Migration Amendment (Bridging Visa Conditions) Regulations 2023 - new matters [2024] AUSStaCSDLM 20 (17 May 2024)

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1.29 The committee requests further information from relevant ministers about its significant technical scrutiny concerns in relation to the instruments listed below.

FRL No.	F2023L01629
Purpose	The instrument amends the Migration Regulations 1994 to make technical amendments to provisions enabling the minister to grant a Bridging R (Class WR) visa without application, make amendments consequential to amendments to the Migration Act 1958, set out the operation and application of certain visa conditions, and provide for periodic review of the imposition of certain visa conditions.
Authorising legislation	Migration Act 1958
Portfolio	Home Affairs
Disallowance	15 sitting days after tabling (tabled in the Senate on 6 February 2024). Committee gave notice of motion to disallow on 15 May 2024.

1.30 The Migration Amendment (Bridging Visa Conditions) Regulations 2023 (the instrument) make a number of amendments to the Migration Regulations 1994 (Migration Regulations). These include amendments to set out the application and operation of certain visa conditions which must be applied to a Bridging R (Class WR) visa (BVR) in certain circumstances and to provide for periodic review of the imposition of certain conditions specified in the Migration Regulations, including in relation to curfews and monitoring devices.

1.31 The instrument also makes technical amendments to provisions enabling the minister to grant a BVR without application, as well as amendments consequential to those that would be made by the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Matters) Act 2023. These amendments follow from the insertion and amendment of a number of visa conditions in the Migration Regulations, made by the Migration Amendment (Bridging Visa Conditions) Act 2023 following the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S28/2023).^[13]

1.32 The committee raised scrutiny concerns with the instrument on 7 February 2024, in Delegated Legislation Monitor 1 of 2024,^[14] and the minister provided a response on 3 April 2024.^[15] As the committee retains scrutiny concerns about the below matters, it has resolved to raise those concerns with the minister.

1.33 In Delegated Legislation Monitor 1 of 2024,^[17] the committee raised concerns about the inclusion of significant matters in delegated legislation. The instrument amends a number of existing, and specifies two new, conditions for BVR visa holders, including amendments to conditions 8612 and 8615 so that BVR holders in the NZYQ-affected cohort are only required to notify the department of the details of persons ordinarily residing with them and membership of organisations where the BVR holder has been convicted of an offence involving a minor or other vulnerable person.^[18] It also makes amendments so that conditions relating to financial transactions, bankruptcy, curfews and electronic monitoring imposed on a BVR granted to a non-citizen will only be imposed for 12 months.^[19]

1.34 The instrument’s explanatory statement provides that these matters are appropriate for inclusion in delegated legislation because it has been the consistent practice of the Government of the day to include detailed matters concerning visa criteria and conditions in the regulations, because the Migration Act 1958 (the Migration Act) expressly provides for such matters to be prescribed in regulations, and their inclusion in delegated legislation enables the government to effectively manage operation of Australia’s visa program and respond quickly to emerging needs.

1.35 While noting this explanation, the committee reiterated its concern that, as a matter of principle, significant matters should ordinarily be included in primary legislation, due to the additional level of parliamentary scrutiny attached to the legislative process for primary legislation. The committee also noted its concern that delegated legislation was further amending the BVR framework a short time after the Migration Regulations had been recently amended by the Migration Amendment (Bridging Visa Conditions) Act 2023. For these reasons, the committee requested the minister’s advice as to why it is considered necessary and appropriate in this instance to further amend the BVR framework by delegated, rather than primary, legislation.

1.36 In his response of 3 April 2024, the minister advised that it is the usual practice of the Government of the day to provide for detailed matters relating to visa criteria and conditions in the Migration Regulations, that the Migration Act expressly provides for this and that, as the individual requirements and conditions of each visa subclass are prescribed in Schedule 2 to the Migration Regulations, it is necessary to amend Schedule 2 in order to update these requirements or conditions imposed on a visa.

1.37 The committee notes the minister’s advice that, to update the visa requirements or conditions which are prescribed in Schedule 2 to the Migration Regulations, it is necessary to amend that Schedule to the regulations and that this is permitted by the Migration Act.

1.38 The committee also notes the advice that it has been the consistent practice of governments to provide for such matters in the Migration Regulations. However, the committee wishes to reiterate its specific concerns about the further amendment of Schedule 2 by delegated legislation a short time after Schedule 2 was amended by primary legislation through the Migration Amendment (Bridging Visa Conditions) Act 2023. In particular, the committee notes with concern that this further amendment by delegated legislation involves a lesser degree of parliamentary oversight than the initial amendments related to the NZYQ-affected cohort.

1.39 The committee reiterates that, as a matter of principle, significant matters should ordinarily be included in primary legislation, due to the additional level of parliamentary oversight attached.

1.40 Noting the minister’s advice, the committee concludes its examination of the instrument in relation to this issue. However, the committee has resolved to draw its concerns about the additional amendments made by delegated legislation to the attention of the Senate under standing order 23(4).

Conferral of discretionary powers;^[21] availability of independent merits review^[22]

1.41 The instrument inserts a new provision into the Migration Regulations, to provide that if specified visa conditions, relating to electronic monitoring, financial transactions, bankruptcy and curfews are imposed on a BVR holder, the visa holder will be subject to the conditions for 12 months.^[23] The instrument also makes amendments to require the minister to impose such conditions when a BVR is granted,^[24] if new subclause 070.612A(3) applies,^[25] unless the minister is satisfied that it is ‘not reasonably necessary’ to impose a condition for the protection of any part of the community.

