Migration Amendment (Bridging Visa Conditions) Bill 2023

The majority voted in favour of a motion to agree with the main idea of the bill, which is known as giving the bill a second reading. Because this vote was successful, our senators can now consider the bill in greater detail.

What is the bill's main idea?

According to the bill homepage, this bill was introduced:

in response to the High Court’s judgement in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S28/2023) to provide for certain conditions to be placed on bridging visas granted to non-citizens released from immigration detention.

According to the explanatory memorandum (which is a political document prepared by the Government):

The Bill will establish new criminal offence provisions, in relation to certain conduct by non-citizens in the NZYQ affected cohort [i.e., Non-citizens released from immigration detention following the High Court judgment on 8 November 2023 in NZYQ] 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 [i.e., Subclass 070 (Bridging (Removal Pending)) visa]. 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.