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The latest Commonwealth Ombudsman’s report into long-term detention took nearly nine months to be tabled in parliament, indicative of the cruel pace at which time moves for asylum seekers. By Sarah Price.
The slow response to indefinite detention
As a minor, Ali arrived in Australia on a dependant provisional Partner visa. His name, like the others in this piece, has been changed.
Year after year, as he remained in limbo, his immigration status inconclusive, he grew with uncertainty into young adulthood. He was convicted of multiple offences, received fines and was sent to youth detention, followed by immigration detention. He was held for a cumulative period of two-and-a-half years.
During an incident in immigration detention, Serco officers held Ali down with mechanical restraints. In footage he can be heard screaming in pain at the force applied by the officers. In response to his screams the officers made further threats, alluding to Ali’s existing injuries.
Serco’s incident report was inconsistent with the video footage. After Ali lodged a complaint, Serco investigated and found all actions taken by officers were “in accordance with established protocols and standards, ensuring the safety and security of both staff and detainee”. The investigation report claimed that “despite the detainee’s assertion of a pre-existing injury, the body cam footage did not reveal any indication” of the injury. This claim was not supported by the footage, in which Ali’s injury was visible.
In a separate incident at the immigration centre Ali was assaulted by other detainees, sustaining injuries that required hospitalisation. He was placed in “high care accommodation”, where he was held for more than 52 days. During this time Ali repeatedly expressed a desire to return to the immigration centre, or to the country from which he arrived as a minor.
Ali’s story is one of 10 documented in the latest Commonwealth Ombudsman’s report on people currently or previously held in immigration detention for two or more years. Commonwealth Ombudsman Iain Anderson reviewed each person’s case progression, detention placement, legal matters and health.
The report, delivered in late October to Tony Burke, the minister for home affairs and minister for immigration and citizenship, was tabled in parliament nearly nine months later.
The report demonstrates the cruel pace at which time moves in immigration detention. Years roll on and become an entire lifetime. The people in the ombudsman’s report have been detained for more than three years, more than two-and-a-half years, eight-and-a-half years, more than eight years, more than four years, six years, more than five years, three-and-a-half years, nine-and-a-half years. People held in Australian immigration detention are required to wait, and wait.
“It is frustrating for organisations like the Refugee Council that want to access up-to-date information around what is happening in detention centres, to be able to highlight through credible agencies like the ombudsman some of our concerns,” Dr Graham Thom, advocacy coordinator at the Refugee Council of Australia, tells The Saturday Paper. “Part of the issue is, if it takes months and months until a report comes out, the government can just respond with, ‘Well, that’s old news and we’ve dealt with that’, without actually having to provide evidence.”
Thom continues: “Detention is time when people are separated from family, separated from community, from supports. These are people who are married to Australian citizens, people who come here at a very young age. There are reasons people’s visas get cancelled but we need to remember that these are human beings.
“What are the mechanisms beyond the god-like power of a minister to actually get people out of detention? Does this person need to spend years and years in detention for administrative reasons? This is not punitive detention. This is administrative detention we are talking about.”
Thom says one of the key issues is the number of people who have spent more than two years in detention, despite the High Court’s finding in NZYQ v Minister for Immigration, which confirmed the key constitutional principle that detention is a form of punishment. The court held that a law authorising administrative detention of a non-citizen by the executive government would only be constitutionally valid if it was reasonably necessary for a legitimate non-punitive purpose. This decision led to the release from immigration detention of about 140 people.
“Then we had a raft of government legislation to try to re-detain people, and all of this is happening without actually addressing the impact of long-term detention,” Thom says. “We still have 66 people in detention who have been there for more than five years. What this report highlights is the complexity of human beings and the impact long-term detention has on individuals, many of whom have a connection to this country, and yet are being forcibly removed.”
Another case: after arriving in Australia on a student visa, Jai was charged with multiple offences. He was held in immigration detention for five years, before his visa was cancelled and he was forcibly deported. On the plane he was physically restrained. To gain Jai’s compliance, chemical restraints were administered without his consent.
