Migration Amendment Bill 2024, Migration Amendment (Bridging Visa Conditions) Regulations 2024 - New and Ongoing Matters [2024] AUPJCHR 79 (27 November 2024)

1.1 The committee comments on the following bill and legislative instrument, and in some instances, seeks a response or further information from the relevant minister.

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Bill

Migration Amendment Bill 2024
Migration Amendment (Bridging Visa Conditions) Regulations 2024^[10]

Purpose	The Migration Amendment Bill 2024 seeks to amend the Migration Act 1958 to provide for the cessation of Subclass 070 (Bridging (Removal Pending) visas (BVR), facilitate arrangements for the removal of visa-holders to receiving countries, permit the sharing of criminal history information both domestically and with foreign countries, provide for the reversal of protection findings, and alter the test for where the minister may remove certain BVR visa conditions. The Migration Amendment (Bridging Visa Conditions) Regulations 2024 changes the test for where the minister may impose visa conditions, including curfews or electronic monitoring, on a BVR.
Portfolio	Home Affairs
Introduced	House of Representatives, 7 November 2024 Migration Amendment (Bridging Visa Conditions) Regulations 2024 [F2024L01410] registered 7 November 2024 at 10.13 am 15 sitting days after tabling (tabled in the House of Representatives and the Senate on 18 November 2024). Notice of motion to disallow must be given by 25 March 2025 in the House and by 25 March 2025 in the Senate ^[11]
Rights	Criminal process rights; effective remedy; expulsion of aliens; freedom of movement; health; liberty; non-refoulement; privacy; protection of the family; prohibition on torture and cruel, inhuman or degrading punishment

Cessation of bridging visas

1.2 Schedule 1 of the bill seeks to amend the Migration Act 1958 (the Migration Act) to provide that where a non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa (BVR), their visa will cease where they have ‘permission’ to enter and remain in a foreign country that is party to a ‘third country reception arrangement’, where the minister gives them notice of this.^[12]

1.3 The effect of a visa cancellation is that the non-citizen becomes an unlawful non-citizen and is subject to immigration detention prior to their removal to the foreign country.^[13] This measure does not apply to a child aged under 18 or a person whose protection claim has yet to be determined, and a person cannot be removed to the country they have had a protection finding from.^[14]

1.4 The term ‘permission’ is not defined in the bill, and the provision refers to permission ‘however described’. The explanatory memorandum states that permission may be in the form of a visa granted by, or other authority given by, the foreign country.^[15] Permission to enter the foreign country may be unconditional or conditional on the non-citizen doing one or more things required by the foreign country that the non-citizen is capable of doing before entering the country.^[16]

1.5 These amendments would apply in relation to BVRs, or permissions of a foreign country, granted before, on or after the commencement of these provisions.^[17]

1.6 Schedule 5 of the bill would provide for spending authority for ‘third country reception arrangements’. These are arrangements entered into by the Commonwealth with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.^[18] Where such an arrangement is in place, the Commonwealth may:

1.7 Schedule 2 of the bill would provide for various immunities from civil liability with respect to actions taken in good faith, and acts by foreign countries and persons in foreign countries not taken in good faith. It would provide that:

1.8 The bill would also extend these same immunities from civil liability with respect to any act or thing done, or omitted to be done, in relation to the acceptance or receipt by a regional processing country or another foreign country, or ongoing presence in a regional processing country or foreign country, of an unauthorised maritime arrival taken to a regional processing country, including anything done or omitted to be done under or in relation to an arrangement that relates to the regional processing functions of the relevant country, or relating to a third country reception arrangement or functions.^[22]

Preliminary international human rights legal advice

1.9 Establishing a mechanism by which a BVR may be ceased, meaning that a person becomes an unlawful non-citizen who is liable to mandatory immigration detention, and providing for their removal from Australia, engages and limits multiple human rights, both while those individuals are in Australia, and in circumstances where they have been removed to a foreign country.

1.10 The statement of compatibility identifies that these measures engage and limit numerous human rights. It states:

The Bill is compatible in most respects with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, so long as policies, practices and procedures are in place to ensure that the powers provided in these amendments are exercised consistently with Australia’s human rights obligations, including in relation to removal to third countries. To the extent that the measures in this Bill limit human rights, they do so in order to maintain the integrity of the migration system and protect the safety of the Australian community.

Cessation of BVR and subsequent mandatory immigration detention

1.11 By establishing a mechanism by which certain non-citizens will be subject to mandatory immigration detention in Australia when permission has been granted by a foreign country to accept them, this measure engages and limits the right to liberty. The stated reliance on policies, practices and procedures that are yet to be made (and not subject to parliamentary scrutiny and oversight) raises the question of whether the measures in the bill itself are compatible with human rights.

1.12 The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.^[23]The United Nations (UN) Human Rights Committee has stated that 'arbitrariness' under international human rights law includes elements of inappropriateness, injustice and lack of predictability.^[24]Accordingly, any detention must not only be lawful, it must also be reasonable, necessary and proportionate in all of the circumstances. Detention that may initially be necessary and reasonable may become arbitrary over time if the circumstances no longer require detention. In this respect, regular review must be available to scrutinise whether the continued detention is lawful and non-arbitrary. The detention of a non-citizen pending deportation will generally not constitute arbitrary detention, as it is permissible to detain a person for a reasonable period of time in these circumstances. However, detention may become arbitrary in the context of mandatory detention, where individual circumstances are not taken into account, and a person may be subject to a significant length of detention.^[25]

1.13 The right to liberty may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.14 The statement of compatibility briefly identifies that this measure engages and limits the right to liberty.^[26] The statement of compatibility broadly states that the legitimate objective of the measure is ‘protecting the safety of the Australian community and maintaining the integrity of the migration system’.^[27] Protecting the safety of the Australian community and the integrity of the migration system may be capable of being legitimate objectives for the purposes of international human rights law. However, to be a legitimate objective, the objective must be one that is pressing and substantial, and not one that simply seeks an outcome that is desirable or convenient. In this regard, no information is provided as to whether and how rendering a formerly lawful non-citizen an unlawful non-citizen (who is subject to mandatory immigration detention) protects the integrity of Australia’s migration system. In relation to whether the measure is rationally connected to the objective of community safety, it is unclear why the cessation of a non-citizen’s BVR and their removal from Australia would necessarily achieve that objective. The explanatory materials provide no justification or evidence to identify any specific (or heightened) threat that BVR holders pose to the Australian community.^[28]

1.15 In assessing the proportionality of any limit on human rights, it is necessary to consider whether the measure is sufficiently circumscribed and accompanied by sufficient safeguards, whether there is the capacity to treat different cases differently, whether any less rights restrictive alternatives could achieve the same stated objective, and whether there is the possibility of oversight and the availability of review.

1.16 The statement of compatibility states that if a foreign country with which Australia has a third country reception arrangement provides the person with permission to enter and remain, this ‘may’ mean that the person’s removal ‘will become reasonably practicable’.^[29] However, it is unclear whether the permission granted by a foreign country (which is the trigger for the mandatory visa cessation) denotes immediate permission to enter that country. The statement of compatibility does not identify what ‘permission (however described)’ may mean and how immediate it may be for the non-citizen to be removed from Australia. For example, the Commonwealth could enter into an arrangement with a third country and the third country may grant permission for non-citizens to enter, but there may be a significant intervening period before the third country is in a position to accept non-citizens, for example where ‘reception’ facilities require construction. It is unclear whether such ‘permission’ would constitute ‘permission’ for the purposes of the bill, such that the relevant non-citizens could be in immigration detention for a significant time while the ‘reception’ facilities are constructed. The explanatory materials draw on the test laid down by the High Court of Australia for when immigration detention will be permissible (that is, where there is a real prospect of the person’s removal from Australia becoming practicable in the reasonably foreseeable future).^[30] However, that judgment did not identify what constitutes ‘the reasonably foreseeable future’, ‘practicable’ or ‘real prospect’. It is unclear, therefore, whether a person could be subject to extended immigration detention for years in Australia while awaiting their removal to a foreign country pursuant to this measure, on the basis that because of this measure they may be removed to that country at some undefined point in the future.

1.17 Further, a foreign country may give permission to accept a person upon certain conditions being fulfilled. The explanatory materials state that this could include a requirement to provide evidence of identity but otherwise provides no further detail on what kinds of conditions might be required, whether the individual would have any capacity to challenge them, and what the effects of non-compliance with the conditions would be.^[31]If the kinds of conditions set were unattainable or unrealistic this may mean that affected persons are subject to extended immigration detention.

