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Legal and Constitutional Affairs Committee - Outcome 4

Estimates & Committees
Sarah Hanson-Young 28 Mar 2011

Outcome 4:

Senator HANSON-YOUNG-I gave some notice before, when we were on outcome 2, around the question of the numbers of days, months or years that people had been held in detention. Do you have those details?

Ms Wilson-Do you want me to do it by percentage or by number?

Senator HANSON-YOUNG-Numbers, please.

Ms Wilson-As at 4 February, 29 people had been in detention for seven days or less; 300, one week to a month; 1,095, one month to three months; 1,643, three months to six months; 3,111, six months to 12 months; 422, 12 months to 18 months; and 34, 18 months to two years; 25, greater than two years.

Senator HANSON-YOUNG-Of those people, is there anyone who the department would deem, at this stage, to be detained indefinitely because there is not some visible resolution?

Mr Metcalfe-No, Senator.

Senator HANSON-YOUNG-How many people have been found to be in need of protection, assessed under the protection framework, but are still awaiting their ASIO clearance?

Mr Fleming-There are around 900.

Senator HANSON-YOUNG-Out of those 900 people, are there any time limits on how long those people should wait until they get an answer on where their case is up to in relation to the ASIO assessment?

Mr Fleming-There is no time limit set. We are not able to grant a visa until we have a security assessment.

Senator HANSON-YOUNG-That would then be indefinite, would it not?

Mr Fleming-We do not have a definite date.

Senator HANSON-YOUNG-No-so it is indefinite.

Mr Fleming-In terms of having a hard date, yes.

Senator HANSON-YOUNG-At this stage, those 900 people are being held indefinitely because there is no time limit or time frame by which ASIO needs to deliver an answer on their security clearance?

Mr Fleming-That is correct.

Senator HANSON-YOUNG-In relation to how the immigration department and ASIO interact on these people's cases, is there any type of information that the department gets about where things up to or even if their case has progressed at all? Do you as a department have any ability to know in order to then be able to keep detainees up-to-date with their progress?

Mr Fleming-I do not believe we get progress information in that way. There is a process whereby we can request that particular cases be prioritised, but we basically get from ASIO the security assessment when they have finalised their assessment.

Senator HANSON-YOUNG-So what type of information do you give a case manager to help with managing the case of somebody who is one of these 900 people who are in detention? They have gone through a process where they have always been allocated a case manager, and now, if they have gotten to this point where you have already assessed them as needing refugee protection, and now it is just left up to ASIO, what type of information does the case manager have to be able to inform and speak with and advise their clients?

Ms Larkins-The case manager does not just engage on immigration processing, they engage on a range of things.

Senator HANSON-YOUNG-Of course.

Ms Larkins-But they would basically tell the client that we are awaiting a security assessment so that is the nature of the information.

Senator HANSON-YOUNG-And that is all those immigration department case managers can say, 'We're just waiting on ASIO.'?

Ms Larkins-That is right. We will tell them exactly where they are up to in the process and where departmental decisions have been made, and we will say, 'This is where you're up to and we're waiting on a security assessment'.

Senator HANSON-YOUNG-Out of the almost 500 people who have been in detention for more than 18 months, how many of those people would be waiting their ASIO clearance? Do you suspect that would make up the bulk of the 900?

Ms Wilson-I think we would have to take that on notice, Senator.

Senator HANSON-YOUNG-Could you? It must be pretty frustrating for case managers to have to constantly say to clients: 'It's out of our hands; it's out of the department's hands. We're managing the detention facilities, but we have no idea where your case is up to or if it's progressed.'?

Ms Larkins-I do not think it is true to say that they have no idea. Case managers usually have very clear information about where a case is up to. They will not have information that goes to ASIO's internal processes, but they certainly know, 'I'm at this part of the process and I'm awaiting a security assessment.' Case managers deal with people who go through protracted immigration resolution processes commonly.

Senator HANSON-YOUNG-Case managers probably cop the brunt of a whole lot of poor government decisions; frankly, more than they should. Putting that aside, I feel for them. In this particular case it must be pretty difficult to be an effective case manager for a client when your own department has no say on the next stage of somebody's application. It must be extremely frustrating.

Ms Larkins-I guess the nature of the role is they are not decision makers. They communicate with clients about the status resolution process, but they do not make decisions themselves. That is what they are trained to do.

Senator HANSON-YOUNG-Absolutely, and it sounds like they do not work for a department that makes the decision either, so it must be doubly frustrating for those people. How do you think that the 900-odd cases within the immigration detention network at the moment, who are waiting for security clearances under ASIO-what kind of stress do you think that is putting on the facilities at the moment? Nine hundred people is a lot.

