Australian Immigration Daily News

The Migration Amendment (Bridging Visa Conditions) Regulations 2023 (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to:  

- make technical amendments to provisions enabling the Minister to grant a Bridging R (Class WR) visa without application; and

- make amendments consequential to those made by the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Matters) Act 2023 (Serious Offenders Act); and

- spell out the operation and application of certain visa conditions which must be applied to a Subclass 070 (Bridging (Removal Pending)) visa (BVR) in certain circumstances; and

- provide that certain conditions imposed on a BVR cease to be in effect 12 months after grant, including conditions relating to curfews and electronic monitoring.

Following the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S28/2023) (NZYQ) on 8 November 2023, the Migration Amendment (Bridging Visa Conditions) Act 2023 inserted and amended a number of visa conditions in the Migration Regulations and commenced on 18 November 2023. The Amendment Regulations are complementary to these changes and reinforce the effective operation of the BVR framework.

The Amendment Regulations amend provisions which enable the Minister to grant a BVR visa without application to an individual, including in circumstances where the non-citizen otherwise indicates they may not comply with the conditions of their BVR. In circumstances where those non-citizens may pose a risk to vulnerable people in the community, this amendment substantially enhances the protection of the community by ensuring that those non-citizens who are released from immigration detention as a consequence of the High Court’s decision in NZYQ are subject to appropriate and enforceable visa conditions. In some circumstances, a breach of a visa condition may constitute a criminal offence.

Source: Migration-Amendment-Bridging-Visa-Conditions-Regulations-2023.pdf and

On 8 November 2023, the High Court answered questions of law reserved for its consideration in a special case to the effect that ss 189(1) and 196(1) of the Migration Act 1958 (Cth) ("the Act"), on their proper construction, authorised the plaintiff's detention as at 30 May 2023 and 8 November 2023, but the sections are beyond the legislative power of the Commonwealth Parliament insofar as they applied to the plaintiff as at those dates.

The order was announced as having been agreed to by "at least a majority" of the Court. Today, the High Court published its unanimous reasons for that order.

Source: NZYQ-v-Minister-for-immigration----Judgement-Summary-28-Nov-2023.pdf

Overview of the bill

The bill amends the Migration Act 1958 to improve Australia’s compliance with human rights obligations related to its immigration detention regime.

Australia’s immigration detention regime requires that any non-citizen who is in the country without a valid visa must be detained and may only be released from detention if they are granted a visa or removed from the country. This bill does two things. Firstly, it will introduce a 90-day limit on immigration detention, which can only be extended if the Minister decides that, having regard to principles of international law, an extended period of detention is necessary as a last resort, reasonable, and proportionate. This bill provides that any extension of detention by the Minister is reviewable by the Administrative Appeals Tribunal (AAT).

Secondly, this bill includes a prohibition of the detention of minors, in accordance with human rights obligations.

Source:

Migration-Amendment-Limits-on-Immigration-Detention-Bill-2023.pdf and 

Overview of the Bill

The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the Bill) amends the Migration Act 1958 (Migration Act) to complement amendments made by the Migration Amendment (Bridging Visa Conditions) Act 2023 (First Amendment Act) on 18 November 2023.

On 8 November 2023, the High Court declared, in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ), that NZYQ’s detention was unlawful “by reason of having been and continuing to be no real prospect of removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”. The High Court found that the relevant provisions are beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff and issued a writ of habeas corpus.

The reasons for the judgment have not yet been published.

Following that decision, the Amendment Act was developed to manage the cohort of non- citizens affected by NZYQ. The NZYQ-affected cohort is made up of people who have been refused grant of a visa, or had their visa cancelled, and who are on a removal pathway but who have no real prospect of removal becoming practicable in the reasonably foreseeable future. In many cases, the person has a protection finding, within the meaning of section 197C of the Migration Act, which prevents their removal to their country of citizenship or habitual residence and there is currently no other country to which their removal can be effected. A ‘protection finding’ reflects the circumstances in which Australia has non- refoulement obligations with reference to a person. In other cases, removal is not practicable in the foreseeable future for other reasons, including where the person is stateless and their country of former habitual residence is not willing to accept their return.

Of the current known cohort, the majority were refused a visa, or had their visa cancelled, on character grounds. Others in the cohort had their visa cancelled on other grounds, but had not previously been granted a bridging visa due to risks they present to the Australian community.

Source: Migration-Amendment-Bridging-Visas-and-Other-Measures-Bill-2023.pdf and

Migration-Amendment-Bridging-Visas-and-Other-Measures-Bill-2023-EXPLANATORY-MEMORANDUM.pdf

The Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023 (the amending Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to allow for the power to certify an applicant for a Subclass 200 (Refugee) visa or a Subclass 201 (In-country Special Humanitarian) visa as being a member of a class of persons specified by the Minister and as being at risk of harm as a result of the person’s membership of that class to be delegated by ‘relevant Ministers’ to senior executive-level staff within certifying agencies (the Attorney- General’s Department (AGD), the Department of Foreign Affairs and Trade (DFAT), the Department of Defence and the Australian Federal Police (AFP)).

This is to achieve significant administrative efficiencies for these agencies, which will benefit affected applicants by reducing processing times.

Source: Migration-Amendment-sc200-and-201-visas-2023.pdf and