1.18 No information is provided as to whether any less rights restrictive alternatives could achieve the same stated objective (for example, allowing the person to remain in the community subject to a BVR unless and until a relevant foreign country is ready to accept them). It is also unclear what (if any) oversight of the measures there would be, and whether any review would be available (noting that the cessation of a BVR would be mandatory, and not a decision in relation to which review could be sought).

Removal under a third country reception arrangement

1.19 Depending on the circumstances in practice, the removal of a non-citizen to a foreign country under a third country reception arrangement may engage and limit further human rights, including freedom of movement, protection of the family, non-refoulement, prohibition on torture and cruel, inhuman or degrading treatment or punishment and the right to an effective remedy.

1.20 The statement of compatibility states that it is not intended that Australia will owe human rights obligations once persons leave Australia:

With respect to the measure regarding spending authority for third country reception arrangements, the Australian Government’s long-standing view is that Australia’s human rights obligations are essentially territorial. Persons subject to third country reception arrangements would be outside Australia’s territory. Australia will also owe human rights obligations with respect to individuals who are outside Australia’s territory but within its ‘effective control’.

In countries with which Australia enters into a third country reception arrangement, there is no intention that Australia will exercise effective control. In particular, the amendments specifically provide that the Commonwealth may take actions, that do not include exercising restraint over the liberty of the person, in relation to third country reception arrangements or functions. As such, Australia would not be detaining or otherwise exercising physical control over persons under third country reception arrangements.^[32]

1.21 However, the question of how far Australia’s human rights obligations extend to individuals outside its territory is complex.^[33] It is possible for Australia to have ‘effective control’ of persons even if formal legal authority over those persons lies with another state.^[34] The 'effective control' test under international human right law is essentially one of sufficient control and the question as to whether Australia is exercising sufficient control and authority is a question of fact and degree.^[35]

1.22 Thus, while the statement of compatibility states that the Commonwealth has no intention to exercise effective control, the test is not one of intention but whether in fact Australia is exercising sufficient control. The measure proposes that the Commonwealth cannot take or cause to be taken any action that includes exercising restraint over the liberty of a person, but would provide that it can make payments to a third country to set up detention facilities to detain individuals, and do anything else incidental or conducive to the taking of any action in relation to the third country reception arrangement or their third country reception functions.^[36] While this appears to suggest that Australia would not be permitted to cause the detention of a person in the foreign country, it is not clear whether it could include, for example: establishing and funding contracts for the provision of accommodation, food and healthcare services in detention; or funding services which facilitate the monitoring of individuals in the foreign country. Given that the bill would only establish authority to spend money on third country reception arrangements, and provides little detail as to what arrangements may subsequently be authorised, the question of whether Australia exercises ‘effective control’ over individuals subject to third country reception arrangements would appear likely to depend on how the third country reception arrangements are implemented in practice. Given the powers Australia has to enter into arrangements with third countries and facilitate actions in those countries and provide spending authority for such arrangements, it would appear possible that Australia could be regarded as having effective control over persons removed pursuant to this measure (in which case Australia would owe human rights obligations to those persons).

1.23 If Australia did have ‘effective control’ over individuals under a third country reception arrangement as a matter of international law, their removal from Australia, subsequent treatment in the foreign country, and any risk of return to a country where they had faced persecution, would engage Australia’s human rights law obligations.

1.24 Removing a person from Australia may engage and limit the right to freedom of movement, which includes the right to enter one's own country.^[37] Where it results in separation of that person from their family in Australia, this may engage the right to protection of the family, which requires the state not to arbitrarily or unlawfully interfere in family life and to adopt measures to protect the family.^[38] This right may be engaged where a person is expelled from a country without due process and is thereby separated from their family.^[39] While there is significant scope for states to enforce their immigration policies and to require departure of unlawfully present persons, where a family has been in the country for a significant duration of time additional factors justifying the separation of families going beyond a simple enforcement of immigration law must be demonstrated in order to avoid a characterisation of arbitrariness or unreasonableness.^[40] These rights may be permissibly limited where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. This test is set out below.

1.25 Were a person exposed to a risk of poor treatment in the foreign country, this may engage the absolute prohibition against torture and other cruel, inhuman and degrading treatment or punishment. This right may never be permissibly limited. The statement of compatibility does not identify that this right may be engaged, and so no assessment of its compatibility is provided.

1.26 If there were a risk that the person’s removal to the foreign country led to that person being refouled to a country from which they had sought protection from persecution (‘chain refoulement’), this may engage the right to non-refoulement. Australia has 'non-refoulement' obligations under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.^[41] This means that Australia must not return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, such as the death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment.^[42] This is an absolute right and may never be permissibly limited.

1.27 To the extent that a person is limited in their ability to effectively challenge a decision which may lead to their removal, possibly to a country where they would face persecution, torture or other serious forms of harm, there is a risk that this measure may not be consistent with Australia's non-refoulement obligations, which include the requirement for independent, effective and impartial review of non-refoulement decisions. The measure may also not be consistent with the right to an effective remedy.^[43] Non-refoulement obligations are absolute and may not be subject to any limitations.^[44] The obligation of non-refoulement requires an opportunity for independent, effective and impartial review of decisions to deport or remove a person.^[45] The statement of compatibility notes that the measure may apply to persons who have a protection finding (meaning they have been found to engage Australia’s non-refoulement obligations with respect to certain countries).^[46] It states that:

1.28 The safeguards identified in the statement of compatibility have the capacity to serve as important safeguards to ensure a person is not returned to a country in a way that would breach Australia’s obligations of non-refoulement. However, with respect to foreign countries providing reception arrangements, the statement of compatibility states that the government ‘would ensure that any such arrangements are consistent with Australia’s non-refoulement obligations, including that there are mechanisms to guard against chain refoulement by the third country’. It also states that ‘it is intended that other safeguards will be used and/or implemented as a matter of practice, policy and procedure to ensure that Australia is prepared and able to comply with its non-refoulement obligations’. However, no information is provided as to what those safeguards may be, why they do not already exist, why they are not included in the bill itself, and whether and how they will be sufficient to protect against the risk of direct refoulement (to a foreign country providing reception arrangements) or chain refoulement (from the reception country to another country).

1.29 Further, as the bill would establish wide-ranging immunities for the Commonwealth from civil liability (including with respect to actions in foreign countries not done in good faith), this engages and limits the right to an effective remedy. The right to an effective remedy requires the availability of a remedy which is effective with respect to any violation of rights and freedoms recognised by the International Covenant on Civil and Political Rights.^[48] While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), states must comply with the fundamental obligation to provide a remedy that is effective.^[49] The statement of compatibility states that:

[T]he amendment does not preclude remedies for actions that were not carried out in good faith or remedies through the criminal justice system, administrative law remedies, Constitutional remedies, remedies for actions that were not carried out in good faith or were beyond the exercise of powers or the performance of functions or duties, or preclude a person from initiating complaints through bodies such as the Commonwealth Ombudsman or the Australian Human Rights Commission.

To the extent that the amendments limit some remedies for certain persons within Australia’s jurisdiction, the Government considers this appropriate to aims such as maintaining the integrity of the migration system.^[50]

1.30 The powers the Commonwealth and officers of the Commonwealth have in assisting third country reception arrangements is broad, and the statement of compatibility has not explained why such an immunity is necessary and why it needs to be so broad. While it identifies the potential availability of some remedies for criminal conduct or actions undertaken without lawful authority (while a person is in Australia), it is unclear in practice whether those remedies would be effective with respect to a breach of a person’s rights. It is also unclear why, if Australia does not or will not have effective control over persons who are affected by these measures once they are in a foreign country, that aspect of the proposed immunity is necessary.

1.31 With respect to the rights to protection of the family and freedom of movement, the statement of compatibility states that the strength, nature and duration of a person’s ties to Australia would have already been considered as part of the decision to cancel the person’s substantive visa on character grounds, or to not revoke a mandatory visa cancellation.^[51] However, it is not clear whether any contemporaneous assessment of such matters would be permitted, having regard to a person’s circumstances at the time their BVR would be ceased under this measure.

1.32 As to whether there are less rights-restrictive ways of achieving the same objective, it is unclear whether other measures have been considered which could allow an individual to stay in Australia, and not be separated from their family (where relevant). In relation to the need to accommodate the risk posed by an individual to the Australian community, the committee has previously commented that, in relation to individuals who have been convicted of a crime, it would appear that this is a risk more appropriately managed by the courts in the sentencing process and then managed in the community, such that they do not require further detention and removal from Australia following the completion of their sentence.^[52] Further, where consideration of a person’s family circumstances has not taken place, the statement of compatibility states that there may be opportunities for that consideration to take place as part of a ministerial intervention consideration. However, it is unclear to what extent an individual’s family circumstances are considered and in what circumstances they may not be, and how readily review is available.

