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Chapter 1 - Introduction
Background to the inquiry
1.1
On 12 September
2005, the committee tabled the first of two reports in relation to its
inquiry into protection visas and deportation matters. The first report examined
the government's response to Mr Chen
Yonglin's request for political asylum.
1.2
This report examines a second high profile case: that of
Ms Vivian
Solon, an Australian citizen who was removed
from Australia to
the Philippines
in July 2001. The committee was asked to examine issues surrounding her removal,
search and discovery, particularly concentrating on the involvement of the
Department of Foreign Affairs and Trade (DFAT).
1.3
The Department of Immigration and Multicultural and
Indigenous Affairs (DIMIA) played the central role in Ms
Solon's removal, and the decisions taken by
DIMIA are critical to understanding the context for DFAT involvement. To
provide this context for the reader and ensure clarification of the role played
by each department, DIMIA's actions and questions arising from its actions are also
addressed in this report.
Establishment of the inquiry
Terms of reference
1.4
On 16 June
2005, the Senate, on the motion of Senator Bob
Brown, referred the following matters to the
Foreign Affairs, Defence and Trade References Committee
for inquiry and report by 9 August 2005:
- The response of Department of Immigration Multicultural
and Indigenous Affairs, Department of Foreign Affairs and Trade, Attorney–General's
Department and their respective Ministers to Mr Chen Yonglin's approaches or
requests to the Australian Government for asylum and/or a protection visa;
- The application of the Migration Act 1958, its
regulations and guidelines concerning the maintenance of confidentiality for
any consular officials or staff (including Mr Chen Yonglin, and any other
former consular officials or staff) who were applicants for territorial asylum
and/or protection visas by Department of Immigration Multicultural and
Indigenous Affairs, Department of Foreign Affairs and Trade and their
respective Ministers;
- The involvement of the Department of Foreign Affairs
and Trade and the Minister in the deportation, search and discovery of Vivian
Solon, and;
- any related matters.
This report addresses terms of reference (c) and (d).
Conduct of the inquiry
1.5
The committee advertised the inquiry in The Australian on 22 June 2005 and on its website. It wrote to
relevant Ministers and departments, interested individuals and groups inviting
submissions. The committee received 9 public submissions and 1 confidential
submission from a range of organisations and individuals. A list of individuals
and organisations who made a public submission or provided other information
that was authorised for publication by the committee is in Appendix 1.
1.6
The committee held a public hearing in Sydney
and four public hearings in Canberra.
A list of witnesses who gave evidence at the public hearings is in
Appendix 2.
1.7
There were two matters that affected the work of the
committee in relation to the committee's inquiry into the Ms
Solon case. They were the inquiry conducted
by Mr Mick
Palmer and the late provision of
documentation to the committee. A brief consideration of these matters is given
below.
The Palmer Report
and Ms Solon
1.8
On 9 February 2005, Senator the Hon. Amanda Vanstone,
Minister for Immigration and Multicultural and Indigenous Affairs, issued the
terms of reference for an inquiry into the circumstances of the immigration
detention of Ms Cornelia Rau. Former Australian Federal Commissioner, Mr
Mick Palmer,
was to conduct the inquiry. On 2 May
2005, the Acting Minister for Immigration and Multicultural and
Indigenous Affairs, the Hon. Peter
McGauran, MP, requested that the terms of
reference be broadened to examine the circumstances surrounding the removal
from Australia of Ms Vivian Alvarez/Solon/Young.[1]
1.9
The report on the Inquiry
into the Circumstances of the Immigration Detention of Cornelia Rau (known
as the Palmer Report)
was released on 14 July 2005.
The bulk of the report dealt with the Cornelia Rau case but also contained
preliminary comments and findings regarding Ms Solon's case. These findings are
included where relevant in the following chapters. The examination of Ms
Solon's case is continuing and is now being
conducted by Mr Neil
Comrie under the aegis of the Commonwealth Ombudsman.
