendations do relate to those
The committee received submissions and heard evidence from
individuals affected by departmental or Refugee Review Tribunal (RRT)
decisions, and Federal and High Court decisions, many of whom had made requests
to the Minister under section 417 of the Migration Act. Although the committee found many of these individual cases
raised questions about access to appropriate services, it had resolved that it
would be inappropriate for a Parliamentary Committee to intervene in or pursue
claims concerning any individual case. Instead, where matters raised were
within the terms of reference, they were taken into account in formulating our
conclusions and recommendations.
Evidence concerning the Department
of Foreign Affairs and Trade
The committee's terms of reference included an examination
of the activities and involvement of the Department of Foreign Affairs and
Trade and other government agencies in processes surrounding the deportation of
people from Australia.
The committee received little evidence on this issue. This was due in part to
the inquiry by the Senate Foreign Affairs and Trade Committee into asylum and
protection visas for consular officials and the deportation, search for and
discovery of Vivian Solon.
A particular focus for that inquiry – which was conducted in parallel with this
inquiry – was DFAT's involvement in the deportation, search and discovery of Ms
Solon. This committee did not see the need
to cover the same ground, especially in light of the focus of that inquiry and
the evidence presented to it concerning DFAT's involvement in the deportation
process. The committee endorses the findings and recommendations of the Senate
Foreign Affairs and Trade Committee (which are set out in Appendix 8 to this
Conduct of the inquiry
The Committee advertised the inquiry in major national and
state/territory newspapers on 29 June
2005, as well as writing directly to a large number of individuals
and groups including non-government organisations, law associations, academic
and specialist lawyers, community legal groups, and groups with a special
interest in refugee matters. The committee received 234 submissions, and a number of exhibits.
The committee held public hearings in Adelaide
on 26 September 2005, Melbourne
on 27 September 2005, Sydney
on 28 and 29 September 2005,
and Canberra on 7 and 11 October
and 8 November 2005 amounting to 478 pages
A significant number of questions asked by Senators at these
hearings were placed or taken on notice by witnesses, particularly government
witnesses. Answers were still being received in January 2006, with responses
from GSL finally received on 18
The committee wishes to thank all those who provided written
and oral evidence, and who have provided additional information and
supplementary submissions. The committee also notes its appreciation of the assistance
provided by DIMIA officers preparing submissions, giving evidence before the
committee on several occasions, and responding to numerous questions on notice
and requests for additional information.
The committee had the benefit of making visits to the
Villawood Immigration Detention Centre in Sydney.
The Committee thanks DIMIA and the contractor, GSL Pty Ltd for facilitating
these visits. Although the Committee did not have the opportunity to visit
other Immigration Detention Centres, some Committee members had visited other
facilities, including during the course of this inquiry.
As well as the public hearings, the committee also held one in camera hearing, which assisted it
considerably in its understanding of general and specific issues. The issue of
privacy and security of individuals was uppermost in committee consideration
during this inquiry, and the use of in
camera hearings enabled free discussion on a number of matters.
Issues relating to confidentiality
and restricted documentation
Departments, individuals and their representatives provided
the committee with substantial amounts of material, much of which was
classified as confidential, or it was requested that publication be restricted.
As noted above, in inquiries of this type, the committee is
particularly aware of the need to protect personal information and therefore decided
to omit or treat as confidential any such personal information, especially
concerning asylum seekers, provided in submissions.
Structure of the report
The terms of reference of the report could have been dealt
with in several ways. However, a format was decided whereby certain of the
terms of reference are discussed across several chapters (as, for instance, the
issue of international obligations), and others are dealt with primarily in a
single chapter – for example, the issues of deportation and removal.
Chapter 1 considers what is, in the committee's view, a
fundamental question in the administration of the Migration Act—that of the
nature of the Minister's responsibility for the actions and administrative
'culture' of their department.
Chapters 2, 3 and 4 then assess the migration process in
roughly the order in which an applicant will encounter them: initial
application, secondary review procedures, and the exercise of ministerial
The remaining chapters then deal with particular aspects of
the process: Chapters 5 and 6 look at the policy of mandatory detention in
policy and practice; Chapter 7 examines the outsourcing of the management of
immigration detention centres; Chapter 8 examines temporary protection visas
and bridging visas; Chapter 9, the administration of removal and deportation;
and Chapter 10, student visas.
All references to submission page numbers are to the page
numbers as they appear in printed volumes of submissions. References to Hansard transcripts of evidence are
generally to the final versions of transcripts.
Some references have been made in footnotes to in camera evidence or to documents
provided by departments or from other sources, which are considered
confidential. The references have been made to note for the record the location
of the source. However, this evidence is not publicly available.
Senator Trish Crossin
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