The Inquiry recommends that this opinion be brought to the attention of the Secretary of DIMIA, in accordance with art. Relevant recommendations from the report of the Inquiry into the circumstances of the immigration detention of Cornelia Rau.
The unlawful removal of an Australian citizen
Vivian Alvarez
Vivian Alvarez Vivian Alvarez Solon Vivian Alvarez Young Vivian Alverez Vivian Cook Vivian Solon Vivian Solon Young Vivian Young Vivien Alvaraz Vivien Alverez Vivienne Alvarez. The name Vivian Alvarez is used in this report as it is the name that first came to DIMIA's attention in 2001.
An overview
Even in 2004, when the same senior officers and one other pointed out her identity, nothing was done. Amanda Vanstone, resulted in Vivian's illegal removal being brought to the attention of the government and the CEO of DIMIA.
The Inquiry’s terms of reference
In its investigation of the Alvarez affair, the investigation revealed much that reinforced the findings of the Palmer investigation. Accordingly, many of the findings and recommendations presented in the Palmer Report are directly relevant to, and are supported by, the findings and.
Inquiry processes and procedures
The participants were also assured of the confidentiality of the information they provided to the study. Proof of the comprehensive nature of the investigation is the fact that more than 100 witnesses were questioned.
The Office of the Ombudsman
The recasting of the investigation as one under the Ombudsman Act had a consequence for the way this report is written. The inquiry's terms of reference required the team led by Mr Comrie to make "findings" in relation to the matters in question.
Terminology
DIMIA
They enabled the Inquiry to have access to all witnesses, documents and information it deemed relevant to the investigation. In contrast, the Ombudsman Act provides that the Ombudsman will give 'specialties of inquiry' to a department (s.
Identification of individuals
Section 198 of the Migration Act 1958 deals with the removal from Australia of illegal non-citizens. Sections 200 to 206 of the Migration Act 1958 provide for the discretionary deportation of non-citizens who commit serious crimes or are a threat to national security.
DIMIA’s progress with organisational reform
An 'illegal non-citizen' is a non-citizen who does not have a valid visa. The central elements of the Vivian Alvarez material are recorded in the chronology that follows.
Background
Police records show Vivian had established a minor criminal history under the name Vivian Solon. 2000 Vivian applies for an Australian passport in the name Vivian Solon, giving her mother's maiden name as Alvarez.
Phase 1: removal, 2001
3 April 2001 Vivian is transferred from the Richmond Clinic to the general ward at Lismore Base Hospital. July 18, 2001 An official from the Philippine Consulate General and a nun from the Canonian Catholic Order in Brisbane visit Vivian at the Airport 85 Motel.
Phase 2: discovery, 2003
Lismore Base Hospital nurse, Nurse AL, contacts New South Wales Crime Stoppers and provides information on Vivian's identity. DFAT officer BN provides the Bureau for Missing Persons with the information sent from DFAT in Manila.
Phase 3: discovery, 2004
Agent AA of the DIMIA Contact Center in Sydney conducts a number of searches of Vivian Solon Young's database in response to a telephone call from Mr. Young. September 29, 2004 DIMIA Officer A regains access to database information on Vivian Solon Young, Vivian Alverez, and Vivien Alverez.
The truth emerges, 2005
The lost opportunities to identify Vivian
While Australasian Correctional Management officers were guarding her at the Airport 85 Motel, Vivian made a number of comments and told them she had two children. BC said Vivian told her her name was Solon and she was married to Mr. Young.
The failure to redress Vivian’s unlawful
Discovery, 2003
Separately, on August 20, a DIMIA F officer in Brisbane who was involved in Vivian's removal in 2001 identified her on the Without a Trace program and printed a number of search results from DIMIA databases. Robert Young made numerous telephone calls to the DIMIA contact center (including one on 24 September 2003) to ascertain Vivian's whereabouts and to provide background information on her removal.
Discovery, 2004
Agent C retrieved the Vivian Alvarez file from the office administration system, searched the passport database for Vivian Solon Young, and forwarded the search results and file to Agent A in Canberra. Apart from sending the Vivian Alvarez file from the Brisbane office to Officer A in Canberra, neither Officer B nor Officer C took any further action regarding the case.
Systemic problems
- DIMIA culture
- Case management
- IT systems and databases
- Training for compliance and
However, the investigation's interviews with a large number of DIMIA staff did not provide evidence that compliance officers were familiar with – or actually used – the mandatory checklist in removal proceedings. The inquiry recommends that the Secretary of DIMIA instruct staff to comply with the requirement in Migration Series Instruction 267 that a mandatory checklist be completed to record the act of removal and that the act of removal be approved by a senior compliance officer - the officer responsible for compliance.
The Department of Foreign Affairs and Trade
In Section 3.3.2, the Inquiry expresses its concerns about business management—especially continuity and surrender. The patient's first name was recorded as 'Vivian'; the report recorded her last name as 'unknown'.