1.10
A letter from Senator Vanstone
to the chair of the committee summarised the situation:
You will be aware that the Government has asked the Ombudsman to
take over the Inquiry being conducted by Mr
Comrie in the case of Ms
Vivian Alvarez
Solon. The Ombudsman agreed to that request
and has commenced an own motion investigation under the Ombudsman Act 1976. That investigation is well advanced and I am
advised that a final report will be provided to me in accordance with the
provisions of the Ombudsman Act in September 2005. DIMIA staff have been
reminded of their duty to cooperate fully with the Inquiry.[2]
1.11
The Palmer report
affected the work of the committee in a number of ways. First, the department
advised the committee that they would not be providing a submission. The
committee received advice from Mr Ed Killesteyn, Deputy Secretary, DIMIA, dated
8 July 2005, stating that the Minister had referred the circumstances
surrounding Ms Alvarez' removal from Australia to the Palmer Inquiry. The
department was of the view that it would be inappropriate to make any comment
pending the report from the Palmer Inquiry and accordingly it would not be
providing a submission to the inquiry.[3]
1.12
In addition, DIMIA officials informed the committee that
Mr Comrie
had requested that no DIMIA staff involved in the Ms
Solon matter be approached in relation to
their dealings with Ms Solon
until his investigation was finalised. During the hearings it was clear that
DIMIA officials were constrained in the questions they could answer as they had
not spoken to the individuals involved.
1.13
The work of the committee was severely hindered by this
inability to either examine the officers directly involved in Ms
Solon's case or obtain informed and detailed
answers from DIMIA representatives appearing before the committee. The written
record is poor and incomplete and DIMIA officers appearing before the committee
relied heavily on this documentation to inform the committee. The committee
heard evidence that was confusing, at times contradictory and, in many
instances, fell silent on critical matters. Put simply, the committee was
denied access to information critical to its inquiry. It found the situation
unsatisfactory and asked DIMIA to speak to the Ombudsman to discuss a way
forward.
1.14
The committee was informed of the Ombudsman's views in
a letter from Senator Vanstone:
As you will be aware, some of the information requested by the
Committee would require the Department to interview DIMIA staff involved in the
case. To date the Department has refrained from interviewing staff involved to
avoid in any way influencing the investigation into this case being conducted
by Mr Comrie
under the aegis of the Ombudsman. This conforms with Mr
Comrie's request that no staff involved in
the matter be approached in relation to their dealings with Ms
Alvarez Solon
until he has finalised his investigations.
Due to the current Ombudsman Inquiry into this matter, the
Secretary of my Department sought the Ombudsman's views about the Committee's
request. In response the Ombudsman has advised that he has 'a general concern
that it can be problematic from an Ombudsman perspective to be conducting a
private inquiry into an issue that is concurrently the subject of a public
inquiry, especially where the issues under investigation are sensitive and
could result in recommendations for disciplinary or other action against
individuals'.
The Ombudsman has indicated his preparedness to discuss these
matters directly with the Committee...
Against this background I am uncomfortable at this stage with
the Committee's request to direct DIMIA to
interview staff involved in this case in order to respond to the Committee's
questions. However, I reiterate my and my Department's commitment to assist the
Committee to the fullest possible extent as
circumstances allow and I would be happy to discuss possible ways forward with
the Committee.[4]
1.15
The chairman, on behalf of the committee, responded to Senator
Vanstone on 18 August 2005. He noted the Minister's and the
Ombudsman's concerns but indicated the committee would like to pursue the
matters raised with the department to fill in gaps that existed in the
evidence. In particular, the committee asked for the following officers to
appear before it: those directly involved in arranging Ms
Solon's removal from Australia
and her reception in the Philippines;
those involved with the Queensland
missing persons investigations in 2003 and 2004; and the officers who conducted
the audit of access logs.
1.16
On 2 September
2005, the Minister replied. She observed that her department had
provided the committee with all documents provided to Ms
Solon's lawyers under their Freedom of
Information (FOI) request. She added further that the department had also
provided a range of additional documents to the committee that were exempt
under FOI and provided answers to an extensive range of the committee's
questions. As noted earlier, the committee found the written record woefully
inadequate.