Committee view

1.33 The committee notes that this bill seeks to amend the Migration Act 1958 to provide for the mandatory cessation of a Subclass 070 (Bridging (Removal Pending)) visa (BVR) where Australia has entered into third country reception arrangements with foreign countries to remove certain non-citizens.

1.34 The committee notes that detaining and removing non-citizens may engage and limit several human rights. The committee considers that further information is required to assess the compatibility of this measure with these rights. As such, the committee seeks the minister's advice in relation to:

Reversing a protection finding

1.35 Schedule 1 Part 2 of the bill seeks to amend the Migration Act to expand the circumstances in which the minister may determine that a protection finding would no longer be made in relation to a person.^[53]

1.36 Section 197D currently provides that a protection finding may only be reversed in relation to specific unlawful non-citizens and for the purposes of subsection 197C(3), namely, where the non‑citizen has made a valid application for a protection visa that has been finally determined; and in the course of considering the application, a protection finding was made with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and none of the following apply: the decision in which the protection finding was made has been quashed or set aside; or a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6).^[54]

1.37 The bill would allow the minister to revisit a protection finding in relation to a broader range of non-citizens, including lawful non-citizens (holders of Subclass 070 (Bridging (Removal Pending)) visas, Subclass 050 (Bridging (General)) visas granted on ‘final departure’ grounds), and the holder of a type of visa which is prescribed by regulation and subject to a requirement that the person make arrangements to depart Australia.^[55] The bill would repeal and replace subsection 197D(1) to provide that the minister may make a decision that a protection finding would no longer be made in relation to a person (that is, to reverse a protection finding) if: the non-citizen is a ‘removal pathway non-citizen’; they have made a valid application for a protection visa that has been finally determined; and in the course of considering that application, a protection finding was made with respect to a country (whether or not the protection visa was refused, or granted and subsequently cancelled).^[56] It also seeks to amend subsection 197D(2) by omitting reference to ‘an unlawful non-citizen to whom paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a protection visa’ and substituting it with ‘the non-citizen’.^[57] The bill would also provide that section 197D, as amended, applies in relation to a protection finding, whether the protection finding is made before, on or after the commencement of the item.^[58]

Preliminary international human rights legal advice

Rights to protection of the family; health; freedom of movement; expulsion of aliens; and non-refoulement

1.38 Currently, the power to reverse a protection finding can only be exercised in relation to unlawful non-citizens (that is, certain non-citizens without a visa). This amendment would enable the exercise of that power in relation to those lawful non-citizens (that is, non-citizens with a visa) who are subject to the removal pathway.^[59]

1.39 The statement of compatibility with human rights states that this measure engages the prohibition on the expulsion of aliens without due process, which provides that an alien lawfully in a country may be expelled therefrom only in pursuance of a decision reached in accordance with law and with due process.^[60] It states that a decision under section 197D may mean that a person becomes available for removal once their bridging visa ceases, and that the person is able to submit reasons why a protection finding should still be made as part of the section 197D decision-making process and have that decision reviewed by a merits review tribunal pursuant to existing provisions of the Act.^[61] It also states that where a decision is made to cease a BVR because the person may be able to be removed following a section 197D decision, that decision is subject to natural justice processes and judicial review. These processes may mean that, in practice, there are sufficient procedures in place such that a reversal of a protection finding may be compatible with the prohibition against the expulsion of aliens without due process. Further, if a reversal of a protection finding (and subsequent removal of the person to the relevant country) did accurately and appropriately determine that the person was no longer at risk of persecution, and so no such risk arose as a matter of fact, it may also be compatible with Australia’s obligations in relation to non-refoulement.^[62] However, much will depend on the quality of the decision-making as to whether a person is owed protection obligations.

1.40 The expansion of the power to reverse a protection finding to include lawful non-citizens may also engage and limit the right to health, having regard to the potential for a possible reversal of a protection finding, or actual reversal, to have a detrimental impact on an affected person’s mental health.^[63] The right to health refers to the right to enjoy the highest attainable standard of physical and mental health.^[64] The negative impacts of insecure visa status for refugees has, in particular, been considered in academic research.^[65]

1.41 Further, depending on how the power to reverse a protection finding was used in practice, it may engage and limit other human rights. In this regard, proposed paragraph 199B(1)(d) would empower the minister to prescribe any Australian visa as one in relation to which a visa-holder would be a ‘removal pathway non-citizen’, provided that the visa was subject to a criterion requiring the person to make arrangements to depart Australia. If the minister prescribed a large category of visas to which the removal pathway directions could apply, including visas granted to long-term residents, such as spouse visas or permanent residence visas, the effect on those who have been in Australia for a long period could be significant. If such visas were so prescribed, it would appear that a person who had a protection finding made in relation to them many years ago, and who had since lived for many years in Australia, could therefore be vulnerable to a reversal of that protection finding (regardless, it would appear, of whether that protection finding was relevant to their current visa status). If the power was used in relation to people who had been in Australia for a substantial period of time, including those who had established families and personal lives in Australia, it may engage and limit the rights to protection of the family and to a private life. The right to privacy includes the right to a private life, which is linked to notions of personal autonomy and human dignity.^[66] It includes the idea that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others. It may also engage and limit the right to freedom of movement, which includes the right to enter, remain, or return to one's 'own country'.^[67]

1.42 The statement of compatibility does not identify that this measure engages and may limit the right to health, or whether (and to what extent) it may engage and limit the right to a private life, and so no analysis is provided in relation to these matters. The statement of compatibility states that this measure does not directly engage the right to freedom of movement, but acknowledges that some persons who are removal pathway non-citizens ‘may be long-term residents of Australia who had their substantive visa cancelled on character grounds’.^[68] It states that the ‘strength, nature and duration of the person’s ties to Australia would have already been considered as part of the decision to cancel their substantive visa on character grounds’, which would help ensure that Australia was not the person’s ‘own country’. The statement of compatibility states that this measure may engage rights relating to families and children, as a person holding a bridging visa may be able to be removed, which may separate them from their family members in Australia.^[69]

1.43 These rights may be limited where the limitation: seeks to achieve a legitimate objective (one which, in the case of the right to freedom of movement, is necessary to protect national security, public health or morals or the rights and freedoms of others); is rationally connected to (that is, effective to achieve) that objective; and proportionate.

1.44 The explanatory materials state that the purpose of these amendments to section 197D is to facilitate the lawful removal of non-citizens who are on a removal pathway, and that they apply only in circumstances where a protection finding has not been made in relation to the non-citizen, or where the Minister determines that a non-citizen is no longer a person in respect of whom any protection finding would be made.^[70] The statement of compatibility further states that the measure:

would expand the situations in which a decision under section 197D can be made, that a person is no longer a person in respect of whom any protection finding would be made, to encompass persons who hold certain bridging visas as defined in new section 199AB, in addition to persons who are unlawful non-citizens. As such persons are on a removal pathway following the refusal or cancellation of a substantive visa, usually on character or security grounds, and a protection finding may be a key barrier to their removal from Australia, it is appropriate that reconsideration of their circumstances, to see if they continue to engage Australia’s non-refoulement obligations, can take place. The Bill does not provide a mechanism to reconsider the protection findings of current protection visa holders, or former protection visa holders who now hold visas such as Resolution of Status Visas or Resident Return Visas.^[71]

1.45 As noted above, any limitation on a right must be shown to be aimed at achieving a legitimate objective that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting rights. While regulating Australia’s migration system is a legitimate objective, it is not clear that there is a pressing need to extend the power to reverse a protection finding in relation to a potentially significant number of lawful visa holders. The statement of compatibility states:

[S]ome removal pathway non-citizens have a ‘protection finding’. The Bill would expand the situations in which a decision under section 197D can be made, that a person is no longer a person in respect of whom any protection finding would be made, to encompass persons considered to be ‘removal pathway non-citizens’ (as defined in new subsection 5(1)), to include persons who are both lawful or unlawful non-citizens. As such persons are on a removal pathway following the refusal or cancellation of a substantive visa, usually on character or security grounds, and a protection finding may be a key barrier to their removal from Australia...^[72]

1.46 No information is provided to demonstrate that there is a pressing and substantial need to be able to reverse protection findings with respect to lawful non-citizens noting that a protection finding may be a barrier to removing such persons from Australia.