Ms Larkins-I am not in a position to comment on that, Senator.

Senator HANSON-YOUNG-Okay. Where would the bulk of those people be housed at the moment? Out of the 900, do we know the breakdown of where they are located?

Ms Wilson-Based on the information I have, they are on Christmas Island.

Senator HANSON-YOUNG-Most of them are on Christmas Island?

Ms Wilson-Yes.

Mr Metcalfe-Senator, I do not want you to leave here with the impression that we are simply not doing anything about this. While the officers have been quite correct in saying that we do not have knowledge of where a particular case might be in ASIO's internal processes, we do have the ability to say to ASIO that, for whatever reason, we believe that certain cases do require priority, and ASIO are responsive to that. We have a very regular dialogue at different levels-from myself and the director-general through to other levels-in which we ensure that ASIO are very aware of the numbers of people that they have and that they are working to make decisions as quickly as they can. No doubt you can pursue that with that organisation tomorrow.

Senator HANSON-YOUNG-I will. I will definitely be pursuing it with the agency.

Mr Metcalfe-I am sure you will.

Senator HANSON-YOUNG-On the issue of the department raising with ASIO cases that they believe need to be expedited or prioritised-the word you used, I believe-what criteria do you use to determine that someone's security clearance needs to be given priority over somebody else's? What are the criteria you put to ASIO to determine that?

Mr Metcalfe-People in detention are the highest priority-they are given higher priority than, say, visa applicants who may not be in detention. We gave evidence earlier that around 40,000 people have been the subject of security-checking requirements in the last year or so. Because people are deprived of their liberty in detention cases-particularly where we have formed the view that the person is owed protection-they are the highest priority. Others may be able to provide advice on whether there are any particular criteria used to give priority within that cohort, but my general awareness was that, on occasion, we do raise particular cases and ASIO are responsive to that.

Senator HANSON-YOUNG-Among the detention cases, what criteria do you use to decide that somebody is a priority?

Ms Wilson-Families and children are given priority within the mix, people who have mental health issues or torture and trauma issues are escalated and we also consider length of time in detention-that also has an effect on prioritisation within that mix.

Senator HANSON-YOUNG-We have spoken numerous times about the length of time it takes to get through cases. We all know that the 90 days has blown well out; you can see that from the figures. There are a variety of reasons, including the various policies that have been spoken about today. Last time we spoke, back in October, we talked about recruitment within the department-to try to put on extra personnel to get through the cases. How many extra staff or positions have been brought on to try to deal with the processing of cases that are within the capacity of the Department of Immigration and Citizenship to deal with?

Mr Metcalfe-I will get the right officers to come to the table. I think Mr Fleming, Mr Allen and Mr Correll might be able to assist. We have certainly increased the number of officers associated with refugee status decision making. Mr Correll will probably have the correct figure or the absolute figure, but I think we are now up to about 160 or 170 officers-

Senator HANSON-YOUNG-In total?

Mr Metcalfe-In total, whose full-time job it is to make assessments. Based upon the number of applicants we have, we believe that that is about the right number. We are now seeing good numbers of decisions being made. There is the additional issue of the new process that commences on 1 March, whereby the role of the departmental officer will be to quickly ascertain if there is a view that the person is a refugee. If there is a concern that the person may not be then, without making a finding per se, the matter is immediately referred through to the independent reviewer. We believe that that will accelerate the process.

It will also have the advantage of ensuring that there is a much greater focus and opportunity for government funded lawyers assisting applicants to present the full case at the beginning of the process because, as we have found many times, the material coming to us for the primary decision has been relatively incomplete or may not have dealt with all aspects. It is only when it goes to review that those issues are fully explored. But Mr Correll might be able to provide some staffing information.

Mr Correll-The overall number of staff engaged in refugee status assessment work is 170. The numbers have been built up over the last 12 months through significant recruitment activity and through the deployment of staff working in other areas of the department into that field. We do think that is about the right number, bearing in mind other factors like accommodation for interviewing and a range of other issues that need to be balanced out in running that.

Senator HANSON-YOUNG-So what kind of increase has that been over the last 12 months?

Mr Correll-It would have been broadly at least an increase of 100, I would have thought. I do not have that precise figure but it would be in that sort of order.

Mr Allen-Over that period we have increased from around 35 RSA assessors to the current figure of around 170.

Senator HANSON-YOUNG-Has the department had discussions about how personnel might need to be or have been increased in being able to conduct the assessments through ASIO? Has the department had any conversations with the other agency in relation to staffing matters?

