Not ‘appropriate’ to compensate man who was detained for four years despite valid visa, Home Affairs says

By Shannon Jenkins

Tuesday September 15, 2020

Adobe

The Department of Home Affairs has decided against advising a man on whether his four-year detention was unlawful and will not offer him redress, the Commonwealth Ombudsman has found.

Ombud Michael Manthorpe on Monday released a new report on the implementation of recommendations made to Home Affairs, the National Disability Insurance Agency, the Department of Veterans’ Affairs, the Department of Agriculture, and Bupa Health Insurance across seven investigation reports published from July 2017 to June 2019.

Manthorpe followed up on four public reports on the administrative actions of Home Affairs, including a 2018 report on the circumstances of the detention of Mr G — a national of “Country A” who was held in immigration detention for four years before being involuntarily removed from Australia.

Mr G was detained in 2013 when his partner visa application was refused and his associated bridging visa was cancelled. However, when the department was preparing to remove Mr G in 2017, it found the notification of the refusal of his partner visa was defective and he still held a valid visa, the report noted.

“He was released from detention and then on the same day his visa was cancelled because of his conviction for criminal offences committed while in detention. He was re-detained until his removal from Australia,” it said.

“In response to the office’s investigation, the department advised an error in the partner visa refusal notification process became known to the department in March 2014, five months after Mr G’s original detention. The department undertook a review of the cases that may have been affected, but the error in Mr G’s case was not identified, nor was it identified in the subsequent monthly reviews of the case.”

Out of the four recommendations the ombud’s office had made — and the department had accepted — only two have been fully implemented.

One recommendation stated that if Mr G’s detention was found to be unlawful, the department should offer him “appropriate redress”, such as an apology, a waiver of any debt to the commonwealth incurred by his removal, or an appropriate amount of compensation.

However, Home Affairs decided it was “not appropriate” to write to Mr G after conducting a formal legal review, the office found.

“The office is satisfied the legal review has been finalised, but considers it unfortunate the department is unable to advise Mr G of the outcome of the review,” it said.

In its response to the report, Home Affairs disagreed that the recommendation had only been partially implemented.

“The department completed a formal legal review into the lawfulness of Mr G’s detention, and while the department acknowledges the circumstances of Mr G’s detention, the department does not consider it appropriate to offer Mr G redress at this time,” it said.

“The department considers this recommendation fully implemented.”

The other partially implemented recommendation relating to the Mr G report involved draft documents and training materials which have not yet been finalised.


Read more: Ombudsman: latest immigration detention bungle highlights serious Home Affairs flaws


Across the seven reports published from July 2017 to June 2019, 61 recommendations were made, and 55 were accepted, Manthorpe noted.

His follow up investigation found that of those 55 recommendations, 54 (98%) have either been fully or partially implemented.

Manthorpe said he was “pleased” that the five organisations involved have made “significant progress” toward implementing the recommendations.

“I would like to thank all agencies and organisations involved for their cooperation with my office throughout this project. It is to their credit that, for the most part, they did do what they said they would,” he said.

“Going forward, my office will integrate this follow up monitoring into our everyday work and I intend to periodically report on our findings.”

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