Migration Amendment (Bridging Visa Conditions) Bill 2023

The Migration Amendment (Bridging Visa Conditions) Bill 2023 (the Bill) amends the Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 (the Migration Regulations) to ensure non-citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who are therefore not capable of being subject to immigration detention under subsections 189(1) and 196(1) of the Migration Act following the High Court’s orders of 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ) and who do not otherwise hold a visa are subject to appropriate visa conditions on any bridging visa granted to them following release.

The objective of the Bill is to keep the community safe, and to strengthen relevant migration laws to respond to the decision in NZYQ.

The Australian Government is taking action to strengthen the BVR framework to support the effective management of the migration status of members of this cohort, and to reinforce expectations about the purpose of the BVR, including reporting and notification obligations. The BVR permits, eligible non-citizens whose removal is currently not reasonably practicable to lawfully remain in Australia pending removal. The Department of Home Affairs (the Department) may use a BVR where a non-citizen in the NZYQ-affected cohort has no entitlement to remain in Australia and is and is unlikely to qualify for any other visa.  The BVR includes requirements for the person to engage and cooperate with the Department to facilitate their removal from Australia.

The current requirements for BVR holders are being further strengthened through this Bill to reflect the current environment and the expectations of the Australian community in respect to the management of non-citizens holding BVRs, in light of the implications of the orders in NZYQ.

Amendments to the BVR are required to ensure the effective management of this aspect of the migration system, including recognising that non-citizens with a history of serious criminal offending, including but not limited to serious offences committed in Australia, require appropriate and proportionate management while their migration status is being resolved.  

The Australian community expects well-managed migration and reasonably expects non‑citizens will cooperate with removal planning and immigration processes.  The Australian community expects non-citizens not to engage in behaviour contrary to resolving their immigration status, and the Australian community expects that non-citizens in Australia abide by Australia’s laws.  It is also recognised that failure to comply with Australia’s laws affects the Australian community and impedes the Government’s ability to effectively manage the person’s removal from Australia.

The Bill amends a number of existing visa conditions and establishes a number of new visa conditions that will be imposed as mandatory conditions on a BVR. The conditions will supplement a number of visa conditions:

8401The holder must report at the time or times; and at a place or in a manner; specified orally or in writing by the Minister from time to time.
8542must report in person for removal from Australia in accordance with verbal or written instructions given by the Minister
8543Must attend at a place, date and time specified orally or in writing by the Minister in order in order to facilitate efforts to arrange and effect his or her removal from Australia.
8561If the holder is directed orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder’s visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.
8612Notify the department of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder’s residential address
8613must obtain the Minister’s approval before commencing to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person
8614must notify Department of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.
8615must, notify the Department of the details of the holder’s association with, or membership of, any organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters)
8616must notify the Department of the details of any contact with the following:(a)        any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities;(b)        any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities.
8617must notify Department of the following matters:(a)        the holder receives, within any period of 30 days, an amount or amounts totalling AUD10 000 or more from one or more other persons;(b)        the holder transfers, within any period of 30 days, an amount or amounts totalling AUD10 000 or more to one or more other persons;(c)        the holder’s banking arrangements change
8618If the holder incurs a debt or debts totalling AUD10 000 or more
8619If requested by the Minister orally or in writing, the holder must provide evidence of their current financial circumstances
8620Must remain at the notified residential address of the holder 10pm and 6 am each day or between such other times as specified orally or in writing by the Minister
8621Must wear a monitoring device at all times

The Bill will establish new criminal offence provisions, in relation to certain conduct by non-citizens in the NZYQ affected cohort that constitutes a serious breach of visa conditions, relating to the failure to comply with certain requirements to notify, report to the Minister or the Department, where required to do so under certain mandatory conditions imposed on the BVR. These offences are vital to ensuring that non-citizens in the NZYQ-affected cohort remain appropriately engaged with the Department and the Australian Border Force, and cooperate in arrangements to facilitate their removal from Australia.

The new offence provisions that would provide a proportionate response in order to effect re-engagement of the non-citizen with the Department. Attempts to deliberately and repeatedly evade contact with, and monitoring by, the Department of Home Affairs demonstrates a disregard and contempt for Australian laws. This behaviour is contrary to the Australian Community’s expectations that a non-citizen abide by Australia’s laws and that non-citizens will engage with the Department to resolve their migration status.

A criminal offence is the most effective means of response to potential serious breaches of visa conditions within the NZYQ-affected cohort, because it is clear that the normal consequences of breaching visa conditions will not apply to this cohort.

Ordinarily, a visa holder who does not comply with a condition of their visa may be considered for visa cancellation on the basis of that breach – and if cancelled, would be liable to be detained as an unlawful non-citizen. For the NZYQ-affected cohort, immigration detention is not an available option where visa cancellation results in them being an unlawful non-citizen.  As such, the prospect of visa cancellation for a breach of a visa condition is not an effective deterrent against non-compliance with reporting requirements. Establishing an offence specifically for NZYQ-affected BVR holders and future BVR holders granted without application by the Minister, makes it clear that compliance with requirements to report to the Department and to notify the Department of changes in circumstances, including address, household, employment and other matters ensures the person remains engaged with the Department. Importantly, the offence encourages compliance with relevant visa conditions and ongoing cooperation in arrangements relating to removal from Australia.

The Bill proposes changes that will apply to those of the NZYQ affected cohort already granted the BVR to cease those visas and replace them, by operation of law, with new BVRs with apply stronger mandatory conditions. Those in the NZYQ affected cohort who are released from immigration detention in the future will also be granted the new BVR with the new suite of conditions.

The Bill makes other necessary consequential amendments to the Migration Act and the Migration Regulations to provide for the grant of further BVRs to members of the NZYQ‑affected cohort on subsequent occasions and to make it clear that a replacement BVR the preceding BVR.

These amendments make it clear that non-citizens in the NZYQ-affected cohort who are granted BVRs without application, by the Minister for Immigration, Citizenship and Multicultural Affairs, are required to hold the visa and are subject to the suite of mandatory conditions while they reside in the Australian community. These individuals, by Act of parliament, will be required to abide by those conditions on their BVRs and will face criminal consequences if they fail to do so.

These amendments are necessary in response to the implications of the decision in NZYQ to support the effective management of NZYQ affected non-citizens subject to release in the Australian community, and to maintain community safety.

Source

https://www.legislation.gov.au/Details/C2023B00170

Written by Ross Ahmadzai

18 Nov, 2023

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