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Two Australian citizens wrongly sent to immigration detention, department confirms

The Immigration Department wrongly sent two Australian citizens to immigration detention, including one who was taken to Christmas Island, Fairfax Media has confirmed.

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The two Australians, one of whom was originally a New Zealander, were taken to immigration detention following their release from prison after committing serious crimes.

One was taken to Christmas Island, while the other was detained onshore, the Immigration Department said. It would not provide further information about the date, length or circumstances of their detention, or the second individual's other nationality.

"Two individuals were detained after their visas were cancelled mandatorily under section 501 of the Migration Act 1958," a department spokesman told Fairfax Media on Tuesday night.

"After it was identified that each individual held dual Australian citizenship, arrangements were immediately made for their release from immigration detention.

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"The circumstances surrounding their detention have been reviewed and appropriate safeguards have been implemented."

Under section 501 of the Migration Act, a non-citizen's visa must be cancelled if they are serving a full-time jail term of more than 12 months for an offence committed in Australia, or if they have been found guilty of a sexually-based crime involving a child.

It is understood the two cases were not related. It is possible the individuals did not know, or did not recall, that they were Australian citizens at the time of their imprisonment in immigration detention, and internal systems failed to detect their citizenship status.

A departmental delegate of the minister was responsible for the error, Fairfax Media understands.

The case has tinges of the wrongful imprisonment of Cornelia Rau and Vivian Solon. Ms Solon, also an Australian citizen, was wrongly deported to the Philippines in 2001 because immigration officials believed she was an illegal immigrant. She was later compensated to the tune of $4.5 million.

George Newhouse, the principal lawyer in both those cases, told Fairfax Media this latest error was "the natural consequence of a power grab by a minister who does not want to be held accountable to anyone, and in particular the judges and tribunals".

"This is what happens when you remove all judicial oversight from the executive government," Mr Newhouse said.

"It appears that the minister is up to his neck in this debacle and he needs to take personal responsibility for his decision to falsely imprison two Australian citizens."

"The minister had stated quite publicly he does not want to be constrained by judicial interference and false imprisonment is a direct result."

Clarification: An earlier version of this story implied Immigration Minister Peter Dutton personally exercised a statutory power to detain the two Australians. The power was exercised by a delegate.

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