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
and