Home affairs wrongfully detained Australian citizen for four days because of paperwork bungle, ombudsman reveals
The Australian citizen, known as Mx C, was born in Australia to New Zealand parents in 1989, automatically granting them citizenship on their 10th birthday – but it was not recorded in departmental records.
Mx C was incorrectly granted a special category visa in 2010 despite being a citizen, and following an unrelated term of imprisonment in February 2023, home affairs cancelled that visa.
Mx C quickly emailed the department a copy of their Australian birth certificate, advising they were a citizen, but home affairs upheld the cancellation and they were wrongly detained for four days.
After months of legal wrangling and a move from criminal custody to immigration detention, a new assessment was eventually made, Mx C's citizenship was confirmed in September 2023, and they were released.
Another error saw a person with a valid visa detained for a year and a half, leading the ombudsman to note that the department is still making mistakes 20 years after Cornelia Rau's detention.
The ombudsman's report, released on Wednesday, also found home affairs wrongfully detained 11 people last financial year due to mistakes that could have been avoided, amid a culture of 'act first, check later'.
Another case, known as Mx A, arrived in Australia in April 1987, and their visa expired in October of the same year. Mx A was eventually detained in February 2012, then granted a bridging visa in August, and then a tourist visa in September.
The tourist visa was left open ended, with no expiration date, by mistake.
Mx A went to prison in 2017, so the department cancelled their bridging visa and they were re-detained on their release from custody in February 2022.
In August 2023, the department realised the tourist visa from 2012 was still valid, and Mx A was released.
'Wrongfully depriving a person of their liberty is serious,' ombudsman Iain Anderson said.
'Home affairs needs to do more to take accountability and acknowledge the human impact of their actions. Since we began monitoring the issue in 2005, we have observed similar types of errors causing people to be wrongfully detained.
'Home affairs had also not improved the way it addresses its mistakes with the individuals it has wrongfully detained, not offering any form of redress, formal apology, or financial compensation.'
As well as Rau, the report mentions the case of Vivian Alvarez Solon, an Australian citizen wrongly deported by the department in 2001.
In 2005, then prime minister John Howard and then immigration minister Amanda Vanstone issued formal apologies to Rau and Lavarez as 'the victims of mistakes by the department'.
Communication breakdowns, outdated data, administration errors, and 'failure to take personal responsibility for decision making and erroneous assumptions' were to blame, as well as the department not properly notifying people of visa cancellations or refusals and the 'significant challenges' of complicated legal situations.
Of the 11 detentions, ten 'could have been avoided if existing policies and procedures were properly followed'. Six were worked out within three business days.
The report notes there appears to be a culture of 'act first, check later'.
'While our office acknowledges that the department has taken steps to improve officers' knowledge about fundamental citizenship issues this reporting period, it is concerning that almost two decades after the first occurrence, we are seeing the same errors that were identified in previous reports,' the report states.
It added it w not fair to put the onus to rectify the situation on individuals who were likely unaware of their rights.
'Being wrongfully detained can be an isolating and dehumanising experience, and cause significant emotional distress and psychological trauma,' it states.
'There is also evidence regarding the severe harms caused by immigration detention more broadly, including the re-traumatisation of torture victims and exacerbation of existing physical and mental health issues.'
The report uses the word 'wrongfully' rather than 'unlawfully' because the officers may have held reasonable suspicions at the time.
'However, in every case the detention was wrong because the department later found that this suspicion was incorrect,' the report found.
The number of people wrongfully detained has decreased overall, after a peak of 40 people in 2017-18.
The ombudsman's recommendations include additional checks before detaining people, including supervisor sign off for planned detention operations; a formal apology, acknowledgement of wrongdoing, and information about compensation; and a factsheet in person's language about their rights to compensation.
The department has accepted all three recommendations.
Home affairs secretary Stephanie Foster told the ombudsman that each recommendation was 'afforded careful consideration' and accepted.
She also disagreed with the view that there was a culture of 'act first, check later' and said that checks are undertaken, interviews are conducted, and written record to support officer's conclusion that person is an unlawful non-citizen.
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