1.47 In relation to proportionality, the statement of compatibility states that in many cases the impact of the person’s removal from Australia on their family members would have already been considered as part of the decision to refuse or cancel their protection visa on character grounds, and ‘there may be opportunities for that consideration to take place as part of a ministerial intervention consideration’.^[73] However, under the Migration Act there are certain bases on which a decision to cancel a visa on character grounds is not discretionary, but mandatory.^[74] This includes when a person has been sentenced to imprisonment for 12 months or more (which incidentally would include imprisonment for failure to comply with a removal pathway decision). In relation to the cancellation of such visas, no consideration would have been given to a person’s connection to Australia at the time the visa was cancelled, as there is no discretion to consider any individual circumstances. Further, the statement of compatibility does not identify that, because the ‘removal pathway non-citizen’ category could (as a matter of law) be expanded to include more Australian visas, the measure could operate in relation to a far more substantial group of non-citizens, including people with extensive social connections, families and private lives in Australia. This raises questions as to whether the measure is sufficiently circumscribed. Further, while the availability of this discretion may have safeguard value, its discretionary nature means there is a risk that it may be inadequate in practice. In this regard, it is not clear what information the minister would use to reverse a protection finding in relation to a person (particularly a protection finding made several years prior), particularly if the process did not permit the affected person to submit information or reasons.

Committee view

1.48 The committee notes that providing for the reversal of a previous protection finding relating to a non-citizen engages and limits several human rights.

1.49 The committee considers further information is required to assess the compatibility of this measure with this right, and as such seeks the minister's advice in relation to:

Disclosure of criminal history information, including to foreign countries

1.50 Schedule 3 of the bill seeks to establish broad information sharing powers. It would provide that the minister or an officer of the department may collect, use or disclose to a person or body, ‘criminal history information’ for the purpose of directly or indirectly informing the performance of a function or the exercise of a power under the Migration Act or the Migration Regulations 1994 (the Regulations).^[75]

1.51 ‘Criminal history information’ means information about an individual’s criminal history, including any charge against the individual, whether or not they have been found to have committed the offence; any finding that the individual committed such an offence, whether or not the individual has been convicted of the offence; any conviction of the individual of such an offence, whether or not the conviction is spent; and any other result of a proceeding for the prosecution of the individual for an offence.^[76]

1.52 Any criminal history information disclosed to a person or body may be collected, used or disclosed to other persons or bodies for the purpose of providing advice or recommendations, directly or indirectly, to the minister or an officer in relation to the performance of functions or the exercise of powers under the Migration Act or Regulations.^[77] This information may also be collected, used or disclosed under other provisions of the Migration Act, Regulations or any other law of the Commonwealth.^[78]

1.53 The bill also seeks to provide that any collection, use or disclosure of criminal history information which occurred before the commencement of the bill would be retrospectively validated,^[79] despite any effect that may have on the accrued rights of any person. A note to this provision provides that this may include the making of a decision under the Migration Act or the Regulations.^[80] Retrospective validation would also apply to civil and criminal proceedings instituted before the commencement of the item, including where those proceedings have concluded before the commencement of the bill.^[81]

1.54 In addition, schedule 4 of the bill would provide that the minister or officer of the department may collect, use or disclose information, including personal information (which may include criminal history information), to the government of a foreign country in relation to removal pathway non-citizens^[82] and also in relation to former removal pathway non-citizens who do not hold a substantive visa or a criminal justice visa.^[83] The purposes for which these disclosures may be made include:

1.55 The disclosure may be made to any level of government of a foreign country, including a local or regional government body or an agency or authority of the government of the foreign country.^[85]

Preliminary international human rights legal advice

1.56 By providing for the collection, use and disclosure of criminal history information to a range of authorities in Australia, and the collection, use and disclosure of personal information (which may include criminal history information) to foreign countries, these measures engage the right to privacy.^[86]

1.57 The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[87] It also includes the right to control the dissemination of information about one's private life. The right to privacy may be subject to permissible limitations where the measure pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.58 The statement of compatibility identifies that the measure engages the right to privacy.^[88] As to legitimate objective, the statement of compatibility states that the objective behind sharing of information within Australia would be to ensure that criminal history information can be used by the Australian Border Force Community Protection Board^[89] in making recommendations about visa conditions to be imposed, and to ensure that such criminal history information can be used in character-related decision-making under the Migration Act to broadly protect the community by identifying persons ‘of character concern’.^[90]

1.59 In relation to the proposed disclosure of information to foreign countries, the statement of compatibility states that this is to establish whether the country will grant that person permission to enter and remain in that country. It further states that:

The ultimate objective of such disclosures is to be able to effect the removal from Australia of non-citizens who are on a removal pathway because they do not have a substantive visa to remain in Australia – in many cases this is because their substantive visa was refused or cancelled on character grounds – but for whom there have been barriers to effecting their removal, particularly to their country of nationality.^[91]

1.60 Protecting the Australian community from risks of harm would generally constitute a legitimate objective. However, a legitimate objective must also be one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the right. In this regard, no information is provided as to the specific risk that persons in this cohort pose to the Australian community (particularly when compared with persons – including people who have been convicted of serious criminal offences – in the broader community). It is therefore unclear whether and how persons who would be affected by this measure pose some risk which is pressing and substantial enough to warrant limiting their right to privacy in this manner.

1.61 As to rational connection, it is unclear how the sharing of a broad range of criminal history information (including information about convictions which are spent and therefore occurred some time ago, and circumstances in which the person was never convicted of an offence) would be effective to achieve the stated objectives of the measure. The statement of compatibility does not explain how such a broad scope of information (particularly information about criminal charges where there was no conviction, and information about criminal charges which an Australian citizen would not be required to disclose because it was so old) would be relevant to a contemporaneous assessment of the person’s character, or the likelihood of a foreign country agreeing to accept them.

1.62 A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. In this respect, it is necessary to consider a number of factors, including whether a proposed limitation is sufficiently circumscribed; whether it is accompanied by sufficient safeguards; and whether any less rights restrictive alternatives could achieve the same stated objective.

1.63 As to whether the measure is sufficiently circumscribed, the statement of compatibility states that the measure provides ‘clarity around information about criminal history information being considered for the purposes of the Migration Act and Regulations’, consistent with the government’s existing understanding of the use of the information, and ‘ensures that criminal history information may also be used by the Community Protection Board, and the experts who advise the Board’.^[92] The power to collect, use and disclose information is broad, and can be done for the purpose of informing, directly or indirectly, the performance of a function or the exercise of a power under the Migration Act or Regulations. This would be a very broad range of purposes. Further, the bill would permit secondary use and disclosure of information, and would override other laws of the Commonwealth, states or territories regardless of whether they create offences for the sharing of such information (including spent convictions information). It would include the sharing of information to foreign countries, and for a broad range of purposes which includes anything incidental or conducive to taking actions in relation to third country reception arrangements or functions and making payments towards them.^[93] Further, the bill seeks to establish broad ranging immunity from civil liability for activities associated with the broader visa cancellation and foreign country reception scheme this bill seeks to establish, which would mean an individual whose personal information is shared pursuant to these measures would have limited recourse for any breach of their human rights which resulted. In addition, the measure seeks to retrospectively validate the sharing of criminal history information which has already occurred, which suggests that such disclosure has taken place (potentially in breach of secrecy provisions which would otherwise apply to that disclosure). The breadth of this proposed information use and disclosure scheme suggests that the measure may not be sufficiently circumscribed.

The power to collect, use and disclose information under this provision is discretionary, and policy guidance will guide officers to exercise this power in a way that is necessary, reasonable and proportionate in the individual circumstances, including, for example, that no more information than is necessary to achieve these removal objectives is to be disclosed.^[94]

1.65 The bill itself provides for no safeguards on the collection, use and disclosure of information. No information is provided as to why any safeguards which will be set out in policy documents are not contained in the bill itself. As the content of those policy documents are not apparent, the extent to which other individuals, for example members of the Community Protection Board or the experts who advise the board, and members of foreign governments who have received personal information, would be required to consider and manage the privacy of individuals’ information (if at all) is not clear. As such, their potential safeguard value (if any) is unclear.

1.66 The statement of compatibility does not address why less rights restrictive means to achieve the same aim are insufficient. It is unclear why there needs to be such a breadth of information sharing powers in order to adequately make a decision under the Migration Act and Regulations or to assist a foreign country in removing a non-citizen from Australia. It is unclear why other less rights restrictive measures (for example, providing a legislative basis to require that adequate privacy protections are in place before information is shared and to protect from unauthorised disclosure to a foreign country) have been considered to be ineffective to achieve these aims.

