Summary: Migration Amendment (Bridging Visa Conditions) Bill 2023
The Bill amends the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) to introduce a new regime for Subclass 070 (Bridging (Removal Pending)) visas (BVR).
Who does the Bill apply to?
The Bill is primarily directed to persons who were granted a BVR since 8 November 2023, including the cohort affected by the High Court’s orders in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs. For that group, their current BVR will automatically cease and a new BVR will come into effect under the new regime in the Bill.[1] That new regime will also apply to any person who is granted a BVR after the legislation comes into effect.[2]
What does the Bill do?
New mechanism to grant BVR
The Bill introduces a new mechanism for the Minister to grant a BVR to persons for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future, without the person making an application for the visa.[3]
Imposition of new BVR conditions
The Bill imposes 10 new mandatory conditions on a BVR:[4]
Condition 8612 – notify the Department of full name and date of birth of each person who ordinarily resides with BVR holder within 5 working days of visa grant, and any changes within 2 working days.
Condition 8613 – obtain the Minister’s approval before performing any work or regular organised activity involving more than incidental contact with a minor or vulnerable person.
Condition 8614 – notify the Department of any interstate or overseas travel at least 7 working days prior, or 2 working days after departure.
Condition 8615 – notify the Department of association with, or membership of, any organisation (other than an organisation formed for the purpose of engaging in communications on governmental or political matters) within 5 working days of visa grant, and within 2 working days of any changes.
Condition 8616 – notify the Department of contact with any individual, group or organisation that is alleged or known to be engaging in criminal or other illegal activities, or who has expressed an intention to engage in such activities, within 2 working days after the contact occurs.
Condition 8617 – notify the Department of receipt of more than $10,000 or transfer of more than $10,000 or any changes to banking arrangements within 5 working days.
Condition 8618 – notify the Department of any debts of more than $10,000 or if declared bankrupt or experiencing financial hardship or any significant change to debts, bankruptcy or financial hardship within 5 working days.
Condition 8619 – provide evidence of current financial circumstances within 7 days of receiving a request from the Minister.
Condition 8622 – if the holder has been convicted of an offence that involves a minor or other vulnerable person, must not perform any work or participate in any regular organised activity (for reward or otherwise) involving more than incidental contact with a minor or other vulnerable person.[5]
Condition 8623 – if the holder has been convicted of an offence that involves a minor or other vulnerable person, must not go within 200m of a school, childcare centre or day care centre.[6]
Additionally, a visa holder who has been convicted of an offence involving violence or sexual assault must also be subject to Condition 8624, which prohibits the holder from contacting or attempting to contact the victim of the offence or a member of the victim’s family.[7]
The Bill also introduces two additional conditions that must be imposed unless the Minister is satisfied that the person does not pose a risk to the community:[8]
Condition 8620 – holder must remain at notified address between 10pm one day and 6am the next day, or other specified times. That is, the imposition of a curfew.
Condition 8621 – holder must wear a monitoring device at all times, which means any electronic device to determine the location of a person or object. The holder must also allow the fitting, installation, repair and removal of the device, take any specified steps to ensure the device and related equipment remains in good working order, and notify the Department if the device or related equipment is not in such order.
The rules of natural justice do not apply to the decision to grant a BVR. However, after granting a visa that includes prescribed conditions, the Minister must provide the person with a written notice setting out the decision and inviting the person to make representations about why the visa should not be subject to those conditions.[9] The conditions currently prescribed are Condition 8620 (curfew) and Condition 8621 (electronic monitoring).[10] The Minister must grant the person a new BVR without those conditions if the person makes representations and the Minister is satisfied that the person does not pose a risk to the community.[11]
The Bill also amends existing Condition 8542, which now requires the person to report for removal to Australia in accordance with instructions given by the Minister.[12]
Creation of new criminal offences
The Bill creates three criminal offences for breach of certain BVR conditions:
Breach of a monitoring condition, which in broad terms, is a mandatory condition that requires the person to report to the Department, notify the Department of certain matters or attend a specified place as directed.[13] This would appear to at least include new Conditions 8612, 8614, 8615, 8616 (and also existing conditions). It does not include Conditions 8617, 8618, 8619 or 8621.[14]
Breach of a condition requiring the person to remain at a particular address between certain times of the day.[15] This would appear to include Condition 8620.
Breach of a condition relating to an electronic monitoring device and related equipment.[16] This would appear to include Condition 8621.
The Bill imposes a mandatory minimum sentence of 1 year imprisonment for each offence.[17] The maximum penalty for breach is five years imprisonment or 300 penalty units or both. The offences do not apply if a person has a reasonable excuse.
Section 4K of the Crimes Act 1914 (Cth) applies to the offences.[18] Accordingly, a person commits an offence in respect of each day during which the person fails to comply with the relevant visa condition.[19]
Duration of a BVR
Under the new regime, a BVR will cease at the earliest of the following:[20]
When the Minister gives written notice to the person that the Minister is satisfied that person’s removal from Australia is reasonably practicable.
When the Minister gives written notice to the person that the person has breached a condition to which the visa is subject.
When the Minister grants the holder another BVR.
Dated: 17 November 2023
[1] ^76A of the Act. See also the application provisions in item 6 of Sch 1 to the Bill.
[2] Item 14 in Sch 2 to the Bill.
[3] ^2.20(18) and 2.25AB of the Regulations.
[4] ^070.612(1) in Sch 2 to the Regulations, item 13 in Sch 2 to the Bill.
[5] While this condition is expressed to apply only if a person has been convicted of certain offences, it appears to nonetheless be a mandatory condition that must be included on all BVRs: ^070.612(1) in Sch 2 to the Regulations.
[6] While this condition is expressed to apply only if a person has been convicted of certain offences, it appears to nonetheless be a mandatory condition that must be included on all BVRs: ^070.612(1) in Sch 2 to the Regulations.
[7] ^070.612B in Sch 2 to the Regulations, item 13 in Sch 2 to the Bill.
[8] ^070.612A of Sch 2 to the Regulations.
[9] ^76E of the Act.
[10] ^2.25AD of the Regulations.
[11] ^76E(4) of the Act.
[12] Item 10 in Sch 2 to the Bill. See also cl 070.611 of Sch 2 to the Regulations. The Bill also makes minor amendments to Conditions 8401, 8543 and 8561: items 9, 11-12 in Sch 2 to the Bill.
[13] ^76B of the Act.
[14] ^2.25AC of the Regulations.
[15] ^76C of the Act.
[16] ^76D of the Act.
[17] ^76DA of the Act.
[18] See the notes to ^76B(1) and ^76D(4). While there is no comparable note to the offence in ^76C, the legislative intention appears to be that all three offences will be continuing offences: see Supplementary Explanatory Memorandum, Migration Amendment (Bridging Visa Conditions) Bill 2023, p 2.
[19] Section 4K(2) of the Crimes Act 1914 (Cth).
[20] ^070.511(c) of Sch 2 to the Regulations.