Mr Allen-Yes.

Senator HANSON-YOUNG-Has the department given any help or have you had any staff transfer from mthe department to ASIO to help with that workload?

Mr Metcalfe-Not to my knowledge. We certainly have provided lots of advice and suggestions in a friendly way. We are certainly aware that that organisation is conscious of its obligations and its need to have the right number of staff dealing with this issue, bearing in mind that it has quite significant security assessment processes for its own staff and there are quite often lead times associated with getting people in place who can undertake this function for it. But I am not sure, Mr Correll, if we have had our staff go over to ASIO.

Mr Correll-On occasions we have had our staff work with ASIO staff. That is not on an ongoing type of arrangement but more an ad hoc basis. I can think of a couple of instances. However, we are in close dialogue with ASIO about how we might be able to work together in more collaborative ways with staffing issues. It is true that there is quite a long lead time for recruitment to ASIO because of their security checking requirements and so we are looking to how the two agencies might work together to achieve a better result in that area and hope to get some developments in that space quite soon. We also try to provide ASIO with as good reporting as we can to show pictures of progress with the overall process of assessments and work closely with them in terms of identifying priority cases, as we have discussed before. Certainly they have experienced challenges with the volumes in their processing.

Senator HANSON-YOUNG-I move on to some questions around the October announcement by the minister in relation to moving at-risk families out of detention facilities into community housing. Does the department expect that all children will be removed from those facilities by June?

Ms Wilson-We are working from the youngest to the oldest, particularly with the unaccompanied cohorts.

We are working well through those. We have worked through the 15- and 16-year olds. Again, that is dependent on arrival numbers and how those proportions are with unaccompanied minors and families, but our intention is to give unaccompanied minors and vulnerable families, including families with young children, priority in that mix.

Senator HANSON-YOUNG-Admittedly, in October there were just over 600 children, whether in family groups or as part of the unaccompanied-minor cohort. Now there are over 1,000. What you are saying is that you are trying to meet the June deadline but you are not sure whether you will get there.

Mr Metcalfe-We are certainly doing our very best. I said in my opening statement this morning that we are very grateful to the Australian Red Cross and to a number of church and community organisations who are working in an extremely productive, cooperative manner. Everyone has the same objective, which is to provide community arrangements for this particular group, but we do need to make sure that those arrangements are properly based and well founded and that they work properly for people. We are starting to see some people now moving into those arrangements, and that number will pick up over the weeks ahead. So we are doing everything we can to meet that deadline. Ms Wilson does make a fair point, though, that since October we have had continuing arrivals of people. I should say that we do not have any children in detention centres; they are held in motels, transit centres and other places. We all agree that community housing is a better place for them. We are very pleased that the Inverbrackie facility now provides housing and accommodation for people, and we are looking forward to getting people into community arrangements.

Senator HANSON-YOUNG-Thank you. As you know, I have been to the Inverbrackie facility, and I do acknowledge that it is better than the Asti Motel.

Mr Metcalfe-We agree, Senator.

Senator HANSON-YOUNG-I have a question about how you prioritise who is coming out and ensure that as many children, whether they are unaccompanied or with family, are released by June. When the minister made the announcement in October, no promise was given that all children would be removed by June. The promise was just that they would be doing whatever they could to get a significant number out.

When you are looking towards that June deadline, what direction have you been given-or what criteria are you using-to say that X number of children will be removed because they fulfil these criteria?

Ms Wilson-As I said, we are working from youngest to oldest. We are also identifying families in which there might be other issues that we need to think about as well. We are working closely with case management and detention staff in each of the centres to identify individuals or family groups who should be given priority. All of that information is then fed through to our national office, where we prioritise the process.

Senator HANSON-YOUNG-If you are identifying vulnerable children, based particularly on age-and I accept that you are working from youngest to oldest-what is the age cut-off at which you say that they are not necessarily in the most vulnerable group?

Ms Wilson-We will keep working through the groups. Are you asking me whether we stop at age 17 or 18?


Ms Wilson-Our view is that we will keep going until the 17-year-old cohort but, as you would appreciate, the age groups keep replenishing themselves with subsequent arrivals.

Senator HANSON-YOUNG-A number of different reports have come out of late, in particular the report commissioned by the Human Rights Commission after they made their visits. They have done Christmas Island, the Darwin facilities and of course Leonora. And then there is the report that was released publicly by the Ombudsman. Is the government going to be responding to any or all of those reports and, if so, within what kind of time frame?