False assumptions
Vivian’s conflicting evidence
When interviewed by the investigation, Officer D said that when she established the link between Alvarez and Solon Young, she took the data printouts and explained her discovery to her supervisor, Officer A, who was acting on Executive Level 1 at the time The following One day, Officer E, another of Officer A's subordinates, conducted an extensive series of database searches that clearly linked the names of Alvarez, Solon, and Young. Since Officer A was the person in Canberra with whom Officer C 'left the case', the result of this series of managerial errors was that nothing was done about Vivian's unlawful removal.
The DIMIA Contact Centre
Fingerprints and photographs
Fingerprints
Photographs
An applicant meets the requirements of this paragraph if:. a) the applicant has made a valid application in Australia for a substantial visa of some kind that may be granted if the applicant is in Australia and that application has not yet been finalized; or (b) the Minister is satisfied that the applicant in Australia will, within such time limit as the Minister permits, apply for a substantial visa of a type which may be granted if the applicant is in Australia. The inquiry believes it would be unfair to take disciplinary action against any of the DIMIA agents involved in Vivian's removal from Australia.
The Queensland Police Service Missing Persons
The Queensland Department of Family Services
Vivian’s physical and mental health
Concerns about Vivian's health were raised with the Consulate General of the Philippines and the Embassy of the Philippines. The second area of concern concerns the circumstances in which Vivian's medical examination was conducted on 19 July 2001.
Vivian’s care needs
Welfare
In light of this, the Inquiry considers that there are two main areas of concern in relation to the way DIMIA officers dealt with Vivian's physical condition. Leaving aside the fact that Vivian was an Australian citizen when she was removed, the inquiry believes that given her poor physical and mental health and the lack of known family support, the arrangements for Vivian's reception and well-being upon arrival in Manila were .
Arrival in Manila
However, some further discussion is warranted here on factors of particular relevance to the Alvarez case.
Immigration detention under s. 189 of the
Reasonable suspicion
I was referred to the observations of the Supreme Court in George v Rocket CLR 104 at 115 on what must be established for a reasonable suspicion. A majority of the High Court held that the officer's decision would not be invalid for that reason alone.
Deprivation of liberty
In fact, many of the assumptions made about how she came to Australia and about the difficulties in identifying her were unfounded and appear to have become axiomatic and relied upon in the decision to detain and remove her, to justify 198 of the Act would tend to support this idea because it requires "An officer to remove an illegal non-citizen as soon as reasonably practicable."
Removal
It is clear that from 3 May 2001 to 15 June 2001, the duration of the first connecting visa, the compliance officers believed that Vivian would apply, or at least be eligible to apply, for the visa. Sub-paragraph 2.1.3 of the guidance requires officers to note that there is some flexibility in relation to that period which meets the direction to be removed "as soon as reasonably possible".
Privacy
DIMIA's interpretation and application of privacy requirements in this case had the potential to contribute to the danger Vivian was in and is completely contrary to the spirit of the legislation. Privacy and the interpretation and application of the Privacy Act 1998 are discussed at length in the Palmer Report.
DIMIA’s email records
The Inquiry recommends that the Secretary of DIMIA take all necessary steps to ensure that email business records are kept in accordance with the requirements of the Archives Act 1983.
Robert Young
Media speculation
The facts do not support this implication and the inquiry makes no negative findings regarding Ms Sue Tin's actions. This harmful and unnecessary 'outing' by Ms Sue Tin was distressing to her, and the Ombudsman has expressed the concerns of the inquiry to Lateline's executive producer.
Interviewing Vivian Alvarez
On the ABC's Lateline program on 25 July 2005, it was reported that Barbara Sue Tin, a senior immigration officer at DIMIA, had particular knowledge of Vivian's removal in 2001.
The removal of Vivian Alvarez
After the removal
July and August 2003
From an audit of these database searches, it is apparent that Officer D has identified a connection between Vivian Alvarez, who was removed on July 20, 2001, and Vivian Solon Young, who is the subject of a missing persons bureau investigation. Officer E saw the program and, upon arriving at her office the next day, conducted further database searches that positively linked Vivian Alvarez to the name Vivian Solon Young.
September 2004
Officer E blindly copied this email to Officer A. When interviewed, Officer A said he 'couldn't remember' reading this email. During his interviews with the investigating officer, C said that he informed his superior officer B (who at that time was acting at Executive Level 2, as Deputy State Director) of the situation with Vivian on or about 29 September 2004 and that officer B responded with words to the effect that 'It is terrible.
Responses from officers A, B and C
Other matters of concern
The investigation finds that the conduct of Officers A, B and C as described in this report may constitute a breach of one or other of the requirements of the Australian Public Servants Code of Conduct as detailed in s. The inquiry will investigate, examine and report on matters relating to the Cornelia Rau case, including in particular the actions taken by DIMIA and relevant state agencies, between March 2004 and February 2005.