The ombudsman notes concern about the use of chemical restraints and the mistreatment of Jai during his removal. “In a Post Action Review the department determined the use of chemical restraint was in accordance with Detention Health Service Provider’s Severe Behavioural Disturbance Guideline … The [Ombudsman’s] Office in its capacity as Commonwealth National Preventive Mechanism has prepared a separate issues paper on this incident, and does not agree with this conclusion, noting the medication used for chemical restraint is not identified in the Guideline, nor were a number of other requirements adhered to.”
In an interview this week with The Saturday Paper, Isobel McGarity, a senior solicitor at the Refugee Advice and Casework Service, says that fair and robust immigration laws should not arbitrarily deprive people of their liberty. “We are calling on the government to treat refugees and people seeking asylum fairly, and not subject them to treatment or punishment that is different to other Australians,” she says. “While many of these cases are very complex, the government has a duty of care to people in detention. Through our experience working with clients we know that immigration detention has an incredibly damaging impact on the physical and mental health of people seeking asylum.”
Raheem, who is also in the ombudsman’s report, arrived in Australia in 2003 on a refugee visa. In the subsequent two decades he moved in and out of immigration detention and was ultimately detained for a cumulative period of more than eight years. While in detention he was treated for physical and mental health issues.
In August 2023, Raheem was transferred from immigration detention to hospital with a life-threatening health condition. Two months later he was diagnosed with terminal cancer and placed in palliative care. Raheem died in hospital four days later. In his report the ombudsman notes the government’s duty of care to people in immigration detention and raises concern about the serious risk prolonged detention may pose to people’s physical and mental health.
“The Ombudsman is concerned that [Raheem’s] cancer was not identified until it was terminal, particularly noting they were hospitalised in August 2023, attended multiple routine medical appointments to manage their long-term medical conditions and had many risk factors for cancer.”
The Refugee Advice and Casework Service holds particular concerns for people with disabilities in detention, and women and gender-diverse people. McGarity says reports from the ombudsman and other human rights inspectors have long shone a light on the impact immigration detention has on vulnerable people. “No one should be deprived of their liberty in a detention centre, or shipped off to a third country and deprived of their liberty there, simply because a politician or public servant finds it expedient,” she says. “This is at odds with our democratic values in Australia. A person’s visa status should not make a difference to whether they can access human rights.”
In his report, the Commonwealth ombudsman made 10 recommendations in two of the cases. Ali was found to be affected by the High Court’s judgement in NZYQ v Minister for Immigration. The ombudsman noted that Serco officers applied force that exceeded reasonable necessity, subjecting Ali to force and restraint as a form of punishment.
“While appreciating the complexities of [Ali’s] case, the Ombudsman is of the view that [Ali’s] prolonged placement in ‘high care accommodation’ constitutes cruel, inhuman and degrading treatment,” the report finds. “It is not in line with departmental policies and procedures, which dictate that high care accommodation should be used for the shortest time possible. It is also inconsistent with internationally accepted human rights standards. Furthermore, at the point where the placement was authorised for solely medical purposes rather than safety and order, [Ali] should have been required to consent to their placement.”
The ombudsman made recommendations including and not limited to: conducting an investigation into the use of force against Ali, and Serco’s handling of the complaint; an investigation into the prolonged isolation of Ali in “high care accommodation”; a review of all incidents of unplanned force on people in detention with physical, intellectual or psychosocial disabilities, guardianship orders or restricted mobility; and that the contracted health provider be required to comprehensively assess whether it is appropriate to use restrictive practices, including mechanical restraints and isolation, on people with known physical or mental health conditions.
In the case of Raheem, the ombudsman recommended the Department of Home Affairs direct the contracted health services provider to review their policies and procedures to ensure that people identified as being at high risk of cancer, or other detectable acute and chronic conditions, are screened routinely wherever possible to enable early detection.
The Department of Home Affairs is considering the ombudsman’s recommendations.
This article was first published in the print edition of The Saturday Paper on August 2, 2025 as "Shelved lives".
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