Complaints and inquiries
One preliminary inquiry about ASIO was open as at 30 June 2010 and carried over into the 2010–11 reporting period. This preliminary inquiry was finalised on 27 July 2010.
During 2010–11 IGIS initiated three new preliminary inquiries about the activities of ASIO. This compares with 12 preliminary inquiries into ASIO which were initiated and/or concluded in the 2009–10 reporting period.
One of these preliminary inquiries involved concerns about the processing of security assessments for an individual seeking a visa (general details of this case are summarised elsewhere in this chapter).
The other two preliminary inquiries revolved around the purported misconduct of ASIO officers in their dealings with members of the public.
A member of the public contacted IGIS alleging that ASIO officers had approached members of their family and associates and in doing so had acted in an unprofessional and inappropriate manner. Following investigation of these concerns, IGIS was satisfied that the complaint was not made out. Investigation of this complaint also highlighted the value of accurate and contemporaneous record keeping by agencies.
In addition to these preliminary inquiries, the Prime Minister asked me in December 2010 to conduct an inquiry into the actions of relevant Australian government agencies in relation to the arrest and detention overseas of Australian citizen, Mr Mamdouh Habib, between 2001 and 2005.
My inquiry into these matters, which was ongoing as at 30 June 2011, involved significant interaction with ASIO. Additional information about the conduct of this inquiry is provided in the General Matters chapter of this annual report.
I did not initiate any full inquiries into ASIO in the 2010–11 reporting period.
In addition to the above inquiries, the office received a number of contacts and complaints specifically about ASIO from individuals seeking to reopen former complaints, or making new complaints raising specific concerns.
While each case is considered on its merits, none were judged to have reached the threshold which necessitated the conduct of a formal inquiry. For the most part, these contacts and complaints were handled administratively at the desk officer level.
In addition to these complaints, we received 1111 complaints from individuals who raised concerns about the timeliness with which ASIO processed immigration related security checks which is comparable to the 1015 such complaints received in 2009–10.
The significant volume of complaints of this kind over the last two reporting periods caused us to reflect seriously on the reasons why this figure remained so high, whether the processing of complaints of this kind led to the actual identification and correction of errors or simply added another layer of process which of itself caused delay, and whether we should change our current approach. In summary, I concluded that our current approach did little to actually resolve complaints and could possibly be diverting ASIO resources.
The manner in which we handled these complaints in 2010–11, and how we plan to deal with these types of complaints in the future, is discussed below.
Alleged misconduct by ASIO staff
A foreign national visiting Australia contacted IGIS alleging that ASIO staff had ‘interrogated’ them at length when they had sought to provide sensitive documents.
The complainant also alleged that ASIO had then breached an undertaking to maintain confidentiality by contacting a foreign government to corroborate the complainant’s identity.
Investigation of the complaint indicated that the complainant had been interviewed by ASIO staff for less than one hour in total. Although the complainant was not informed they could leave at any time, it was noted they had volunteered the information they provided by presenting at the building and offering the documents.
In relation to the allegation that ASIO had breached confidentiality, the IGIS found that, while the complainant had been informed that ASIO would not publicly release any information that had been provided, it was clear that the information provided would need to be validated.
IGIS determined there was no evidence to support the allegation that the interview was conducted in an illegal, inappropriate or unprofessional manner.
Investigation of the complaint highlighted the value of accurate and contemporaneous record-keeping by agencies. The efficient provision of detailed documentation to the IGIS by ASIO enabled a resolution to the complaint to be reached in a timely manner.
ASIO security assessments – immigration related complaints
IGIS continued to receive a high level of complaints in 2010–11 from persons expressing concern about the timeliness with which security assessments for applicants for long and short term visas were being completed.
There are a number of reasons why we believe the level of complaint remained at a high level, including:
- it is Government policy that all Irregular Maritime Arrivals (IMAs) who enter Australia are required to be the subject of security assessment
- the volume of IMAs reaching Australia has put stress on the government agencies who are required to process their claims for refugee and permanent residency status
- the role and functions of IGIS are becoming better known to visa applicants, migration agents and advocacy groups.