Ms Wilson-We have largely responded to all of them. Regarding the Ombudsman report, there is also a departmental response on the website, and we have an arrangement with the Human Rights Commission whereby they will give us a report two weeks ahead and give us an opportunity to respond. We will lodge both their report and our response on the website.

Senator HANSON-YOUNG-So what is on the website is the official government response?

Ms Wilson-That is right.

Senator HANSON-YOUNG-Out of the recommendations that have been given by those reports, have any been actioned by the department or taken up-and this might be a question for the minister-as recommendations the government will act on?

Ms Wilson-Every time the Ombudsman or the Human Rights Commissioner visits a facility they do an entry briefing and an exit briefing. Many of the things identified can often be fixed on the spot-they do not take a lot to fix. There is not a significant policy change required and they will be actioned straight away. The Ombudsman report comments on the fact that there have been significant improvements since the visits over the last 12-month period. That is the way we tend to do it. We do not wait for the report; we talk to people while we are visiting and try to do what we can in response to the issues.

Senator HANSON-YOUNG-So out of the recommendations in those public reports, are there any the government has outright rejected?

Mr Metcalfe-We would need to check to give a complete answer. For example, it is more or less the first recommendation from each Human Rights Commission report that it does not believe that detention of asylum seekers should occur at all or, if so, it should only happen in extremely limited circumstances. The government has a clear policy position. In fact, there is a clear legal position in relation to that. There are some areas where there is simply a respectful difference of opinion on issues of policy but on many practical issues-and we very much welcome scrutiny by the Ombudsman and the Human Rights Commission as a very important part of our accountability-we become aware of the issue, we talk about it with them and it is fixed by the time the report comes out, as Ms Wilson has said.

Senator HANSON-YOUNG-Can I have the exact number of unaccompanied minors and also family groups who have been released from the facilities thus far since the October announcement as part of the process to remove them into the community?

Ms Wilson-There have been 160 clients granted residence determination by the minister as of today since the October announcement. My information has it that 78 of them are children and out of that group 37 are unaccompanied minors and the rest would be part of a family group.

Senator HANSON-YOUNG-Since 2008, how many children-and I have asked this every time so I assume you can just add up the numbers-have been born to parents who were being held in some type of detention facility-except that they are not born in detention, they are born in hospital?

Ms Wilson-I will have to find that, Senator.

Senator HANSON-YOUNG-While you are looking for that, maybe somebody else can answer this question relating to detention value number 5 under this government about detention in immigration detention centres being used only as a last resort and for the shortest possible time. I am asking specifically because Ihave an interest in my own children's commissioner bill, which the department has given a submission to, where the department has stated that they detain children only as a last resort. I would like an example from the department of when detention has been the last resort rather than the first resort. When somebody is brought to Christmas Island, where are they put? Is there any example where the department does not detain a child in the first instance?

Mr Metcalfe-The detention values apply to immigration detention generally. There are many cases where we locate people in the community who have overstayed their visa, for example, where detention is not used as an option. We are proud that we have been able to establish new procedures to deal with that. However, the first immigration detention principle is that all unauthorised arrivals will be detained and will be subject to health, security and identity checking. We try to give effect to the apparent conflict between 1 and 5-

Senator HANSON-YOUNG-There does seem to be quite a conflict.

Mr Metcalfe-by essentially ensuring that no child goes into an immigration detention centre. I think it is fair to say that our job has been made very difficult by the number of arrivals. This would be an easy value to apply if we did not have boat arrivals in the numbers that we currently do. But, having said that, we have sought to give effect to it by ensuring that there are alternative places of detention-that is, either in the construction camp on Christmas Island, in motels or in transit centres. For reasons that the minister articulated in October, it is the government's view that we should move as quickly as we can to set up arrangements for people to be held in more normal situations in the community itself, and that is something that we are doing.

Senator HANSON-YOUNG-But you cannot, aside from those people who are being managed by the

department for other visa reasons, cite an example where somebody who has come to Australia seeking

asylum in the first instance is not detained as the first resort.

Mr Metcalfe-No. The first principle of the detention values is the applicable value. But the government's

commitment has been that no child should be held in an immigration detention centre, and that is the case.

Senator HANSON-YOUNG-Ms Wilson, have you got those birth figures?

Ms Wilson-No, I am sorry. I am going to have to take that on notice.

Senator HANSON-YOUNG-Okay, thank you. If you are going to take it on notice, it would be helpful if you could give me the figures for how many children have been born in the detention network since 2008-in particular in the last 12 months.

Ms Wilson-Sure.