1.17
The Minister further informed the committee that the
Ombudsman had provided the Secretary of the department with a draft report.
According to the Minister, the Ombudsman advised her that a number of officials
had been provided with relevant excerpts from the draft report and asked to
respond to comments in the report. In light of the process now underway, the
Minister stated:
Noting that the Ombudsman will finalise his report by late
September or early October, my view is that justice and the public interest
would best be served by waiting for the Ombudsman to quickly and efficiently
finalise his report and to then make this report public. This would then
provide a proper basis for Parliamentary consideration of the matter.[5]
1.18
The committee considered the Minister's response and resolved
to proceed with its inquiry in two stages. It decided that it would wait until
the Ombudsman's report is made available before making a final report and
accordingly will seek to obtain from the Senate an extension to its reporting
date. In the meantime, it would produce an interim report focusing on the
written records. In taking this approach, the committee's intention was to give
some coherence to this record and to make preliminary findings that could be
tested later against the evidence disclosed by the Ombudsman's report. With
this aim in view, the committee called DIMIA and DFAT officers to give evidence
on 6 and 7 September 2005.
1.19
At this point, the committee draws attention to the
fact that senior departmental officers, in early April 2005, began to suspect
that something was very wrong about Ms Solon's
removal. This awareness initiated a flurry of activity within the department in
order to piece together an understanding of the events of Ms Solon's removal in
2001 and the missing persons' investigations in 2003 and 2004. Many weeks
elapsed from this time to the referral of the matter to the Ombudsman on 2 May
and the committee's request to question the officers directly involved in Ms
Solon's case. During this period,
departmental officers clearly had the time and opportunity to bring together
all the strands of Ms Solon's
case, interview relevant officers where there were gaps in the written record
and have ready a full and accurate account of all aspects of Ms
Solon's removal. The evidence shows that the
officers appearing before the committee had apparently not been able to do so.
1.20
The late production of documents by DIMIA was the
second issue which affected the work of the committee.
1.21
At 4:45 p.m.
on Friday, 5 August 2005, the
Secretariat received over 2,600 folios from DIMIA regarding Ms
Solon. It was not possible for committee
members to review the documentation prior to the scheduled hearing on 8 August 2005. The committee was
disappointed that the department was not able to assist the committee in a more
timely and efficient manner. Committee members
were in a situation where it was not possible for them to study the documents
prior to the arranged hearing. They, therefore, were not fully prepared to
examine the department on some matters central to the inquiry. It should be
noted that the 2,600 folios did not comprise all the relevant documents.
Subsequently, the committee received further documentation from DIMIA.
1.22
As the hearing date and the reporting date were matters
of record for some time, the committee was particularly annoyed about the late
production of documents which resulted in an additional hearing being required
to question the department about the documents. The committee understands that
a great volume of material had to be gathered from various files housed at
different locations. It notes, however, that this inquiry was referred to the
committee by the Senate on 16 June
2005 with a reporting date of 9 August. The best the department
could manage was to provide the committee with the relevant documents late on a
Friday afternoon before the Monday public hearing and four days before the
initial tabling date for the report. The failure of the department to expedite
the location of relevant documents and to forward them to the committee well
before its reporting date reflects poorly on the department.
Documentation used in the report
1.23
The committee received a substantial volume of
material, much of which contained personal details which the committee decided
should remain confidential. As noted earlier, the committee received three CDs
containing over 2,000 folios as well as additional written material. For the
purposes of citing the material in the report, the committee numbered the
documentation contained on the CDs with a prefix 'S'. It has made some of this
documentation public. A record of this material is at Appendix 3.
Structure of the report
1.24
The report comprises five chapters—an introduction and four
chapters that address directly the terms of reference relevant to Ms Solon.
Acknowledgment
1.25
The committee is grateful to, and wishes to thank, all
those who assisted with its inquiry.
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