The Department of Immigration and Citizenship (DIAC) has overall responsibility for the administration of visas being granted to people wishing to enter Australia. As part of the visa process, DIAC initiates a number of identity, health, character and security checks. Where visa applicants, or persons acting on their behalf, become concerned about the time taken to process a visa application, they will usually approach the nominated DIAC case officer dealing with the application to obtain an update.
If DIAC requires additional information before it can make a decision, the DIAC case officer will ordinarily advise the applicant or their representative that the department is awaiting input from an external agency. This is frequently construed as meaning that DIAC is awaiting a security assessment from ASIO, but as indicated above, there are a range of checks which need to be undertaken, not just security checks.
While some DIAC case officers do directly refer applicants to this office to inquire about security assessments (suggesting by implication that ASIO is involved) many applicants or their representatives assume that a delay is security related and contact this office directly.
It was our practice during 2010–11 to make inquiries of ASIO as to whether or not they had been asked to undertake security assessments in respect of individuals who had been referred to our office, or who had approached us directly.
In doing so we would seek information as to whether or not ASIO had actually received a request to conduct a security assessment, and if so, we could make an assessment as to whether it had acted unreasonably or had made a processing error. However, we do not make judgments about the merits of any particular security assessment.
I have also been firm in my view that IGIS should not request ASIO to change the priority of a case, or make the process quicker for a particular applicant, as this could lead to claims of queue jumping, and unfairly delay the processing of applications from individuals who have not raised complaints with this office.
We do not ordinarily confirm to complainants that they have or have not been the subject of a security assessment by ASIO, unless this has already been confirmed to them by an external agency, or we were to find a significant issue of concern involving ASIO which would justify this office doing so.
If we are satisfied that there is no evidence of error on the part of ASIO, we will advise complainants that they should seek an update on the progress of their case from the relevant DIAC case officer.
Although we try to be as forthcoming as possible with complainants or their representatives, there is often good reason for this office to be cautious in what information we reveal to complainants. We also make strenuous efforts to rein in expectations about the assistance this office can realistically provide.
In my time as Inspector-General I have taken complaints about delays in processing security assessments seriously and devoted the equivalent of two full time resources to the handling of these complaints during 2010–11. This has been a significant impost on an office comprising only 14 people.
The incidence of error which we have identified in the processing of security assessments for long and short term visa applicants over the past two years has been minute. While delay in the completion of security assessments has been a cause of genuine concern to me, I am satisfied that this has not been caused by error or improper processes by ASIO but has been largely a by-product of external factors over which it has limited control.
The following case studies are drawn from some of security assessment related preliminary and administrative inquiries which I initiated or completed in 2010–11.
Compounding effect of administrative delays on visa applicant
I received a series of complaints between October 2008 and May 2010 from a foreign national who entered Australia on a student visa in September 2007, who alleged that his application for permanent residency had been adversely affected due to a series of administrative errors by ASIO and another government agency.
I decided to pursue this matter as a preliminary inquiry in May 2010, and concluded my investigation into it early in the 2010–11 reporting period.
As a result of my investigation ASIO confirmed that a request for a security assessment of the complainant had been referred to it by DIAC in September 2007 but due to several administrative errors, there was a significant delay in the assessment being completed.
Once these issues had been identified, and requisite information had been obtained from several external sources, there was a further delay of two months before the applicant was interviewed to clarify some of the information obtained from the external checks. This was due, in part, to the applicant travelling to their country of origin for several weeks.
The security assessment was eventually finalised in June 2010. By this time, the skilled visa that the applicant had originally applied for was no longer available as the Government had capped the numbers of visas it intended issuing in this visa category.