Senator HANSON-YOUNG-Thank you. I want to go to the cost of the detention facilities on Christmas Island. We have this conversation quite often about the difficulties of being able to break up the cost of detention on Christmas Island. I would really like to know, based on how the department budgets for these things, what types of costs have been incurred in the last three years on Christmas Island detention facilities and therefore what the projected cost will be for the forward estimates.

Mr Metcalfe-We will have to take that on notice. We are happy to do so. There will probably be a couple of aspects to that. Firstly, there is the cost of operating the centre. The centre, of course, has been expanded and there would be capital works as well. So we need to reflect that in the figures. As far as the forward projections are concerned, that is an extremely speculative figure because it depends very largely on future arrivals that may or may not occur. I am quite comfortable about providing accurate figures on what has happened, but it is far more difficult to get out a crystal ball and see what might happen in the future.

Senator HANSON-YOUNG-Sure. But you are all preparing proposals for the budget, so you would have some idea of what you are projecting.

Mr Metcalfe-Yes. We have had long and happy discussions with this committee in the past about how the forward estimates are produced and how it is not intended that they be seen as a government position on what will occur. Essentially, it has to be a figure derived from the best possible estimate, which is basically a rolling average of the last five years. That rolling average will of course change depending upon the arrivals of the most recent years.

Senator HANSON-YOUNG-I accept that. I am not asking for the figures so I can hit you over the head and say too many boats are coming. I am asking for the figures so that we can get a sense of what is the most cost-effective way of housing people. In that vein, I will give you some other questions on notice around the cost of detention facilities on the mainland and how much it costs to detain and house people in the community setting as well.

Mr Metcalfe-Thank you.

Senator HANSON-YOUNG-My final question is in relation to children going to school. First of all, how many kids are on Christmas Island?

Ms Wilson-There are 314 children as of 14 February.

Senator HANSON-YOUNG-Of those, how many are at school?

Ms Wilson-130 minors attend school at the Christmas Island facility as of 14 February.

Senator HANSON-YOUNG-How many children are housed on the mainland in the various facilities?

Ms Wilson-715 as of 14 February.

Senator HANSON-YOUNG-How many of those attend school?

Ms Wilson-My understanding is that all of the children who have been there for a reasonable period of time are attending school. We have some recent movements to the mainland and those children should be starting school relatively shortly. The children at Inverbrackie, as you know, all started school in the week of 31 January, and that was the last cohort of schooling that we had to get in place. With movements of people from Christmas Island to the mainland there is always a bit of a lag time in catching up getting them into schools when they arrive.

Senator HANSON-YOUNG-How many are at school from the mainland at the moment?

Ms Wilson-I would have to get that number.

Senator HANSON-YOUNG-Okay. Would it be easier to break up the number by facility or do you want to just give me a total?

Mr Metcalfe-We can give you a total, excepting that that will be at a point in time and the figure will move around.

Senator HANSON-YOUNG-I accept that. I understand the survivors from the Christmas Island boat tragedy are all back on Christmas Island as of two days ago, apart from the family who received wide publicity and who were brought to Sydney this week. Are there any other plans to move the survivors to the mainland?

Ms Wilson-Yes. As well as that family you talked about, the minister announced last week that there is another family group with two orphan children who are cousins who will also move this week to the mainland.

Senator HANSON-YOUNG-They will be on the same flight?

Ms Wilson-That is right. That is what we are trying to arrange at the moment. We are working through all the other groups within the survivor group and their supporting family with a view to establishing the right placement on the mainland. The three orphan children and their supporting family are being given priority.

Senator HANSON-YOUNG-There are plans in place to move the existing survivors?

Ms Wilson-That is right. As we said earlier, initial advice was to keep the group together. Having gone through the trauma that was the most appropriate thing to do. We have had child psychiatrists and other medical specialists on island very recently and they are providing us with detailed advice in relation to each of the groups within the survivor group.

Senator HANSON-YOUNG-What is the time frame for the rest?

Ms Wilson-We are hoping to prioritise them because of all the trauma they have been through, but it depends on availability of placements as well.

Senator HANSON-YOUNG-Will they go into community-style housing or will they go to Villawood, Maribyrnong or Inverbrackie? What type of arrangement are you looking at? Are you looking at the community settlement or facilities on the mainland?

Ms Wilson-I think the minister stated that children will be going into community detention arrangements this week. In relation to the rest of the cohort, we are yet to brief. Currently, I guess, our view would be that we are trying to get them into community detention placements as the preferable alternative, but it depends on individual cases and situations.

Senator HANSON-YOUNG-Thank you



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