1.67 If the use and disclosure of such information led to a decision to cancel a person’s visa and remove them to a foreign country, there could be a risk that the measures may (depending on the circumstances) engage and limit further rights, such as the right to life (if a person were exposed to the risk of the death penalty in a foreign country), the prohibition on torture and cruel, inhuman or degrading treatment or punishment (if they were exposed to such a risk in a foreign country as a result of the disclosure), or non-refoulement (if the disclosure contributed to their return to a country in which they faced persecution).

1.68 The right to life imposes an obligation on Australia to protect people from being killed by others or from identified risks. As Australia has prohibited the death penalty, this prohibits Australia from deporting or extraditing a person to a country where that person may face the death penalty.^[95]

1.69 The statement of compatibility does not identify that these rights are engaged. These concerns, and similar concerns with respect to potentially exposing a person to a risk of torture or cruel treatment and potentially to a risk of chain refoulement, arise having regard to the kinds of personal information and criminal history that would be able to be shared pursuant to this measure. Depending on the nature of an individual’s criminal history information (which may include charges against the individual that they were found not to have committed), this could include information that may expose an individual to a risk of harm depending on the foreign country, for example information that an individual is LGBTIQA+. The extent of such a risk would depend on the foreign country to which they were being sent (and any relevant domestic laws, practices or policies, for example laws criminalising homosexuality) and the extent of any safeguards Australia would put in place to alleviate such a risk. On the face of the bill, it is unclear what foreign countries may participate in this scheme, and what requirements (if any) those countries would be required to meet in order to protect against such risks of harm. There are no safeguards with respect to these concerns on the face of the bill to ensure that personal information is not shared with a foreign government in circumstances that would or may expose a person to the death penalty or lead to a person being tortured, or subjected to cruel, inhuman or degrading treatment or punishment.

Committee view

1.70 The committee notes that providing for the collection, use and disclosure of criminal history information under the Migration Act 1958 and Migration Regulations 1994 in Australia, and the sharing of personal information, including criminal history information, to the governments of foreign countries, engages and limits the right to privacy, and may engage and limit further human rights.

1.71 The committee considers further information is required to assess the compatibility of this measure with these rights, and as such seeks the minister's advice in relation to:

Enforceable bridging visa conditions

1.72 Schedule 6 of the bill seeks to amend the Migration Act with respect to Subclass 070 (Bridging (Removal Pending) visas (BVRs). An associated legislative instrument, the Migration Amendment (Bridging Visa Conditions) Regulations 2024, which was registered on 7 November 2024, amended the requirements relating to the issue of those visas subject to certain conditions.

1.73 Given the complexity of these measures, it is useful to set out the background to this legislative framework.^[96]

The Regulations

1.74 On 16 November 2023, the Migration Amendment (Bridging Visa Conditions) Act 2023 amended the Migration Act 1958 and the Migration Regulations 1994 (Migration Regulations) to grant non-citizens, for whom there is no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future, a BVR subject to specified mandatory visa conditions – non-compliance with which is a criminal offence carrying a mandatory minimum sentence of at least one year imprisonment.^[97] It also amended the Migration Regulations to provide that certain conditions (including imposition of a curfew and electronic monitoring) must be imposed on the visa unless the minister is satisfied that the holder does not pose ‘a risk to the community’.^[98]

1.75 The Department of Home Affairs advised that, at 1 July 2024, there were 182 NZYQ-affected BVR holders in the community (168 of whom had been released from immigration detention pursuant to the High Court judgment).^[99]

1.76 On 6 November 2024, the High Court of Australia determined that the elements of the Migration Regulations relating to electronic monitoring and the imposition of a curfew were constitutionally invalid because they constituted the imposition of punishment, which only the judiciary has the constitutional authority to impose.^[100]Two key elements of this conclusion were:

On its proper construction, cl 070.612A(1) is broad and flexible and authorises uncertain and unpredictable outcomes. It requires the monitoring and curfew conditions to be imposed on the visa of every person within the class unless the Minister can reach the specified state of satisfaction. That specified state of satisfaction involves a wide conception of protection of the Australian community, which extends well beyond protection from the risk of harm arising from persons within the class committing future offences and does not specify the degree or extent of: (a) the protection that is sought to be achieved; (b) the risk to such protection before the Minister may reach the required state of satisfaction; or (c) the required state of satisfaction other than at the level of "reasonable necessity" which, properly construed, means only appropriate or adapted and not essential or indispensable. This is why the plaintiff's description of cl 070.612A(1)(a) and (d) as "free-floating", "elastic", and "abstract and ill-defined", is correct.^[101]

The required state of satisfaction in cl 070.612A(1)(a) and (d) involves a positive state of mind about a negative stipulation ("the Minister is satisfied that it is not reasonably necessary to impose that condition") so that if the Minister cannot be so satisfied the conditions must be imposed, meaning that the provision resolves all doubt and uncertainty in favour of the imposition of the conditions. It does so, moreover, in circumstances where the person's right to make representations against the conditions being imposed exists only after the conditions have been imposed. In the case of the power to impose the impugned conditions, therefore, the power can be exercised even where it cannot be and has not been established that the imposition of the condition is reasonably necessary for the achievement of the purported legitimate non-punitive purpose because the default position is that the Minister imposes the condition. Indeed, there may be cases where the Minister never has the information necessary to meaningfully assess whether the imposition of the condition is not reasonably necessary for the protection of the Australian community. In these cases, the condition will generally remain imposed for up to 12 months, notwithstanding that it is not reasonably necessary to impose the condition to protect any part of the Australian community. The law is framed such that, Ch III aside, the consequences set out above may result.^[102]

1.78 On 7 November 2024, the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (the amending regulations) were registered on the Federal Register of Legislation, to take effect from 10.13 am that day. The amending regulations provide that for each of the four conditions that may be imposed on a BVR-holder, the minister must impose the condition if:

for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.^[103]

1.79 The amendment to subsection 070.612A thereby reverses the required state of mind required of the minister before they may impose relevant conditions.

1.80 A ‘serious offence’ would mean a criminal offence against a state or federal law punishable by at least five years imprisonment where the relevant conduct involved (or would involve), specific matters including: loss of life or serious personal injury (or risk thereof); sexual assault; possession of child abuse material; child exploitation; domestic or family violence; threatening or inciting violence towards a person or group of persons on the ground of an attribute; people smuggling or human trafficking.^[104]

1.81 The rules of natural justice do not apply to the making of a decision to grant a first BVR.^[105] This means the minister is not required to invite the affected person to make representations about proposed conditions. Once applied, these visa conditions remain in place for 12 months (although nothing prevents another BVR being granted to the non‑citizen, before or after the 12‑month period ends).^[106] Where a BVR-holder is subject to a condition requiring them to remain at a particular address between certain times of the day, or requiring them to wear and take other action relating to a monitoring device, they are liable for a range of offences where they fail to comply with the condition. The offences are punishable by 5 years imprisonment, or 300PU (currently $93,900) or both, and subject to a mandatory minimum sentence of at least one year imprisonment.^[107]

The Migration Act

1.82 In addition, schedule 6 of the bill seeks to amend section 76E of the Migration Act. Section 76E provides a mechanism for a visa holder who has been granted a BVR subject to conditions pursuant to the regulations, to make representations relating to the grant of a second BVR without any one or more of those conditions, and for the minister to decide whether or not to grant the second BVR accordingly. While the rules of natural justice do not apply to decisions to grant a first BVR,^[108] the minister is required to invite the visa-holder to make representation within a prescribed period as to why that first visa should not be subject to one or more of those conditions. It provides that the minister must grant the visa-holder a second BVR that is not subject to any one or more of the conditions relevantly prescribed if: the non‑citizen makes representations in accordance with the invitation; and the minister ‘is satisfied that those conditions are not reasonably necessary for the protection of any part of the Australian community’.

1.83 The bill would amend section 76E to provide that the minister must grant a non‑citizen a second BVR that is not subject to any one or more of the conditions relevantly prescribed if:

1.84 It would also provide that in determining whether to grant a visa in accordance with subsection (4), the minister must decide whether to impose each condition prescribed for the purposes of paragraph (1)(a) ‘in the same order as required by the regulations’.^[110]

1.85 This amendment would apply both prospectively and retrospectively, including in relation to a BVR:

Preliminary international human rights legal advice

1.86 As the committee noted when these conditions were first introduced,^[112] being electronically monitored at all times and subject to eight-hour periods of home detention may be regarded as the imposition of a criminal penalty for the purposes of international human rights law. Although the committee raised this issue previously, the statement of compatibility accompanying the amending regulation does not identify whether the imposition of these conditions may, in and of themselves, constitute a criminal penalty under international human rights law.