My office liaised with ASIO, DIAC and the Commonwealth Ombudsman to seek a fair outcome for the complainant who was disadvantaged as a result of actions for which he was not responsible. We also worked closely with ASIO to ensure the currency of the security assessment for the time it would take DIAC to process a new visa application from the complainant.
This complaint highlighted issues relating to ASIO and DIAC communication with each other and with complainants. It also identified areas where improvements could be made by ASIO in terms of the case management of their processing of security assessments for DIAC.
The outcome of this investigation, along with our experience in processing a large number of security assessment related complaints, encouraged me to develop a new inspection activity which I plan to adopt in 2011–12 which will proactively examine ASIO’s processing of security assessments, rather than being complaints driven.
Apology by ASIO to complainant affected by administrative errors
A state-based Legal Aid agency lodged a complaint with my office in August 2010 in relation to a client who had applied for a Protection Visa in February 2008. An administrative inquiry by my office confirmed that ASIO had interviewed the individual concerned in September 2009 and had completed their assessment of the individual in October 2009, but due to an administrative error this advice was not provided to DIAC until August 2010.
Although my office had previously offered apologies to complainants on behalf of ASIO when our administrative inquiries had identified error on the part of ASIO, I requested in this case that ASIO apologise directly to the complainant.
The Director-General of Security agreed that this was appropriate and dispatched such a letter in September 2010.
Delays in processing assessments for non-IMA visa applicants
A foreign national who was detained as an illegal air arrival to Australia was placed into an immigration detention facility in August 2009. Soon after this, he applied for a protection visa and had his case referred to ASIO for a security assessment.
In March 2010 the individual concerned contacted me to complain about the length of time it was taking to complete the security assessment.
I was advised shortly afterwards that at that time ASIO was focussing on processing security assessments for irregular maritime arrivals and that other categories of visa applications would be progressed as quickly as available resources permitted.
I raised this case in discussions with senior ASIO managers underlining my concern about the importance of making timely assessments, especially for applicants who are being kept in detention.
ASIO advised me in September 2010 that they had rearranged some of the resources available to process visa related security assessments and that they had put in place a dedicated team which would focus specifically on processing complex assessments for applicants who were not irregular maritime arrivals.
In April 2011, DIAC and ASIO began to implement a new approach to the processing of IMAs, which saw a reduction in the number of persons awaiting clearance being held in immigration detention. We noticed a commensurate decline in the number of complaints by persons in this situation towards the end of the reporting period.
Given that this office cannot conduct a merits review of security assessments and is in effect limited to examining issues of process and procedure, I have also seriously considered whether this office is actually adding any value or is inadvertently contributing to the problem by regularly seeking information and advice from ASIO staff, who might otherwise spend that time processing security assessments.
I have decided that rather than being reactive to individual complaints we should adopt a more strategic approach and focus on ASIO’s case management and quality control processes, with a view to identifying if there are any underlying systemic issues which require attention.
While individuals should still have recourse to my office if they have concerns that they have been misidentified, or that their position has been misrepresented, or they can point to a serious defect in process, I will no longer process complaints which are purely about delay, where an application for long-stay visa has been lodged less than 12 months previously.
I wrote to the CEO of the Migration Industry Association, the Secretary of DIAC, the Commonwealth Ombudsman and the Director-General of Security in late June 2010 to inform them of this changed approach, and have also updated the advice we provide to prospective complainants on the IGIS website.
The resources which are freed up from taking this action will be devoted to conducting regular inspections of ASIO’s systems in 2011–12, as described above.
During 2010–11 I and a small number of OIGIS staff delivered several presentations which were tailored for newcomers to ASIO and other ASIO audiences. We also spoke to ASIO staff when making presentations to various courses where participants were drawn from across all AIC agencies.
The delivery of these presentations exposes us to a greater range of ASIO personnel than we would encounter through our inspection activities, and provides a good opportunity to explain the role and functions of our office, and our expectations of agency staff on matters of professionalism and ethical conduct.
Several OIGIS staff also attended short courses run by ASIO, or to which ASIO made a significant contribution.