Status Resolution – Network Advice
s. 22(1)(a)(ii)
AUTHORISED BY:
– A/g Director, Status Resolution Program Management
and Capability
For attention of Detention Review Managers and Status Resolution
ACTION REQUIRED:
Officers – Please disseminate amongst your local networks to ensure
awareness and required action.
Dear Colleagues,
The purpose of this guidance is to support detaining officers in the
Detention Review Manager (DRM) and Status Resolution officer (SRO)
role, in identifying cases in immigration detention that may be
affected by the recent
NZYQ High Court judgment and to ensure these
cases are monitored and/or escalated as necessary.
You may be aware, the judgment imposes a new obligation on the
Department to start considering, from the point section 198 of the Act
is engaged, whether there is a real prospect of removal becoming
practicable in the reasonably foreseeable future. This is because a
person’s detention under section 189 wil not be valid where section
198 is engaged but there is no real prospect of removal becoming
MESSAGE:
practicable in the reasonably foreseeable future.
Action taken
To assist detaining officers to address all the relevant considerations
they should turn their mind to, in determining whether a person is
appropriately detained (including whether there is no real prospect of
removal becoming practicable in the reasonably foreseeable future),
amendments have been made to Mandatory Control Point 7 (MCP 7) -
ADD2024/374635.
We are also working on a CCMD enhancement to the MCP 7 to include
the new sections to the portal form and wil provide an update once
that is complete.
The purpose of the additional MCP 7 questions is to identify
potentially affected cases at any point of that person’s detention. This
includes cases where:
• section 198 is not (yet) engaged so they may be closely
monitored;
• there are no present legal barriers to s198, so that removal
prospects may be considered (whether or not the case is also
referred to Removals).
Please note: the MCP 7 questions will allow a detaining officer to
monitor resolution of a pending matter that poses a barrier to s198
being enlivened, but these questions are not otherwise intended to
establish definitively that a s198 power is engaged.
Action required
The above changes to the MCP 7 include the addition of two new
parts to the tool, which must be completed:
• by the DRM for all new detentions, and subsequently
reviewed and updated by any SRO detaining officer
thereafter; or
• by the SRO detaining officer for any current detention
decisions at the time of the detainee’s next case review.
Until the CCMD enhancement to the MCP 7 portal form is made, the
additional questions should be completed and recorded in TRIM, with
a reference to that document to be included in the “Other Issues”
section of the MCP 7 portal form.
A copy of the additional MCP 7 questions can be located at TRIM:
ADD2024/374635 while explanatory notes to assist in the completion
of the additional questions can be found at TRIM: ADD2021/2220957.
Pending changes to the CAT, guidance in assisting officers to assess
effectiveness of certain s501 notifications (where this is indicated by
the MCP 7) can be found at TRIM: ADD2024/374486.
Escalation points
If officers have any questions about completing the form, and/or
notification assessments that may be required please send these to
Status Resolution Helpdesk using our referral form (TRIM:
ADD2023/5379866).
Where the MCP 7 notes indicate a case may be potentially affected,
these should be escalated to Operational Coordination using their
NZYQ referral form (TRIM: ADD2023/6707708). Operational
Coordination will liaise with stakeholders to seek options to resolve
the matter and follow up on additional lines of enquiries about
removability, identity or visa procedures as needed. SROs may be
requested to assist further in these efforts.
EFFECTIVE DATE
or DATE DUE
Immediate
s. 22(1)(a)(ii)
@homeaffairs.gov.au – Escalation of NZYQ
POINT OF CONTACT:
cases
s. 22(1)(a)(ii)
@border.gov.au – Escalation of MCP 7
and/or notification assessment questions
ADD2024/374635 – Additional MCP 7 questions
ADD2021/2220957 – Explanatory notes for the additional
ATTACHMENT/
MCP 7 questions
TRIM REFERENCE:
ADD2024/374486 – Interim guidance to assess certain s501
notifications (as relevant to the MCP 7)
ADD2023/5379866 – SRHD Referral Form
ADD2023/6707708 – NZYQ Referral Form
RELATED
POLICY/PROCEDURAL
DOCUMENTS