1.87 In assessing whether a penalty may be considered ‘criminal’ in nature under international law, it is necessary to consider:

1.88 While the visa conditions are not classified as a ‘criminal’ penalty under domestic law, this is not determinative as the term 'criminal' has an autonomous meaning in international human rights law. As to the nature and purpose of the conditions, the conditions attach to the bridging visas granted primarily to the NZYQ cohort rather than the public in general. The stated objectives of the conditions include: for the purposes of community safety, to mitigate the risk posed by impacted BVR holders to the Australian community, and to deter the individual from committing ‘further offences’;^[113] and to ensure compliance with visa conditions and to prevent ‘absconding behaviour’ (contrary to the government’s efforts to facilitate the person’s removal).^[114]However, as the conditions significantly interfere with multiple human rights, it is arguable that together they may be so severe as to constitute a 'criminal' penalty for the purposes of international human rights law.

1.89 The High Court of Australia recently made several pertinent observations in this regard (with respect to the correct classification of these conditions as being prima facie punitive under Australian law). With respect to the imposition of a curfew, the Court observed:

The detention imposed by the curfew condition is neither trivial nor transient in nature. For one-third of every day, the person is confined to a specified place. And they are required to remain at that specified place. The person is confined because if they leave the notified address, they will commit a criminal offence and be subject to a mandatory minimum sentence of one year in prison. Further, because of the requirement they remain at a notified address for one-third of the day, the person's liberty to remain in the community during the other two thirds of the day is also constrained. The person cannot travel any distance that would prevent them from returning in time to a "notified address"...[S]everal considerations dictate the characterisation of [this condition] as prima facie punitive. First, the curfew condition involves a deprivation of liberty. Second, that deprivation of liberty is material and relatively long-term. Third, the deprivation of liberty applies and will apply to all persons within the class unless the Minister reaches the specified state of satisfaction.^[115]

[N]o person wearing the monitoring device, while awake, could become unaware of its presence. Its continued presence on the body, whilst not a cause of pain or physical discomfort, cannot be described as only a slight or modest interference with bodily integrity. One reason a person subject to the monitoring condition could not forget or ignore the monitoring device is because they are instructed to charge it twice a day for at least 90 minutes each time (and it vibrates if its charge is low)...The monitoring condition also effects an involuntary restraint on the liberty of the person wearing the monitoring device. The practical effect of the charging requirement and the other requirements to keep the device in good working order is to prevent an individual from being separated for an extended period from any place that has access to a mains power supply...Further, as persons unknown to the individual will be continuously tracking the individual's location (which would be likely to divulge to these persons unknown the individual's religious, political, sexual, and other personal affiliations and associations), the individual may be deterred from going to places they may otherwise go because of shame or a fear of adverse consequences from the Commonwealth or other persons with access to the information.^[116]

1.91 If the conditions were to be considered a 'criminal' penalty under international human rights law, this would mean that the relevant provisions must be shown to be consistent with the criminal process guarantees set out in articles 14 and 15 of the International Covenant on Civil and Political Rights. This includes the right not to be punished twice for the same offence (a relevant consideration to the extent that assessments of a risk of future offending with respect to any individuals within the affected cohort are based on prior criminal convictions);^[117] the right to be presumed innocent until proven guilty according to law, which requires that the case against a person be demonstrated on the criminal standard of proof (beyond all reasonable doubt);^[118] and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.^[119] These requirements would not be met (noting that a decision to impose a condition is not made by a court, and the minister is only required to be satisfied to the civil standard of proof that the visa holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence).

1.92 Additionally, the imposition of a mandatory minimum sentence of imprisonment engages and limits the right to liberty, which protects the right not to be arbitrarily detained.^[120] The United Nations (UN) Human Rights Committee has stated that 'arbitrariness' under international human rights law includes elements of inappropriateness, injustice and lack of predictability.^[121] In order for detention not to be considered arbitrary under international human rights law it must be reasonable, necessary and proportionate in the individual case. Detention may be considered arbitrary where it is disproportionate to the crime that has been committed (for example, as a result of a blanket policy). As mandatory sentencing removes judicial discretion to take into account all of the relevant circumstances of a particular case, it may lead to the imposition of disproportionate or unduly harsh sentences of imprisonment.

1.93 The mandatory minimum sentencing provisions also engage and limit article 14(5) of the International Covenant on Civil and Political Rights, which protects the right to have a sentence reviewed by a higher tribunal (right to a fair trial). This is because mandatory sentencing prevents judicial review of the severity or correctness of a minimum sentence. A previous UN Special Rapporteur on the Independence of Judges and Lawyers has observed in relation to article 14(5) and mandatory minimum sentences:

This right of appeal, which is again part of the requirement of a fair trial under international standards, is negated when the trial judge imposes the prescribed minimum sentence, since there is nothing in the sentencing process for an appellate court to review. Hence, legislation prescribing mandatory minimum sentences may be perceived as restricting the requirements of the fair trial principle and may not be supported under international standards.^[122]

1.94 The statement of compatibility states that any term of imprisonment imposed for these offences, beyond the mandatory one year, would follow conviction by a court and would be imposed by the court in consideration of the seriousness of the person’s offending and the individual circumstances of their case.^[123] It states that mandatory minimum sentences ‘appropriately reflect the seriousness of these offences and the need to make clear that non-compliance with visa conditions that are aimed at protecting community safety is viewed seriously’, and that ‘[i]n reaching its decision following a finding of guilt it is open to the court to take into account a wide range of factors, both aggravating and mitigating, to inform its view’.^[124] It is unclear how the objective of protecting community safety is not able to be achieved by having maximum five years imprisonment alone, noting that this is a significant penalty. As such, it is not clear that the mandatory minimum sentence is compatible with the right to a fair trial and criminal process rights.

Rights to liberty; freedom of movement; privacy

1.95 The imposition of visa conditions, particularly those requiring a person to always wear (and maintain) an electronic monitoring bracelet, and/or be subject to a curfew relating to a specific address for up to eight hours per day for up to one year (where non-compliance carries a mandatory minimum sentence of one year imprisonment), also engages and limits a number of other human rights, in particular:

1.96 These rights may be subject to permissible limitations where the limitation is prescribed by law, pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.97 The statement of compatibility identifies that the measure engages and limits these rights.^[127] The statement of compatibility accompanying the amending regulation states that the ability to impose visa conditions (including relating to electronic monitoring and curfew) ‘on members of the NZYQ-affected cohort’ is aimed at the legitimate objective of mitigating risks to the Australian community posed by such non-citizens, especially vulnerable members of the public.^[128] It also states that the conditions are intended to deter the individual from committing further offences; and to ensure compliance with visa conditions and to prevent ‘absconding behaviour’ (contrary to the government’s efforts to facilitate the person’s removal).^[129]

1.98 While the objectives of protecting public safety and facilitating the removal of non-citizens are generally capable of constituting a legitimate objective (and the imposition of monitoring conditions may be effective to achieve that objective), questions remain as to whether the measure addresses a pressing and substantial concern for the purposes of international human rights law.

