Ombudsman: latest immigration detention bungle highlights serious Home Affairs flaws

By Stephen Easton

Tuesday May 8, 2018

Commonwealth Ombudsman Michael Manthorpe has told his former Immigration colleagues to have yet another go at fixing detention review processes, after an error led to a man with a valid visa being detained for almost four years.

The former deputy secretary in charge of visas and citizenship noted his old department doesn’t seem to have applied the lessons drawn from much more egregious cases where they have locked the wrong people up. The most recent cases of Australian citizens being detained were the subject of a review by former spy supervisor Vivienne Thom last June, which came out publicly in February, over a decade after the Cornelia Rau scandal rocked the bureaucracy.

Manthorpe is “concerned at the ineffectiveness of the department’s governance processes” in light of these recent failures as well as “regular reports” his office has received about people who have been detained and then released when it was discovered they had a lawful right to be here.

“Although the circumstances of Mr G’s case are unique, it highlights a potential systemic issue that echoes the findings of Mr Mick Palmer relating to Ms Cornelia Rau some 12 years ago, and which also arose in a recent case of wrongful detention of a citizen,” he said in a statement.

In terms of the severity of actual outcomes, the latest snafu is not quite on par with those past examples, but it could leave the department liable for compensation. And together, all these cases show that “serious flaws” remain in detention review processes, according to the ombudsman. When public servants are exercising the power to deprive people of liberty on behalf of the state, that’s a serious problem.

The department “became aware” of its admin error five months after Mr G was locked down but did not re-assess the legality of his detention, because his case was not picked up by a review aimed at finding cases just like his. Nor did the notification issue come up in regular monthly reviews of his specific case.

These monthly reports continued along as they always had, stating “no new information” had come up that would require his detention to be reconsidered. This is “not acceptable” in Manthorpe’s view. “The department has not explained why this failure occurred,” he reports.

“It is essential that the ongoing detention of a person in an immigration detention facility should depend not only on the formation of a reasonable suspicion that a person is an unlawful non-citizen upon their placement in detention, but that this reasonable suspicion must be maintained,” the ombudsman said in a statement.

“It should not be formed once and then be presumed to be perpetually true.”

The need to regularly review and confirm the legal basis for detention was central to Mick Palmer’s 2005 report on the Cornelia Rau case, Manthorpe notes. “This requires regular, positive action on the part of the department,” he argues in the report.

The original decision to detain Mr G is not a problem; he came to Australia working on a ship and deserted his post, before making a doomed application for a permanent visa. But when the department notified him of that refusal, it left out certain required information, meaning his bridging visa remained valid during his detention instead of being automatically revoked as officials assumed.

The ombudsman’s report is not very clear on the details of the error, but his office explained further.

“The Department of Home Affairs (Home Affairs) must adhere to technical and procedural fairness requirements when cancelling a person’s visa,” a spokesperson told The Mandarin.

“In this case, Home Affairs, in its written notification to the person, did not correctly disclose the relevant legislative provisions under which the cancellation was being made. As a result, the person’s visa was not cancelled in accordance with law and technically remained in force.”

The discovery of this led to a fairly absurd sequence of events. The department briefly released Mr G from detention last July, because he still held a valid bridging visa, then cancelled it one hour and 15 minutes later, on the basis that he was convicted of crimes committed in the Christmas Island detention centre. He was re-detained 10 minutes after that, and deported four days later.

‘Unlawful’ or just ‘inappropriate’ detention?

Home Affairs initially described the ongoing detention of Mr G as “unlawful” but later changed its official view to “inappropriate” last August, pending an internal review to decide whether he really was locked up illegally, in which case he should get “an appropriate remedy” from the government, according to the ombudsman.

In his recommendations, Manthorpe suggests this could take the form of an apology, a waiver of any debt to the Commonwealth arising from Mr G’s deportation, or even compensation.

The legality of the detention is a separate matter to the decisions regarding the man’s visa status, and revolve around the way Home Affairs establishes a reasonable suspicion that a person is in the country unlawfully, having neither visa nor citizenship.

“It is the view of the department that because it did not apply its knowledge of the refusal notification errors to Mr G’s case, it maintained the reasonable suspicion that he continued to be an unlawful non-citizen and that he should remain in immigration detention,” according to the report.

“It is the Ombudsman’s view that the department’s suspicion ceased to be reasonable after the department became aware of this issue and through the failure in its governance processes, failed to appropriately apply this knowledge to Mr G’s case.”

Home Affairs has agreed to all of Manthorpe’s four recommendations.

That means it will review “how it maintains the reasonable suspicion that a person in immigration detention is an unlawful non-citizen” and when that is done, update the relevant policies and procedures “to ensure the ongoing lawfulness of a person’s detention is regularly reviewed, and the steps taken to maintain the suspicion that the detainee is an unlawful non-citizen are appropriately recorded”.

The department will also go back and try to identify all other cases affected by the same error — something it claims to have done before, despite missing Mr G — and make sure everything is in order. It will consider providing Mr G with some form of redress only if its internal “formal legal review” finds his detention was in fact unlawful.

The Mandarin asked why the ombudsman did not come to his own independent conclusion on this matter and left it up to Home Affairs to decide. That’s how it works, the spokesperson said:

“In line with the Ombudsman Act 1976, the Office of the Commonwealth Ombudsman (the Office) in its oversight role makes recommendations to Home Affairs. These recommendations can relate to errors in Home Affairs decision making. However, given the many thousands of visa cancellation, detention and related decisions that are made annually by Home Affairs, it would be impossible for the Office to review every single decision.

“Under the Act, the Ombudsman cannot make binding findings in relation to departmental decision making, but welcomes the fact that Home Affairs has agreed to all of the report’s recommendations, including to undertake a legal review of the detention of Mr G informed by, among other things, ongoing litigation.”

Manthorpe does, however, make it clear where he stands on this question in his report: “The department’s view that it maintained a reasonable suspicion that Mr G was an unlawful non-citizen during the entire period of his immigration detention is … not sustainable.”

He does not accept the department’s position that “as long as no information comes to its attention that challenges the view of the reasonableness of the suspicion as it relates to an individual, even if that information is generally known to the department, then that view is maintained” on the basis that it should have realised Mr G’s case was affected by the error.

“In the case of Mr G, information that would lead the department to the view that Mr G in fact was still the holder of a visa and should not be in detention was available five months after his detention. However due to a deficiency in the department’s governance processes this information was not brought to bear on his case and he remained in detention for nearly four years.”

This is the second major report from the former visa and citizenship boss into matters very close to his immediate past responsibilities and, as the report notes, his new office has had a substantial role in oversight of immigration detention since the Cornelia Rau scandal.

Early in his term as ombudsman, Manthorpe signed off on the report from an investigation into complaints about long delays in citizenship by conferral, which began a few months before he left his previous role.

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