‘Same issues since 2005’: People wrongly detained due to Home Affairs’ systemic failures

A culture of “act first, check later” in the Department of Home Affairs led to repeat mistakes causing almost every wrongful detention in a single year, including an Australian citizen and a person who was held for a year and a half before being released.

The Commonwealth Ombudsman revealed in a report on Wednesday that the department wrongfully detained 11 people between July 1, 2023 and June 30, 2024, with officers failing to decide for themselves whether it was reasonable to detain someone in most of the cases.

The report said 90 per cent of the cases would have been avoided if existing policies had been followed, and that the same mistakes – including poor record keeping and failure to check conflicting information – had been made before but were not fixed.

One person was detained for a week despite receiving an invalid visa refusal letter – the same mistake that had resulted in a man being incorrectly detained in 2018 for four years.

“Since we began monitoring the issue in 2005, we have observed the same types of errors are causing people to be wrongfully detained,” the report said.

“In addition, the department has not improved the way it addresses its mistakes with the individuals it has wrongfully detained. The department does not offer people it has wrongfully detained any form of redress, formal apology, or financial compensation.”

Immigration detention staff can lawfully detain a person if they “know or reasonably suspect” them to be an unlawful non-citizen. Wrongful detentions occur when the suspicion is incorrect and the person is released, according to the ombudsman. It did not analyse whether Home Affairs officers reasonably held suspicions about detained people in the first place, saying that would be too legally complex.

The report said the data indicated that a culture of carelessness first identified in 2007 may still be present. In 81 per cent of the cases, staff acted as if the decision to detain a person had already been made by someone else and did not take responsibility for forming reasonable suspicion in their own minds.

The ombudsman regularly reviews wrongful detention, in part as a response to the case of Vivian Alvarez, a Filipino-born Australian citizen who was deported in 2001 after being admitted to hospital after falling into a drain. Her former husband searched for her for years, and she featured on missing persons television program Without a Trace. The department was made aware of its mistake by multiple sources in 2003, but took no action. Alvarez’s case didn’t become public until 2005.

The report highlighted wrongful detentions spiked 82 per cent in the latest reporting period, though the ombudsman noted there had been an overall decline in the past 10 years.

Most of the detentions were made during planned operations, meaning staff should have had time to assess the person’s circumstances and determine whether they were in the country unlawfully.

The median period a person was wrongfully detained was four days, while one detainee was held for a year and a half because a case officer accidentally removed the expiration date of his visa. An Australian citizen was detained after being issued a visa mistakenly and then taken into custody after it was revoked. Only then were they able to prove their citizenship.

The report also raised concerns over the availability of information to those who were wrongfully detained, with only one of the 11 having taken legal action.

“It is likely that many people who were wrongfully detained will not even contemplate seeking litigation, either because they are unaware of their rights or because they are just grateful to be released and want to get on with their lives,” it said.

“It is not fair to place the onus on individuals who have been wrongfully detained to seek justice through civil litigation when the department is already aware of the errors it has made and its assurance activities have failed.”

The report made three recommendations, including that officers be required to record the reasoning for their suspicion before seeking supervisor approval, and the creation of a formal fact sheet that explains a person’s rights to seek compensation to them in a language they understand.

The department’s policy should also be reformed to include a requirement to apologise and acknowledge wrongdoing to those incorrectly detained, with a promise for remediation, the report said.

A day after this story was first published, a spokesperson responded to repeated requests for comment and said the department accepted the recommendations, and that it reviewed each person’s detention monthly “to ensure the appropriateness of their ongoing detention”.

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