The Detention of Cornelia Rau PDF

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The Detention of Cornelia Rau...

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LEG153 Introduction to Administrative Law

What happens - when Administration goes wrong? Case Study: The Detention of Cornelia Rau

Reference: ‘The Detention of Cornelia Rau: legal issues’ Parliamentary Library – Research Brief, 31 March 2005, no. 14, 2004-5 (PL Brief)

What happened? Cornelia Rau has lived in Australia since she was 18 months old, she is a permanent resident of Australia (lawfully resident in Australia). She also suffers from mental illnesses which led her, when questioned, to call herself by several German names and claim to be a German tourist in Australia on stolen passport, she requested a new passport and asked to be sent home to Germany. She was detained by police in North Qld in late March 2004 and detained as a suspected illegal immigrant until February 2005. She was held in the Cairns police watch house from 1-5 April 2004, she was then held in Brisbane Women’s Correctional Centre for 6 months (there is no immigration detention facility in QLD). During that period she spent a week in a Brisbane Hospital for a mental health assessment in August 2004 (which found ‘no diagnostic criteria for mental illness’). In October 2004 she was transferred to the Baxter Detention Centre in SA, during her time there she was held in isolation on two separate occasions of 4 and 8 days. She was recognised by her family in a SMH report in February 2005 and transferred to a Psychiatric Hospital near Adelaide (PL Brief pp.3-4).

Government Policy There is a Federal Government policy of mandatory or compulsory immigration detention, which requires authorities to take into custody any person suspected of being unlawfully Australia. The Law s. 189 of the Migration Act places a legal obligation on immigration authorities to detain anyone ‘reasonably suspected’ of being unlawfully in the country.

s. 196 requires unlawful entrants to be kept in detention until they are removed, deported or granted a visa’. Interpretation of the law The words ‘reasonably suspected’ in s. 189 are critical, it is the only protection against arbitrary arrest and detention – the Federal Court has interpreted that phrase as requiring (PL Brief p.9): “ … an officer forming a reasonable suspicion is obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion.” Goldie 2002 (PL Brief p.9). ‘to make due inquiry’ – obligation on the official to take positive action to justify their suspicion, not simply to rely on what the person under suspicion is able to tell them (PL Brief p.9). “The officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful citizen.” Goldie (PL Brief p.9).

DIMIA’s internal guidelines for officers applying s. 189 and s. 196 Migration Series Instruction (MSI) 321: Detention of Unlawful Non-Citizens The guidelines stress the need to obtain objective evidence to justify a reasonable suspicion the person is an unlawful citizen before detaining that person. However the MSI does not direct officers to undertake ‘due inquiry’ themselves to obtain relevant material or information, as required by the decision in Goldie (PL Brief p. 14). Migration Series Instruction (MSI) 234: General Detention Procedures “Officers should regularly review the need for continued detention, and for maintaining the form of detention” (PL Brief p.14) Cornelia Rau was visited by DIMIA officials only twice (maybe three) times while in goal in Brisbane.

Federal Government v Federal Court’s interpretation of the law The Federal Court and the Federal Government “have a different view of the legal basis for ongoing immigration detention” (PL Brief p.10).

“According to the Federal Government, s. 189 of the Migration Act requires that a person suspected of being an unlawful non-citizen must be kept in immigration detention until that suspicion is shown to be wrong.” (PL Brief pp.10-11)

“The Federal Court has said that suspicion is not enough to authorise ongoing detention. … detention of a citizen, or lawful non-citizen, is unlawful unless justified” Gray J. (PL Brief p.11).

Competing rationales of each interpretation Federal Government’s interpretation - administratively more certain

Court’s interpretation – insists on the protection of fundamental right of freedom from unlawful imprisonment Protection of human rights The High Court and the Federal Court have said that any intention to interfere with ‘fundamental rights’ must be clearly manifested by unmistakeable and unambiguous language (PL Brief p.12).

“Wrongful arrest and imprisonment even for a short time is a serious matter whose seriousness is measured not solely by the length of the period of incarceration. Arrest and imprisonment involve a grave interference with the rights of the individual coupled with humiliation which is both public and private” Gray J. in Goldie (PL Brief p.21).

Palmer Inquiry and Report Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau.

