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Chapter 3 - Ms Solon's
removal from Australia
3.1
This chapter examines the actions taken at the time of Ms
Solon's removal from Australia
on 20 July 2001. It
considers the roles of DIMIA and DFAT at the time of removal and actions taken
immediately after her removal.
Removal
3.2
On 20 July
2001, Ms Solon
was removed to the Philippines
in the company of a Queensland
police officer. Mr Newhouse,
lawyer for Ms Solon,
reported to the committee that the Queensland
police officer was expecting to see representatives from the embassy and the
Sisters of Charity at the airport but there were no Australian representatives
at the airport when they arrived. He told the committee that Vivian
was then brought to the attention of the Overseas Workers Welfare Association
(OWWA) by a Qantas staff member and the police officer. Mr Newhouse clarified
that, 'OWWA is a Filipino government authority which has been established to
take care of returning members of the Filipina diaspora from overseas, but
there were no arrangements made by the Australian government for Vivian on her
return to Manila'.[71] Mr
Newhouse added that from their
investigations, it would seem that no formal arrangements had been made and
conversations with witnesses indicate they were never asked to arrange any
reception for Vivian at the airport.[72]
3.3
The committee asked DIMIA when its responsibility for a
detainee formally ends. Mr Williams
told the committee:
It is a little bit of a grey area, I guess, but detention would
probably have formally ceased when the person left Australia.
Whether that is when the aircraft was pushed back or whether it was when the
aircraft left Australian airspace is a question for the lawyers. But detention
would probably have formally ceased at that point. But as I understand it in
this case and in many other cases, the person was escorted—accompanied—by an
officer contracted or arranged by DIMIA. So there is a responsibility for that
person until they arrive at the destination country. So whether there is
technically a detention occurring at that time is a legal question, but there
is a responsibility.[73]
Committee
view
The committee is firmly of the view that there should be no
'grey area' with regard to Australia's
responsibility to those they are deporting or removing from Australia.
There must be an indisputable and identifiable point at which Australia's
responsibility to these people starts and ends. Ms
Solon's circumstances have highlighted the
need for the Australian Government to review and clarify this area of
responsibility.
Who was supposed to meet Vivian
DIMIA
3.4
The committee questioned the arrangements made by DIMIA
for Ms Solon's
arrival in the Philippines.
Ms Daniels advised the committee that it would be fair to say that 'the file
records are not clear as to the discussions during the week that Ms Alvarez was
in immigration detention on the arrangements set in place for her reception on
return...[74] The following information
contained in various documents shows a confused, vague and inconclusive account
of the arrangements made for Ms Solon's reception in Manila:
-
An officer who was part of the removal team,
contacted the mission in Manila to inform them that Ms Solon was using a
walking frame and would need assistance. However from the documentation
provided, it is not clear whether this request for assistance was followed up
or who made what arrangements[75];
-
A locally engaged officer of the Immigration
section of the embassy arranged for a welfare agency, presumably the Overseas
Workers Welfare and Administration (OWWA), to meet Ms Solon at the airport[76];
-
A DIMIA officer in Canberra asked a DIMIA
officer in Manila to make enquiries about services which might be able to meet
and assist Ms Solon on her return. There is no evidence of a reply[77];
-
Compliance staff in Brisbane said they had been
in touch with the Centre for Multicultural Care community group and the office
in Manila requesting assistance for Ms Alvarez on her arrival[78]; and
-
Ms Solon's escort had been advised by Compliance
staff that DIMIA was making arrangements for Ms Solon to be met on arrival by a
welfare/church organisation. The Escort Instructions, dated 20 July 2001, the
day of Ms Solon's removal, explain that the compliance officer 'should be able
to pass the names and any other information onto the escort before departure'.[79]
3.5
DIMIA staff in Manila
enquired as to what was expected of the embassy with regard to the arrival of Ms
Alvarez. They were told that Ms
Alvarez had departed with an escort and:
...that a social worker in Australia
had arranged for Catholic nuns or social workers to meet Ms
Alvarez on arrival and give any assistance
necessary. Therefore there was no longer any requirements for Embassy staff to
assist.[80]
3.6
As it turned out, Ms
Solon's escort phoned from Manila
to advise that Ms Alvarez
was met on arrival by a person who was the 'Overseas Welfare Administrations
officer from the Australian Embassy'.[81]
OWWA's recollection, however, is somewhat different. It states that Ms
Solon was:
Left at the OWWA Counter at the NAIA [airport] by a Qantas
Ground Personnel because there was no party to receive the passenger at the
Arrival Area. Logbook entries show the following:
1.1
She is on wheel chair, a traffic accident case,
accompanied by Senior Constable Jane
Beare of Queensland Police. Name appearing
on the log is Vivian Alvarez.
1.2
She has 3 checked-in luggages.
1.3
According to Vivian, she
will be fetched by a certain Mother Teresa
at the Arrival Extension Area. Officers checked with the arrival extension
twice, and made use of the paging system with negative results.[82]
Responsibility for making reception arrangements
3.7
Ms Daniels
told the committee that 'it would be part of the removal process that would
lead to our assessment as to whether there would or would not be some form of
reception arrangement'.[83] Mr
Williams added:
DIMIA is carrying out the removal, so it is obviously important
that DIMIA be satisfied that some arrangements are in place, where that is
necessary. It is often not, but in this case it obviously was. If the officers
were satisfied that another agency was capably handling that, then it might be
that you would bow out of the actual arrangements. But, in a case where there
was a need for some sort of on-arrival support, DIMIA would need to at least
kick that off—make that happen in the initial stages.[84]
3.8
In answering a question on notice regarding reception
arrangements, the department later advised that:
Reception arrangements for persons removed from Australia,
once they arrive in their home country, vary on a case by case basis.
