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Executive summary
This report is the second report arising out of a reference on
protection visas and deportation referred by the Senate to this committee. On 12 September 2005, the committee
tabled its first report dealing with Mr Chen
Yonglin's request for political asylum. This
second report considers the removal, search for and discovery of Ms
Vivian Solon.
The committee did not have the opportunity to examine many
of the officers directly involved in the removal, search for and discovery of Ms
Solon because the Commonwealth Ombudsman was
conducting an investigation into this matter at the same time. Mr
Neil Comrie,
who is conducting the inquiry, had requested that no officers involved in the Ms
Solon matter be approached in relation to
their dealings with her until his investigation was finalised. The committee
decided to table its preliminary findings in an interim report and to await the
publication of the Ombudsman's report before tabling its final report on this
matter. This interim report relies heavily on the written record made available
to the committee by the Department of Immigration and Multicultural and
Indigenous Affairs (DIMIA) and the Department of Foreign Affairs and Trade
(DFAT).
The following summary presents an outline of the committee's
main preliminary findings.
The committee believes
that DIMIA failed to act diligently in its efforts to establish Ms
Solon's identity. It finds that, although Ms
Solon insisted that she was an Australian
citizen and had married an Australian, potential lines of inquiry were not
pursued by DIMIA officials prior to making the determination that she was an
unlawful non-citizen. The process followed to establish or verify her identity
lacked rigour and it would seem that once the assumption was made that Ms Solon
was an undocumented arrival in Australia, little serious attempt was made to
test this assumption. The committee is in no doubt that DIMIA needs to address
the failings in the system made so evident in the case of Ms
Solon. It notes the assurances given by
DIMIA that measures have been taken to remedy the obvious shortcomings in its
processes in determining immigration status. It awaits the Ombudsman's report
before commenting further on the adequacy of these measures.
The committee is also concerned that DIMIA made no attempt
to ensure that any possible criminal act against Ms
Solon such as assault or a road accident was
thoroughly investigated by police—such an investigation may have brought to
light more details about her identity and facilitated a connection between a
missing persons investigation and Ms Solon.
In Ms Solon's
case, a relatively junior officer had the authority to determine that she was
an unlawful non-citizen and as a consequence was to be removed. The committee
finds this situation unacceptable. It notes that DIMIA now requires an SES officer
to clear all decisions to remove unlawful non-citizens. The committee is
concerned that this measure is not sufficient to prevent junior officers from
assuming, or being expected to assume, a level of responsibility that is
inappropriate for their position. It awaits the Ombudsman's findings before
making any further comment.
Clearly, the written record exposed serious flaws in the
decision-making process in Ms Solon's
case. Not only was the decision taken by a relatively junior officer but the
documentation relative to the process was inadequate. The committee finds that
transparency and accountability were lacking in the process leading to the
determination to remove her. It believes that any officer involved in a process
determining the immigration status of a person must adhere to strict guidelines
and that written records must substantiate that adherence.
The committee finds that DIMIA officers did not take
adequate measures to ensure that Ms Solon
was made fully aware of her rights and that no person was made available to
represent her interests. It would appear that this confused, infirmed woman,
who may well have been the victim of an assault or road accident, who did not
have any family or friends to support her, was destitute, without a known
identity and facing removal to another country, was not afforded appropriate
and proper legal assistance. The committee believes that this situation is
unacceptable and calls for DIMIA to redress this matter urgently.
The committee believes that greater attention should have
been shown toward the physical and mental well being of Ms Solon considering
that she had suffered a serious trauma and was about to be removed. This
finding applies most pointedly to the lack of attention given to the
arrangements for her reception in Manila.
The committee agrees with the view that the records are
unclear as to what happened when Ms Solon
arrived in the Philippines.
It would appear that there was no-one at the airport to receive her and it was
only with the help of a Qantas ground staff member that someone was located to
take care of Ms Solon. In the words of Ms Solon's lawyer, 'There's further
evidence that this sick woman, having been deported improperly and removed from
Australia [was] effectively, left abandoned in the Manila airport in a
wheelchair'.
The committee believes
that DIMIA failed in its duty of care to ensure that there was adequate
assistance and care for Ms Solon
on arrival in the Philippines.
It is quite clear that DIMIA was ultimately responsible for her removal which
includes all the associated arrangements on arrival. Records on who was
supposed to meet her are confusing but it would appear that these arrangements
were left to third parties and were not even checked or confirmed by DIMIA
officials.
Leaving arrangements to
third parties without any checks or confirmation is unacceptable.
The records show that in 2003 at least two DIMIA officers
became aware of the fact that Ms Alvarez
and Ms Solon
were one and the same person and that Ms
Alvarez had been removed from Australia
in 2001. The committee simply cannot comprehend how DIMIA failed to act on this
knowledge that it had removed an Australian citizen in 2001. Senior officers
and ultimately the Minister should have been notified of this discovery
immediately and remedial action taken with the greatest of urgency.
This failing in communication needs to be thoroughly
examined. The department's culture, resources, training of staff, its systems of
checks and balances, its reporting regime all need to come under the
microscope. It is unacceptable for an organisation to excuse its failings
because senior officers were not properly informed.
It is also clear that DFAT officials both in Canberra
and the Philippines
were aware in 2003 that 'apparently an Australian citizen was removed'. Surely
alarms bells must have started to ring. Although not the responsible
department, the committee considers that in this instance DFAT showed a lack of
initiative and good judgement in failing at the very least to make enquiries of
DIMIA about this most extraordinary case of an Australia citizen being removed
from Australia. There must also have been broader diplomatic implications that
had the potential to affect both the Australian and Philippines
governments. This seems to have been ignored.
In 2003, Mr Young, Ms Solon's former husband, rang DIMIA
seeking information on the removal of his ex-wife. To a point, the committee
accepts that because of privacy reasons DIMIA was unable to pursue this matter
with Mr Young.
It does not accept, however, that DIMIA's duty to investigate the matter ended
there. The information that DIMIA had to hand quite clearly indicated that the
Queensland Police were under the impression that DIMIA had removed Ms
Solon, an Australian citizen, in July 2001.
This assertion should have been checked, but again DIMIA officers brushed this
information aside. There were numerous avenues that DIMIA should have rightly
followed in establishing whether it had in fact made a major mistake in
removing an Australian citizen. Having been made aware of the possibility of
this mistake, the department was duty bound to investigate its own actions. The
excuse that senior officers were not informed carries no credibility.
The committee repeats its findings that the situation in
DIMIA where references to an Australian citizen being removed from Australia
were ignored or downplayed on more than one occasion is unacceptable and points
to serious problems in work practices in DIMIA.
The committee notes that in May 2005, Mr
Downer said his department informed him that
they had no knowledge of the case until 22
April 2005. Evidence shows that DFAT officers dealt with the case
in 2001, 2003 and again in 2004. Again this illustrates the overall breakdown
in communications within and between the government agencies dealing with Ms
Solon's case.
These preliminary findings will form the basis of a final
report that will be tabled soon after the Ombudsman's report is made public.
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