1.99 The public safety risk posed by affected individuals and the manner in which this risk is assessed are relevant considerations in determining whether the measure addresses a pressing and substantial public concern. The amended regulations appear to now require that an individual assessment of the risk profile of each person who may be subject to these conditions is undertaken. The statement of compatibility states that the Australian Border Force Community Protection Board provides evidence-based recommendations about matters including visa conditions to the minister.^[130] Under the new test, the board would be required to consider whether the person poses a substantial risk (meaning a risk that is not remote, far-fetched or insubstantial) of seriously harming any part of the Australian community by committing one of a specified series of criminal offences. However, it is not clear how, and in accordance with what methodology, the minister would predict each individual’s future risk of offending. It is unclear what is meant by ‘substantial risk’, and why this threshold was considered appropriate noting that the standard of ‘unacceptable risk’ is utilised in comparable schemes.^[131] It is not clear what evidence the minister would be required to have regard to in order to reach this conclusion on the balance of probabilities. For example, it is not clear whether the fact an affected person has previously been convicted of a serious offence (as defined in the amending regulations) many years prior would be regarded as sufficient evidence that the person poses a substantial risk of committing a serious offence in the future. The speed with which these new conditions were introduced after the judgment of the High Court of Australia on 6 November 2024 (the amending regulation was registered the following day with effect from 10.13 am that morning) suggests that new BVRs were determined and issued in haste. While it is not clear precisely how many visa-holders’ BVR conditions were invalidated following that decision, questions arise as to the nature of evidence to which regard was had by the minister in determining that an individual poses a substantial risk of seriously harming the community by committing a serious offence, particularly noting the number of people subject to a BVR.^[132]

1.100 Further, no information is provided as to whether the measure is strictly necessary. Visa-holders may be subject to a wide range of discretionary visa conditions, including various monitoring and reporting conditions as well as requirements for the visa holder to do everything possible to facilitate their removal from Australia and not attempt to obstruct efforts to arrange and effect their removal from Australia.^[133] As with all individuals in Australia, they are subject to the oversight of policing authorities, and liable to investigation for any suspected criminal offences. Further, they may be subject to a Community Supervision Order, by which a court may impose any conditions on a person subject to a supervision order that it is satisfied, and which it is satisfied the combined effect of which, on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from serious harm by addressing the unacceptable risk of the offender committing a serious violent or sexual offence.^[134] While imposing criminal penalties for non-compliance with the visa conditions may be necessary for deterrent purposes, it remains unclear why punitive conditions including electronic monitoring are necessary to manage the potential safety risk posed by the NZYQ cohort. This is particularly so noting that Australian citizens who have been convicted of a criminal offence and served their sentence do not have equivalent conditions or restrictions imposed on them indefinitely. If the risk posed to the Australian community by citizens who have previously offended and served their sentence can be managed without imposing strict conditions subject to criminal penalties (such as electronic monitoring and curfews), it is unclear why similar measures could not adequately address the potential threat posed by members of the NZYQ cohort (noting that the number of prisoners released into the Australian community after they have served their sentence is far greater than the number of people within the NZYQ cohort who were released from immigration detention).^[135] It is not clear why existing laws are insufficient to achieve the stated objectives and thus why the measure is strictly necessary.

1.101 In assessing whether the measure is proportionate, it is necessary to consider a number of matters, including: whether the measure is sufficiently circumscribed and flexible; whether the measure is accompanied by adequate safeguards and review mechanisms; whether any less rights restrictive alternatives could achieve the same stated objectives; and the extent of any interference with human rights.

1.102 A consideration in assessing proportionality is also the extent of any interference with human rights. The greater the interference, the less likely the measure is to be considered proportionate. As the High Court of Australia considered, the imposition of constant electronic monitoring and/or curfews, as well as the mandatory minimum sentence of imprisonment for non-compliance with the conditions, constitute a significant interference with human rights.

1.103 The revised test which the minister must apply in order to impose electronic monitoring and/or curfew conditions on a visa-holder indicates that the minister is required to assess the individual risk profile of each individual with respect to specific serious criminal offences, and apply conditions on a case by case basis. This may assist with the proportionality of the measure, albeit noting that the minister is only required to be satisfied to the civil standard (on the balance of probabilities) that the visa-holder poses a substantial risk of committing a serious offence, and that the associated conditions are reasonably necessary, appropriate and adapted to address that risk. The application of this standard requires only a determination that the visa-holder is more likely than not to pose that level of risk, and that the application of the relevant visa condition is more likely than not to address that risk. Further, as noted above, it appears that this test may be applied in haste in practice, which may raise questions as to the depth of these assessments.

1.104 While a BVR holder must be invited to make representations as to why one or more conditions should not be applied to them, this is only after those conditions have already been applied, and places the onus on the individual to justify why they should not be required. In order for the minister to remove one or all of the conditions, they would be required to not be satisfied that the person poses a relevant substantial risk, or if they are satisfied of such a risk, they are not satisfied that the imposition of the relevant conditions are necessary to address that risk.^[136] This therefore has no safeguard value in relation to the issue of a first BVR, and offers limited safeguard value with respect to the issue of any further BVRs. English is unlikely to be the primary language of many, if not most, of the NZYQ cohort, which may hinder their ability to make persuasive representations or to understand their ability to make them.

1.105 Additionally, the imposition of mandatory minimum sentences of imprisonment removes the court’s discretion to consider the individual circumstances of each case and impose a sentence proportionate to the offending. This increases the risk that sentences of imprisonment will be arbitrary and not proportionate in all the circumstances. The statement of compatibility states that any term of imprisonment beyond the mandatory one year would be imposed by the court in consideration of the seriousness of the person’s offending and the individual circumstances of the case.^[137] It states that the maximum penalty provides flexibility for courts to treat different cases differently.^[138] However, retaining the court’s discretion to impose a sentence greater than the mandatory minimum sentence does not mitigate the risk that imposing a mandatory minimum sentence of one year imprisonment may be disproportionate and arbitrary in light of the particular circumstances of the case. As such, the inclusion of a maximum penalty does not offer any safeguard value.

1.106 The statement of compatibility notes that the 12-month time limit on these visa conditions provides for ‘regular review’ of whether the conditions continue to remain reasonably necessary, appropriate and adapted.^[139] However, given the extent of the interference with the human rights of affected persons, it is not clear that review on an annual basis would constitute ‘regular’ review. No information is provided as to why the measure should not require review of the continued necessity of conditions more frequently (such as, every two months), or whether an affected person can make representations to the minister regarding those conditions at any time (not merely where invited on the issue of the first BVR). As to the availability of other review, no information is provided in the explanatory materials as to whether decisions related to the imposition of these visa conditions are subject to internal or external review, and if so whether such review is administrative or a review of the merits of the decision.

Committee view

1.107 The committee notes the imposition of visa conditions, particularly those requiring a person to always wear (and maintain) an electronic monitoring bracelet, and/or be subject to a curfew relating to a specific address for up to eight hour per days for up to one year (where non-compliance carries a mandatory minimum sentence of one year imprisonment) engages and limits multiple human rights.

1.108 The committee considers further information is required to assess the compatibility of this measure with this right, and as such seeks the minister's advice in relation to:

^[10] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment Bill 2024 and Migration Amendment (Bridging Visa Conditions) Regulations 2024, Report 10 of 2024; [2024] AUPJCHR 79.

^[11] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[12] Migration Amendment Bill 2024, schedule 1, item 1, proposed subsections 76AAA(1),(2) and (4). The notice must be given as soon as reasonably practicable to the non-citizen and may be given orally or in writing, see subsection 76AAA(3).

^[24] UN Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of person) (2014) [12].

^[25] See F.K.A.G v Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.5]; M.M.M et al v Australia, UN Human Rights Committee Communication No. 2136/2012 (2013) [10.4] ['the authors are kept in detention in circumstances where they are not informed of the specific risk attributed to each of them... They are also deprived of legal safeguards allowing them to challenge their indefinite detention'].

^[28] In YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, Gageler CJ, Gordon, Gleeson and Jagot JJ noted that while the NZYQ cohort may largely consist of persons with criminal records, to be part of the NZYQ cohort a person does not need to have committed a crime: at [37] and [74]. The statement of compatibility to this bill states that many non-citizens released from immigration detention following NZYQ were granted BVRs, p. 25.

^[30] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37.

^[33] The scope of a State party's obligations under human rights treaties extends to all those within the State’s ‘jurisdiction’. For instance, article 2(1) of the ICCPR requires states parties ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.

^[34] In ‘effective control’ cases, a State can be held accountable for the violation of rights ‘of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State’: see Issa and others v Turkey, European Court of Human Rights, Application No. 31821/96 (2004) [71]; see also Őcalan v Turkey, European Court of Human Rights (Grand Chamber), Application No. 46221/99 (2005); and Ilascu and others v Moldova and Russia, European Court of Human Rights, Application No. 48787/99 (2004). In Issa, the European Court of Human Rights said ‘[a]ccountability in such situations’, ... ‘stems from the fact that [the jurisdictional scope of the European Convention on Human Rights (which is analogous to the jurisdictional scope of the international human rights treaties)] cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory’.

^[35] See, for example, Al-Jedda v United Kingdom, European Court of Human Rights (Grand Chamber), Application No. 27021/08 (2011); and Al-Skeini v United Kingdom, European Court of Human Rights, Application No. 55721/07 (2011). In both these cases, the European Court of Human Rights noted that whether the UK was exercising jurisdiction extra-territorially must be determined by reference to the particular facts of the case. In both cases, the Court held that the conduct fell within the jurisdiction of the UK.

^[37] International Covenant on Civil and Political Rights, article 12. The reference to a person's 'own country' is not restricted to countries with which the person has the formal status of citizenship. It includes a country to which a person has very strong ties, such as long-standing residence, close personal and family ties and intention to remain, as well as the absence of such ties elsewhere.