The majority of people who are removed from Australia
are unescorted and will often make arrangements before departing Australia
for friends or family to meet them upon their arrival in their home country.
Persons being escorted for security reasons will usually be
provided with the opportunity to contact friends or family in their home
country before departure from Australia
or at a transit point. Alternatively, they may choose to make their own
arrangements upon arrival in their home country.
DIMIA may organise specific arrangements for people with special
needs, for example destitute persons, unaccompanied minors or people with
health issues. These arrangements can include but are not limited to:
- provision of care to allow the person, after
they arrive in their home country, to obtain temporary accommodation and
transport to their place of residence;
- provision of medication to last several months
after the individual's arrival in their home country (nb. As part of the
discharge process from a detention facility the person would have been provided
with medical records and referrals if these are required);
- a medical escort who may accompany the person to
pre-arranged medical care in the person's home country;
- referral to a welfare agency;
- for persons returning voluntarily under the
reintegration package, on-arrival counselling and transport.[85]
Committee
view
3.9
The committee believes that, given Ms
Solon's circumstances, the Australian
Government through DIMIA had an obligation to ensure that Ms
Solon on arrival in the Philippines
would be taken in by appropriate people who would care for her. The records
show that DIMIA failed to fulfil this obligation. It seems as though DIMIA was
happy to leave the arrangements in the hands of a third party and failed to
monitor or check on the arrangements to ensure that they were in place. A phone
call from the escort and a rough handwritten note on file indicating that Ms
Solon had been handed over demonstrates a
rather casual attitude toward the welfare of Ms
Solon. Moreover, the information recorded in
the file note was incorrect in that Ms Olajay
was not from the Australian Embassy. This incorrect information would later
cause some confusion in the search for Ms
Solon (see paragraph 3.13 below).
3.10
The committee agrees the records are unclear as to what
happened when Ms Solon
arrived in the Philippines.
There was no formal hand over and no follow up to ensure that Ms Solon was
safe. This situation is unacceptable and the committee considers DIMIA should
review removal processes and record keeping with a view to ensure that formal and
proper procedures are in place for the reception of people being removed from
Australia and clear and comprehensive records of arrangements are kept.
3.11
The following section considers DFAT's role in the
reception of Ms Solon
on her return to the Philippines.
DFAT involvement
3.12
Mr Smith
told the committee that in the normal course of events a removal would be an
issue for DIMIA only and DFAT would have no involvement.[86]
3.13
An email from a DFAT officer in 2005 indicated:
The Embassy has no record of any Embassy official meeting Vivian
Alvarez on arrival at Manila
airport on 20 July 2001. We
believe the police officer [who] escorted Ms
Alvarez from Coolangatta and Brisbane
airports to Manila Airport,
said she handed her to Ms Olajay
who she described as an Australian Embassy official. Ms
Olajay turned out to be working for the
OWWA.
The current PMO today called the previous PMO and asked if he
recalled what had occurred. The former PMO advised that a locally engaged staff
member arranged for a welfare organisation (presumably OWWA) to meet Ms
Alvarez at Manila
airport. The former PMO confirmed that he did not go to the airport himself and
he did not know where Ms Alvarez
was taken after her arrival.[87]
3.14
In response to a question regarding whether DFAT was
involved in providing any assistance for Ms
Solon on her arrival in Manila,
Mr Smith
said:
DFAT was not involved. When the DFAT staff in Manila
were advised of the arrangements being made for her removal, if that is the
correct term, to the Philippines,
the senior embassy officials asked around within the embassy to see who knew
more about this case. What appears to have come out of those inquiries is an
annotation that you may well have seen from a senior DIMIA officer at the
embassy, advice to the effect that this person has spoken to DIMIA in Brisbane...The
officer advised that this was what I understand to be called a normal removal.
'No DIMIA presence required at' and there is an acronym which I think refers to
Manila airport, and the head of mission and deputy head
of mission were advised of that. So the short answer to your question is: no,
there was no DFAT involvement in arranging reception arrangements for her on
arrival.[88]
Committee
view
The committee accepts that DFAT officers in Manila
were under the impression that the arrangements for Ms
Solon's arrival in Manila
were in hand and that their services were not required.
Writing
off Vivian's debt
3.15
Mr Freedman
noted that on 16 August 2001,
a minute was raised by DIMIA recommending that the debt of around $12,000 for
the cost of Vivian's removal be written off and
this was adopted on 24 August 2001.
He commented that this appeared to be 'fairly quick action on the part of
DIMIA, considering all the other things that have occurred'.[89]
3.16
Ms Daniels
told the committee:
The debt was written off in August. It is a routine matter, when
removees are assessed as not being in a position to have debts recovered from,
that they are considered for write-off. This case was one of them. The file
records show that when she came to attention, she appeared to be destitute and
to have no means of her own. That would have been the context for the
considerations for write-off...that write off process was not solely for Ms
Alvarez. She was one of I think it was nine
or 10 cases that formed write-off of debts in August 2001.[90]
Committee
view
The committee notes DIMIA's explanation.
Conclusion
3.17
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 Ms
Solon's 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. The records
show that there were no follow up enquiries to determine where she went from
the airport.
3.18
Leaving arrangements to third parties is not
acceptable. The committee considers that the arrangements put in place should
have been checked and confirmed by DIMIA officials in line with their duty of
care obligations. There should have been a formal handover and there should
also have been a follow up check to ensure she arrived at her final destination
safely, her needs were being adequately taken care of and the department had a
record of where she was to be located.
3.19
Chapter four will examine events in 2003 when Ms
Alvarez and Ms
Solon were discovered to be the same person
and activities in 2004.
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