Bridging Visa R Conditions

On the 16 November 2023, the government passed the Migration Amendment (Bridging Visa Conditions) Bill 2023. This amendment introduced a new regime for holders of Subclass 070 (Bridging (Removal Pending)) Visa (Bridging Visa R) consisting of strict visa conditions and severe penalties when these conditions are breached. This page outlines the changes made under this amendment.

Reasons for the amendment

On 8 November 2023, the High Court handed down its decision in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor. The case involved a stateless Rohingya man from Myanmar whose visa had been cancelled on character grounds. The man faced indefinite detention as there was no country to which he could be removed and argued that his detention was unlawful.

The court’s found in favour of the plaintiff, holding that indefinite immigration detention is unlawful under the Migration Act 1958. As a result, 64 detainees who were being held on an indefinite basis were released. Many of these detainees had had their visas cancelled on character grounds. In some cases, this was because of criminal charges and/or findings of guilt for criminal offences.

In response to concerns about the release of these non-citizens, the government introduced changes that will allow them to be strictly monitored while living in the community.

Bridging Visa R conditions

The amendment introduced 10 new mandatory conditions for Bridging Visa R.

These are:

• Notify the Department of details of any person who lives with the visa holder
• Obtain the Minister’s approval before performing work or activities involving contact with minors or vulnerable persons
• Notify the Department of any interstate or overseas travel
• Notify the Department of membership or association with any organization
• Notify the Department of contact with any individual, group or organization involved in illegal activities
• Notify the Department of any receipt or transfer of more than $10,000
• Provide evidence of financial circumstances upon request by the Minister within seven days
• The holder must not work with minors or vulnerable people if they have been convicted of an offence involving a minor or a vulnerable person
• If the holder has been convicted of a violent or a sexual offence, they must not contact the victim or the victim’s family.

Unless the Minister is satisfied that the person does not pose a risk to the community, the following two conditions must also be imposed:

• Remain at their notified address between 10pm and 6am, or other specified times, every day
• Wear a monitoring device at all times, 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.

Offences

The amendment introduced three criminal offences relating to breaches of Subclass 070 (Bridging (Removal Pending)) Visa conditions.

Monitoring conditions

Under section 76B of the Migration Act, it is now an offence for a person on a Bridging Visa Subclass 070 to fail to comply with a requirement of the monitoring condition.

This offence is punishable by a maximum penalty of five years imprisonment or a fine of 300 penalty units, or both.

Remaining at notified address

Under section 76C of the Migration Act, it is an offence for a person on a Bridging Visa Subclass 070 with a condition that they remain at a particular address at certain times of day to fail to comply with the requirements of that condition without a reasonable excuse.

This offence is punishable by a maximum penalty of five years imprisonment or a fine of 300 penalty units, or both.

Monitoring device

Under section 76D of the Migration Act, it is an offence for a person on a Bridging Visa Subclass 070 to, without a reasonable excuse, fail to comply with a requirement that:

• they wear a monitoring device at all times;
• they allow an authorized officer to fit, install, repair or remove the device;
• they take steps to ensure that the device remains in good working order;
• they notify an authorized officer as soon as practicable if they become aware that the device or monitoring equipment is not in good working order.

This offence is punishable by a maximum penalty of five years imprisonment or a fine of 300 penalty units, or both.

Mandatory minimum sentence

If a person is found guilty of an offence under any of these three provisions, the court must sentence them to imprisonment for at least one year.

Responses to the amendment

Refugee groups have expressed concerns about the changes, particularly in relation to how rapidly they were rolled out, the lack of oversight or review of conditions that may be imposed on Bridging Visa R recipients, and the lack of community consultation prior to passing the changes.

Conditions such as the requirement to comply with a curfew and wear a monitoring device, in particular, have been criticized as potentially limiting a person’s ability to find employment and participate in the community. These conditions are likely to be in place indefinitely as people placed on Bridging Visa R have no prospect of being removed from Australia.

The Greens have described the changes as ‘draconian’, as replacing one form of detention with another, and as ‘setting people up to fail’ by imposing unrealistic conditions.

The government stated there may need to be adjustments to the legislation after the High Court publishes the reasons for its decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.