^[38] International Covenant on Civil and Political Rights, articles 17 and 23; and the International Covenant on Economic, Social and Cultural Rights, article 10.

^[39] Leghaei v Australia, UN Human Rights Committee Communication No.1937/2010 (2015).

^[40] Winata v Australia, UN Human Rights Committee Communication No.9030/2000 (2001) [7.3].

^[41] Australia also has obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees, but it is noted that these conventions do not form part of the committee’s mandate under the Human Rights (Parliamentary Scrutiny) Act 2011.

^[42] UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 of the Convention in the context of article 22 (2018). See also UN Human Rights Committee, General Comment No. 20: Article 7 (prohibition of torture, or other cruel, inhuman or degrading treatment or punishment) (1992) [9].

^[43] Obligations arise under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See also UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 of the Convention in the context of article 22 (2018).

^[44] UN Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 of the Convention in the context of article 22 (2018).

^[45] International Covenant on Civil and Political Rights, article 2 (the right to an effective remedy).

^[48] International Covenant on Civil and Political Rights, article 2(3). See Kazantzis v Cyprus, UN Human Rights Committee Communication No. 972/01 (2003) and Faure v Australia, UN Human Rights Committee Communication No. 1036/01 (2005), States parties must not only provide remedies for violations of the ICCPR but must also provide forums in which a person can pursue arguable if unsuccessful claims of violations of the ICCPR. Per C v Australia, UN Human Rights Committee Communication No. 900/99 (2002), remedies sufficient for the purposes of article 5(2)(b) of the ICCPR must have a binding obligatory effect.

^[49] See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].

^[59] Migration Amendment Bill 2024, schedule 1, part 2, item 4, subsection 5(1) seeks to insert a definition of a ‘removal pathway non-citizen’, which would include certain lawful non-citizens on a BVR.

^[60] International Covenant on Civil and Political Rights, article 13. See statement of compatibility, p. 31.

^[63] Further, as a protection finding had been made in relation to a child who holds a Subclass 050 Bridging (General) visa, or any of the categories of visa which may be prescribed by regulation, the measure may also engage and limit the rights of the child. Children have special rights under human rights law taking into account their particular vulnerabilities. Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (Rights of the child) (1989) [1]. Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration. The statement of compatibility does not identify this.

^[64] International Covenant on Economic, Social and Cultural Rights, article 12(1).

^[65] See, for example, Nickerson A, Byrow Y, O’Donnell M, et al, ‘The Mental Health Effects of Changing from Insecure to Secure Visas for Refugees’, Australian & New Zealand Journal of Psychiatry, vol. 57, no. 11, 2023, pp. 1486–1495.

^[74] See Migration Act 1958, subsection 501(3A) which provides that the minister ‘must’ cancel a visa if satisfied the person does not pass the character test because they are serving a sentence of imprisonment because of a substantial criminal record (being sentenced to imprisonment of 12 months or more) or sexually based offences involving a child.

^[82] Migration Amendment Bill 2024, schedule 1, part 2, item 4 defines a ‘removal pathway non-citizen’ to mean an unlawful non-citizen who is required to be removed as soon as is reasonably practicable; a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa; a lawful non-citizen who holds a Subclass 050 (Bridging (General)) visa and is subject to acceptable arrangements to depart Australia; and a lawful non-citizen who holds a visa prescribed by the regulations and satisfies a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia.

^[86] Further, the proposed sharing of information within Australia could include sharing and disclosure of a broad range of criminal history information which relates to children who are not citizens (including matters for which the child was never convicted of a criminal offence), for the purpose of informing, directly or indirectly, the performance of a function or the exercise of a power under the Migration Act or the Migration Regulations. These pieces of legislation are complex and collectively exceed 2,800 pages. The explanatory materials do not particularise any of the functions or powers to which this broad information disclosure may relate. There may be a risk that this information sharing may engage and limit the rights of the child, including to privacy. The statement of compatibility does not identify this.

^[89] The Community Protection Board was established in December 2023 to provide recommendations relating to visa decision making, see: Australian Border Force, ‘Community’, <https://www.abf.gov.au/about-us/what-we-do/border-protection/community>.

^[95] Judge v Canada, UN Human Rights Committee Communication No.929/1998 (2003) [10.4]; Kwok v Australia, UN Human Rights Committee Communication No.1442/05 (2009) [9.4],[9.7].

^[96] The committee has commented on the legislation which established this scheme. See, Parliamentary Joint Committee on Human Rights, Report 13 of 2023 (29 November 2023), pp. 12–42; Report 1 of 2024 (7 February 2024), pp. 43-94; and Report 4 of 2024 (15 May 2024) p. 8.

^[97] Migration Regulations, clause 070.612A. This bill was largely in response to non-citizens who were released from immigration detention following the orders of the High Court of Australia of 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.

^[98] The four conditions are 8621 (electronic monitoring), 8617 (financial reporting), 8618 (debt or bankruptcy reporting), and 8620 (curfew). Clause 070.612A was subsequently amended on 7 December 2023 by the Migration Amendment (Bridging Visa) Regulations 2023 [F2023L01629].

^[99] Department of Home Affairs, brief released via freedom of information, p. 3. The briefing indicates that this number of BVR holders in the community will continue to grow ‘as further non-citizens in Australia conduct criminal activity in Australia and fail the character test to hold a visa (or are released from prison/detention).

^[100] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40. The Court stated (at [83]) “As the power to impose each of the curfew condition and the monitoring condition on a non-citizen by the Executive Government of the Commonwealth is prima facie punitive and there is no legitimate non-punitive purpose justifying the power, the power is to be characterised as punitive and therefore infringes on the exclusively judicial power of the Commonwealth in Ch III of the Constitution”.

^[101] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 [79].

^[102] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 [85].

^[104] Migration Amendment (Bridging Visa Conditions) Regulations 2024, item 1, clause 070.111.

^[108] ‘This is intended to make clear on the face of the provision that a decision to grant a BVR without application in these circumstances is not subject to the ‘hearing rule’, being the administrative law rule that requires a decision-maker to afford a person an opportunity to be heard before making a decision affecting their interests’. See, Migration Amendment (Bridging Visa Conditions) Bill 2023, explanatory memorandum, p. 19.

^[110] Migration Amendment Bill 2024, schedule 6, item 3, proposed subsection 76E(4A). Pursuant to the amendments to the Migration Regulations, that order is: electronic monitoring; financial matters; bankruptcy matters; curfew.

^[113] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, pp. 7 and 11.

^[114] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 11.

^[115] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 [51].

^[116] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 [58]–[61].

^[118] International Covenant on Civil and Political Rights, article 14(2). See UN Human Rights Committee, General Comment 32: Article 14: Right to equality before courts and tribunals and to a fair trial (2007) [30]: 'The presumption of innocence, which is fundamental to the protection of human rights... guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt'.

^[121] UN Human Rights Committee, General Comment No. 35: Article 9 (Liberty and Security of person) (2014) [12]. It is noted that the UN Human Rights Committee has held that mandatory minimum sentences will not per se be incompatible with the right to be free from arbitrary detention, see Nasir v Australia, UN Human Rights Committee Communication No 2229/2012 (2016) [7.7].

^[122] Dato’ Param Cumaraswamy ‘Mandatory Sentencing: the individual and Social Costs’, Australian Journal of Human Rights, vol. 7, no. 2, 2001, pp. 7–20.

^[123] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 10.

^[124] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, pp. 10–11.

^[127] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 6. The statement of compatibility also indicates that the measure engages and limits the right to equality and non-discrimination.

^[128] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, pp. 8-9.

^[129] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 11.

^[130] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, pp. 9–10.

^[131] In particular, the Community Supervision Order Scheme. See, Parliamentary Joint Committee on Human Rights, Report 14 of 2023 (19 December 2023), pp. 31–59.

^[132] The Department of Home Affairs indicated that, at 1 July 2024, there were 182 NZYQ-affected BVR holders in the community, and that this number would continue to increase. See, brief released under freedom of information, p. 2.

^[133] Some of these conditions were introduced in Migration Amendment (Bridging Visa Conditions) Regulations 2021 [F2021L00444]. See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2021) pp. 50–74 and Report 9 of 2021 (4 August 2021) pp. 66–108.

^[137] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 15.

^[138] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 15.

^[139] Migration Amendment (Bridging Visa Conditions) Regulations 2024, statement of compatibility, p. 10.

Australian Parliamentary Joint Committee on Human Rights