Two Australian citizens were unlawfully detained in immigration detention facilities by the Department of Home Affairs in the last 12 months.

Key points: Documents show two Australians unlawfully detained in immigration detention in the last 12 months

Documents show two Australians unlawfully detained in immigration detention in the last 12 months Four Australian citizens have been unlawfully detained since 2017

Four Australian citizens have been unlawfully detained since 2017 A review of the detention of Australian citizens identified "systemic" failures

7.30 can reveal the two citizens were unlawfully detained separately in September and October 2018.

In both cases, the citizens had been convicted of criminal offences.

However, at the conclusion of their sentences, a series of "processing and systems deficiencies" led to them being unlawfully taken into immigration detention facilities instead of released.

The revelations bring the number of Australian citizens detained in immigration detention facilities to four people in the last three years.

They also raise significant concerns that "systemic" failures identified by the former inspector-general of intelligence and security Vivienne Thom in a June 2017 review of detention of other Australian citizens have still not been resolved.

Ms Thom predicted that more Australians could be unlawfully detained if training and processes were not significantly improved within the department.

The unlawful detention of the two citizens has only emerged after 7.30 obtained a dossier of reports by the Department of Home Affairs to the Commonwealth Ombudsman setting out "inappropriate detention" cases.

Each case was classified as "high risk".

Both individuals were subject to what was believed to be a cancellation of their visas on character grounds, which commonly occurs at the expiry of a custodial sentence for non-citizens.

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'Erroneously identified as non-citizen visa holders'

Department documents acknowledge the mistake over the detainee's citizenship. ( ABC News )

The dossier sets out that the individual was detained in September 2018 after being convicted of an unspecified offence in October 2016.

The individual appears to have a lengthy criminal history and was "convicted of a range of other offences".

In September 2018, after the individual was taken to into immigration detention, it emerged that they had been a citizen since March 1986, but that Australian Border Force officers had previously failed to identify this or make appropriate inquiries.

In the other case, a citizen had been convicted of an offence in January 2018, as well as an earlier conviction in 2014. An assessment was conducted in August 2018 that concluded they were not a citizen, and they were taken into detention in October 2018.

In this case, it appears that a hand-written note on a citizenship application had conferred citizenship on the person as a minor in January 1989, but that this was not recorded in the department's systems.

It also notes that in October 2014, the department did not examine claims made by the officer about their citizenship status.

The person was released later in the same month after saying they had proof they were a citizen.

The documents state that the department "implemented remedial actions to mitigate the risk of similar errors occurring."

It also flagged that it would undertake "a review of cases with similar profiles to identify errors".

The department dossier said they were "erroneously identified as non-citizen visa holders because of incorrect information on departmental systems".

The documents also said they had increased training for officers and created a new team to address citizenship issues.

A spokeswoman for the Department of Home Affairs said in a statement the department had "robust procedures in place, both pre- and post-detention to ensure the detention is lawful and appropriate".

"Within two business days of an individual being detained, all cases are subject to a detailed review to ensure the initial detention is lawful and appropriate."

Immigration Minister David Coleman declined to answer questions and referred to the department's response.

Independent review flags 'systemic' risks



There have been four known instances of Australian citizens being mistakenly held in immigration detention since 2017. ( Giulio Saggin: ABC News )

The circumstances of the detention of the two more recent cases hold a number of similarities with two earlier cases in 2017.

In March 2017, an Australian citizen was released from detention after spending 97 days wrongfully detained.

In April 2017, another citizen was found to have been unlawfully held in detention for 13 days.

The two individuals respectively were of New Zealand and Papua New Guinea descent. The department had failed to appropriately identify in each case that both had obtained Australian citizenship.

Both individuals were also taken into detention after the purported cancellation of their visas on character grounds.

Ms Thom's review set out that "there is no reason to believe that these knowledge gaps are limited to the staff that handled these cases, or that these deficiencies are limited to the handling of 501 visa cancellation cases". Section 501 of the Migration Act 1958 deals with the cancellation of visas on character grounds.

"The knowledge gap was observed across a number of business areas in three states and points to a systemic issue."

Ms Thom found that staff involved "did not have the fundamental level of knowledge required to perform their duties" and "did not assume personal responsibility for their decisions".



Both men were detained after being incarcerated in New South Wales prisons.

They both made it known on multiple occasions that they were Australian citizens, but they were largely ignored by officers examining their cases.

"No consistent attempts were made to resolve the inconsistencies or escalate the matter," the report said.



Following Ms Thom's review, the department had stressed that it improved training and said it "has reviewed and enhanced training to ensure staff are alert to matters identified in the review of these cases, including training relating to citizenship, immigration status and notification issues".

Cornelia Rau was wrongly held in immigration detention ( file photo: Lateline )

The detention of Australian citizens in immigration detention has previously triggered major parliamentary inquiries.

In 2005 it emerged that Cornelia Rau, a German citizen and Australian resident, had been unlawfully detained for 10 months.

Her detention triggered a major review of the immigration department's systems by former Australian Federal Police commissioner Mick Palmer.

Mr Palmer's review identified major failures and made significant recommendations to reform the detention system.



In the more recent 2017 review by Ms Thom, she considered there were "common themes and overlaps" dating back to the failures of the Department in relation to the detention of Cornelia Rau.

Department risks 'loss of public confidence'

Home Affairs secretary Michael Pezzullo giving evidence to Senate Estimates. ( ABC News: Matt Roberts )

A further review obtained by 7.30 under freedom of information laws flagged that the Australian Border Force risks major reputational damage and legal claims from the detention of Australian citizens.

The review conducted in 2016 by accounting firm EY reviewed in detail the department's case files relating to earlier cases where people had been detained inappropriately or unlawfully.

"In the 2014 and 2015 financial years, 36 non-citizens were released from onshore detention facilities after being detained as their immigration status was lawful," the review found.

The EY review noted that officers failed to adequately record detainee responses in their reasons for detention-related decisions.

It also observed that at times they failed to make reasonable enquiries, such as examining family ties to Australian citizens.

"The detention of lawful non-citizens has exposed the department to lawsuits, external scrutiny and a loss of public confidence in the department's operations," the EY report said.

"Without an effective training framework and adequate systems … to support officers in the application of key controls, the department risks detaining lawful non-citizens or Australian citizens."

In a statement to 7.30, the department said this review was "outdated" and did not reflect its current approach.

"The department has more robust controls and governance mechanisms, strengthened lines of responsibility and accountability for decision-making, a stronger collaborative approach, and assurance that obstacles preventing case resolution are addressed," the statement said.

A spokesman for the Commonwealth Ombudsman said it had conducted an investigation into the department's implementation of Ms Thom's review and took seriously the detention of any Australian citizen.

"The investigation enabled us to identify gaps, where, in practice, the department's implementation activities had not entirely met its intent or the intent of the relevant recommendation.

"Our report made 15 recommendations to the department to address these gaps. The department accepted the ombudsman's recommendations, 14 in full and one in part."

A spokesperson for the Department of Home Affairs said the department "can confirm that all the recommendations of the [Commonwealth Ombudsman's] own motion have been implemented".