The Inquiry The inquiry had limited powers, Palmer had no powers to compel witnesses or to obtain access to documents (some Qld agencies refused to cooperate fully). Interested parties such as Ms Rau’s lawyer Claire O’Connor had no access to the material Palmer had access to (such as the Baxter files). Potential public service witnesses were not afforded any form of legal protection and so did not speak to the inquiry. Some detainees were afraid to speak out. Palmer had no power to cross examine witnesses. The report will not be supported by available transcript or supporting documentation and evidence (David Marr, ‘Once over lightly: the Palmer Inquiry into Cornelia Rau’s detention’ Sydney Morning Herald, 23 June 2005).

Commonwealth Ombudsman (who has the powers of a Royal Commissioner) further investigated Vivian Alvarez’s (Solon) case and another 200 cases referred to the Palmer Inquiry.

In a preliminary report as part of the Palmer Inquiry (Chapter 8) the Ombudsman concluded that the Vivian Alvarez (Solon) case and others confirm “the systemic nature of the problems identified in the Cornelia Rau Inquiry”. (p. 188 Palmer Inquiry Report).

The Report The Report confirmed that Ms Rau suffered a grave injustice – incarcerated for reasons of “administrative convenience”. “Officers should not only have continued inquiries aimed at identifying Anna; they should also have continued to question whether they were still able to demonstrate that the suspicion on which the detention was originally based persisted and that it was still reasonably held.” (quoted in David Marr, ‘Cornelia Rau: the verdict’, Sydney Morning Herald July 18 2005) Problems with how DIMIA actually functioned Lack of training The Palmer Inquiry found that the training and oversight of DIMIA staff charged with such responsibilities was woefully lacking. (p.25 The Palmer Inquiry Report)

Limited training and systematic staff selection procedures Staff had “limited understanding of the legislation they are required to enforce, the powers they are authorised to exercise and the implications of those powers”. (p. 192 Palmer Inquiry Report). No effective network of information DIMIA compliance staff had a poor understanding of the information systems and a limited capacity to effectively obtain information or search the databases. (p.190 Palmer Inquiry Report). Case management is fragmented and inefficient “Lack of rigour and accountability” – “no effective oversight and review mechanism”. (p.192 Palmer Inquiry Report).

Preoccupation with process Palmer found there was a “Lack of sensible staff empowerment” (achieved through training, effective communication and oversight), there is instead a “preoccupation with process”. Which means a problem is simply passed on to the next level in the DIMIA hierarchy or the rules are applied. As a result there is “no ownership of issues of consequences or identification with DIMIA’s objectives, goals or outcomes.” (pp. 193-4 Palmer Inquiry Report).

Problems with culture of DIMIA Palmer was critical of the culture of DIMIA – “overly self protective and defensive”. He found there was “an entrenched culture fixed on process and apparently oblivious to the outcomes being achieved”. (quoted in David Marr, ‘Cornelia Rau: the verdict’, Sydney Morning Herald July 18 2005). Palmer observed that within DIMIA – “The fact that a person’s liberty had been taken seemed to be accepted simply as a ‘matter of fact’ and a result of the person’s own doing and circumstances brought about by their actions. These attitudes seemed to be promoted by a culture in which detention of suspected unlawful non-citizens is the paramount consideration.” (p.25 Palmer Inquiry Report)

Emphasis on detention Palmer found that within DIMIA the “emphasis was on detaining people and that the follow up investigation of a person’s lawful situation was a matter of process, with no limitation on time and no need to execute the process as a matter of urgency.” (p.25 The Palmer Inquiry Report)

Lack of accountability and appeal framework “…immigration detainees appear to have lesser rights [than criminals in the CJS] and are held in an environment which appears to involve a weaker accountability framework”. Commonwealth Ombudsman in 2001 (PL Brief p.5)

“Currently the Department of Immigration can detain anyone they consider to be a so called unlawful non-citizen forever. Australian courts do not have the opportunity to determine the need or appropriateness of that detention. The denial of such a fundamental human right means that a person in Australia can be detained without end” Dr Graham Thom, Amnesty International (PL Brief p.4)

Conclusion – a failure of administration Rau’s case and Solon’s case highlighted the vulnerability of people with a mental illness in such situations. “DIMIA offices are authorised to exercise exceptional, even extraordinary power. That they should be permitted to do so without adequate training, with out proper management and oversight, with poor information systems and with no genuine checks and balances on the exercise of these powers is of great concern.” (p. 194 Palmer Inquiry Report)....