Commonwealth Ombudsman logo

Bulletin 2–1 September 2005–Investigation of the removal of Ms Vivian Alvarez from Australia and other immigration detention matters referred to the Commonwealth Ombudsman

Following the report of the inquiry by Mr Mick Palmer AO APM into the circumstances of the immigration detention of Ms Cornelia Rau, the Government requested the Commonwealth Ombudsman to investigate some 201 immigration detention matters that had been referred to Mr Palmer.

The Ombudsman has agreed to undertake these investigations. The team led by Mr Neil Comrie AO APM is continuing the investigation into the circumstances of Ms Vivian Alvarez (Solon), and is managing the overall investigation process for the other cases.

The legislative background


The Ombudsman Act 1976 provides a statutory framework for conducting an investigation that is thorough, fair and independent. The statutory powers and immunities created by the Ombudsman Act place the Ombudsman in the same position as a Royal Commission. The Ombudsman can require any witness to attend and give evidence on oath; protect a witness against any civil or criminal liability resulting from any evidence given; require the production of relevant documents from any person, or any Commonwealth, State or private body; and enter premises.

In addition to these powers, the Ombudsman has an obligation under section 8(5) of the Act not to make a report in respect of an investigation until any person or agency that is expressly or impliedly criticised in the report, has been given an opportunity to respond to the draft opinion.

Examination of the Vivian Alvarez matter


The Ombudsman has been requested to continue the investigation that was being undertaken by a team headed by Mr Neil Comrie into the removal of Ms Alvarez from Australia. The inquiry is being completed by Mr Comrie in association with the Commonwealth Ombudsman under the Ombudsman Act.

A draft of the report prepared by Mr Comrie has been completed and forwarded to the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). As the draft report contains information that is critical of the actions of some officers in the Department, the natural justice process under s 8(5) of the Ombudsman Act is being followed. Following the completion of this process the report may or may not be amended and a final report will be provided to DIMIA and the Minister.

The Ombudsman has responsibility for the public release of the final report. We expect to provide the final report to the Department and the Minister in late September or early October, and to publish the report shortly thereafter.

Process in relation to the 200 immigration detention matters


These cases are being investigated following standard procedures in the Ombudsman’s office. Each case will be examined individually. However, given that some cases appear to have certain features in common (for example, information reflecting a person’s current immigration status may have been out of date or incorrect), a number of cases may be investigated simultaneously as a group.

The investigation of each case commences with an examination of the files and DIMIA records for the person involved, along with the legislation, policies and procedures in place at the relevant times. Following this examination, investigation staff may seek further information from DIMIA, other agencies, the person who was detained, and others who may be able to provide information relevant to the investigation. Information may be obtained informally, or through the use of the formal powers available under the Ombudsman Act.

After analysis of all key issues, an assessment will be made as to how the matter will be finalised. The broad range of options available include:
  • deciding there was no deficient administration on the part of DIMIA or other Commonwealth agencies involved
  • deciding there was deficient administration on the part of DIMIA or other Australian Government agencies
  • identifying potential remedies for the individual, if applicable
  • identifying potential systemic remedies.
In the course of the investigations, the requirements of the Ombudsman Act, such as confidentiality and the right to natural justice, must be maintained.

Reporting


The form of reporting will be determined by the circumstances of each case. We will provide public reports on the outcome of our investigations, with appropriate regard to privacy. Each report may cover a number of like cases.

Progress to date


DIMIA is providing the Ombudsman’s office with summary preliminary information on each case to enable us to complete our categorisation and prioritisation. We expect this process to be completed by 16 September 2005.
In the meantime, investigation has commenced into two cases, and further detailed information is being sought from DIMIA on another 41 cases.