Yesterday, Commonwealth and Immigration Ombudsman John McMillan released his report into the detention of 247 people, cases that were referred to McMillan following the wrongful detention of Cornelia Rau and Vivian Alvarez.
McMillan said that many of the people detained were either Australian citizens, permanent residents or lawful visa holders and that, in the majority of cases, the Department of Immigration failed to pay attention to detail. There was also a lack of ongoing review for those in detention. McMillan said that it was inexcusable that there were such frequent errors, given that these people had a lawful right to live unrestrained in the community.
Included in the report were the stories we haven’t heard much about, people like Rau and Alvarez who were wrongly detained due to a culture of ineptitude and miscommunication, but have not made the headlines. Those tales include the unfortunate story of Mr A:
Case study: Failure to review appropriateness of detention
Mr A was detained by DIAC in 2002, and was held in detention for a period of three years, two months and sixteen calendar days.
Mr A had been a permanent resident of Australia since 1989. He obtained a resident return visa (RRV) in 1991, which permitted him to travel to and from Australia within a specified time frame. On one occasion in 1995 when he returned to Australia, he produced his current travel document but not the travel document that evidenced the RRV. Mr A had left that travel document in Vietnam because it had expired, although the RRV granted in 1991 remained in effect.
Section 166 of the Migration Act placed an obligation on Mr A to provide evidence of his identity and a current visa in order to be allowed to enter Australia. There was information on DIAC’s systems that indicated he was a RRV holder. Unfortunately, the DIAC officer at the airport failed to access the appropriate records for Mr A and did not realise that he was a permanent resident.
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Believing Mr A to be without a visa, but noting his eligibility for a RRV, the officer issued him with a one month border visa to allow him to enter the country. While the decision to grant the border visa avoided sending Mr A out of Australia, the decision also had the effect under the regulations at the time of causing Mr A’s permanent resident status to cease. Had the officer identified that Mr A was a RRV holder, the officer could simply have re-evidenced the RRV in Mr A’s travel document (in accordance with usual practice).
Although Mr A had limited English skills, an interpreter was not used to interview him or explain the situation. Mr A later stated that he did not know that he had been issued with a border visa or that he had to regularise his status within a month of his arrival.
Mr A became recorded as an unlawful non-citizen on DIAC’s system after the border visa expired. That led to his detention in November 2002. An investigation officer from the Ombudsman’s office commenced an investigation into Mr A’s situation in June 2005 following receipt of a complaint. In February 2006, Mr A was released from detention after DIAC determined that the decision to issue him with a border visa was flawed and should be set aside, for the reason that there was no evidence that Mr A had lodged an application for a border visa. Without an application there was no lawful basis for such a visa to be granted.