The Australian government has failed to set up an appropriate process to deport people held in immigration detention, a scathing report by the independent watchdog has found.
The commonwealth ombudsman found the Australian Border Force and home affairs department’s processes do not contain “timeframes for steps” towards deportation “or otherwise adequately reflect the significant impact of any delay upon a person’s liberty”.
In a report released on Wednesday, the government watchdog lambasted the government agencies for having policies and procedures that contained “little acknowledgment” of the effect each day spent detained can have on a person’s physical and mental health.
It accused the federal government of failing to learn the lessons of a series of adverse court findings about delays in deportation, proposing a new process “to achieve the quickest removal process possible” with more planning and milestones.
The report comes after the high court ruling in November that indefinite detention is unlawful, triggering months of political debate after 149 people detainees were released into the community.
The ombudsman’s investigation was prompted by the case of Egyptian man, Tony Sami, who was indefinitely detained between 2013 and 2023 after his visa was cancelled after a conviction on “a number of offences involving fraud or dishonesty”.
Sami exhausted all avenues of appeal against his visa cancellation, but remained in detention because Egyptian authorities would not issue him a travel document unless he provided contact details of relatives in Egypt, none of who could be identified.
In a judgment in late 2022, federal court justice Mortimer said evidence of efforts to remove Sami consisted of “little more than a series of emails and somewhat random inquiries” with “not one skerrick of evidence suggesting any planning to a timeframe” for his removal.
Justice Mortimer added there seemed to be “no objective basis for their timing, conducted it would seem entirely at the discretion of the officer responsible for a given removal”.
The ombudsman, Iain Anderson, said an investigation into how the department and border force were responding to the Sami ruling was launched in September 2023 after the watchdog was left unconvinced they were adequately reviewing their practices.
While the ombudsman believed justice Mortimer’s comments should have prompted an urgent review of the department and border force’s procedures, it found there was “no review, report, assessment, or other documented consideration of the Sami decision”.
“My office found Home Affairs’ and ABF’s removals policies and procedures make little acknowledgment that for every passing day, until the person is removed from Australia, the person is being deprived of their liberty,” Anderson said.
“Home Affairs and ABF did not capture learnings following Mr Sami’s case and they made no changes to their policies and procedures as a result of this decision.”
Responding to the ombudsman’s report, the department said there were various “difficulties” causing delays to Sami’s removal.
The department said the Covid-19 pandemic and efforts to obtain a travel document from the Egyptian authorities were two examples behind the delays.
“The department and ABF are acutely aware of the impact detention can have on an individual, and regularly review detention cases to ensure status resolution processes are progressing as quickly as possible,” the department’s response said.
The ombudsman said the court decisions in both Sami and NZYQ provided the government an opportunity to “improve and expedite the removal process, including to ensure that removal is progressed in an active and timely manner so that people are not unlawfully deprived of their liberty”.
The watchdog offered three recommendations, including having a prioritised process for those in indefinite detention, reviewing policies and procedures against every relevant judicial and tribunal decision as well as reviewing all significant cases by taking into account the entirety of the detention and removal period.
The department agreed with the report’s recommendations, but claimed that it already “makes every effort to remove such non-citizens as soon as reasonably practicable”.
“However the complexities of each individual’s circumstances means that removal planning timeframes do vary, and where individuals do not cooperate with the Department’s removal planning, some cases can become protracted.”
