Mr CZ v Commonwealth of Australia (Department of Home Affairs)

I make the following recommendations: Recommendation 1 The Commission recommends that the Department progress each of the elements of the Alternatives to Held Detention program, including: • the development of a more nuanced, dynamic risk assessment tool to assess the degree of risk posed by a detainee to the community and how such risk could be mitigated • the establishment of an independent pane. [...] I find that the following acts of the Commonwealth are relevant to this inquiry: • the Department’s delay in referring Mr CZ’s case to the Minister for consideration under s 195A of the Migration Act until October 2018 • the Minister’s decision on 23 October 2018 to not exercise his power under s 195A of the Migration Act to grant Mr CZ a BVE • the Department’s delay in referring Mr CZ’s case to t. [...] Consequently, I find that the failure of the Department to refer Mr CZ’s case to the Minister, to consider exercising his discretion under s 197AB of the Migration Act, contributed to the detention of Mr CZ without consideration of whether that detention was justified in the particular circumstances of his case. [...] Recommendation 1 The Commission recommends that the Department progress each of the elements of the Alternatives to Held Detention program, including: • the development of a more nuanced, dynamic risk assessment tool to assess the degree of risk posed by a detainee to the community and how such risk could be mitigated • the establishment of an independent panel of experts to assess the risk posed. [...] In particular, it is no longer open to the Minister to give the Department the ability not to refer cases on the basis that the Department has formed the view that the cases do not have ‘unique or exceptional circumstances’ or that it is otherwise not in the 31 public interest for the Minister to exercise these powers.