1.42 The explanatory statement explains that the purpose of the amendment is to provide the minister with authority to exercise a discretion not to impose a mandatory visa condition where satisfied this is ‘not reasonably necessary’ for protection of the community and that under new subclause 070.612A(2), the minister must consider the reasonable necessity of each condition for the protection of the community and the extent to which each of the other conditions contribute to this purpose, in sequential order.^[26] However, as it was unclear from the instrument, the committee requested the minister’s advice as to whether further detail could be provided regarding the factors that the minister may take into account in determining whether each condition is ‘not reasonably necessary’ for protection of the community, and whether any safeguards or limitations apply to exercise of the minister’s powers or functions under new subclause 070.612A(1) including any review mechanisms, such as independent merits review.

1.43 In his response, the minister advised that although there is no exhaustive list of matters relevant to the consideration of whether a condition is ‘not reasonably necessary’ for protection of the community, these conditions have a protective purpose having regard to the risk of harm the non-citizen poses. The minister provided a non-exhaustive list of factors that would be relevant to that consideration, broadly regarding the nature and frequency of past offending or other serious conduct; rehabilitation and matters going to the likelihood of engaging in further conduct of that kind; other conditions addressing the risk; residential and family circumstances and other community support; and the extent to which any other factors address the risk (for example, if the non-citizen is subject to parole or bail conditions or in criminal detention).

1.44 The minister further provided a non-exhaustive list of the kind of information to which the minister may have regard in considering these matters, such as criminal history, reports from law enforcement or correctional authorities, information about parole conditions or restrictive measures to which the non-citizen will be subject while in the community and representations from the non-citizen or on their behalf (for example, character references).

1.45 In response to the committee’s queries about safeguards, such as the availability of independent merits review, the minister provided advice about the granting of a visa under the Migration Act. He advised that section 76E of the Migration Act applies where there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future and the BVR is subject to a condition prescribed in the Migration Regulations. Under section 76E, while the rules of natural justice do not apply, if the visa holder makes representations to the minister about why the visa should not be subject to one or more of these conditions and the minister is satisfied that the conditions are ‘not reasonably necessary’ for the protection of the Australian community, the minister must grant the individual a further BVR which is not subject to those conditions. The minister further advised that a decision to grant a visa subject to prescribed conditions is not reviewable by the Administrative Appeals Tribunal. However, following representations to the Minister by a non-citizen, a decision by the Minister ‘not to grant a BVR that is not subject to one or more of the prescribed conditions’ is reviewable under paragraph 338(4)(c) of the Migration Act.

1.46 In addition, the minister noted the safeguard in new regulation 2.25AE that, if these conditions are imposed on a BVR, they are only imposed for a period of 12 months, which operates to ensure there is some form of review at least every 12 months. Finally, the minister noted the availability of Commonwealth Ombudsman review and judicial review.

1.47 The committee welcomes the minister's detailed advice about the kinds of factors that may be taken into account in determining whether a condition is ‘not reasonably necessary’ for protection of the community. However, the committee considers that this information is appropriate for inclusion in the instrument's explanatory statement, in line with its expectations, noting the ability for such conditions to significantly impact on the rights and liberties of individuals. Further, the committee's general expectation is that explanatory materials contain sufficient information to gain a clear understanding of the instrument.

1.48 The committee notes the minister’s advice that, while independent merits review is not available for a decision to grant a visa under the Migration Act, review is available in relation to a decision ‘not to grant a BVR that is not subject to one or more of the prescribed conditions’. The committee welcomes the inclusion of independent review in relation to the decision not to grant a BVR that is not subject to one or more of the conditions. While the committee welcomes the availability of Ombudsman and judicial review, it does not consider that these factors alone provide an adequate justification for excluding merits review.

1.49 Furthermore, the committee notes that it was unclear, on the face of the explanatory statement, which decisions of the minister relating to the grant of a Bridging (Class WR) visa to a non-citizen were subject to independent merits review. In this regard, the committee notes, as a rule of law principle, the importance of ensuring that the explanatory statement to an instrument provides sufficient information to enable a clear understanding of the instrument, particularly where there is potential to significantly impact individuals' rights and obligations.

1.50 In light of the above, the committee requests the minister’s further advice as to:

1.51 The instrument’s explanatory statement indicates that the Office of Impact Analysis (OIA) and other Commonwealth agencies including the Attorney-General’s Department, were consulted in relation to the instrument, but does not specify which agencies were consulted or whether any persons likely to be affected by the instrument, or experts, were consulted. Accordingly, the committee requested the minister’s advice as to which other agencies were consulted and whether any persons likely to be affected, any experts or any stakeholders representing the NZYQ-cohort were consulted and, if so, who or, if not, why not.

1.52 In his response, the minister advised that the measures in the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 and the instrument were informed by consideration of the High Court’s written reasons in the NZYQ case, and consultation between the Department of Home Affairs (the department) and the Attorney-General’s Department, the Australian Government Solicitor and the Office of Parliamentary Counsel in the course of developing and drafting the instrument. The minister also advised that following passage and commencement of that Act and the instrument, the department held roundtable discussions on three occasions with the Australian Human Rights Commission, the Commonwealth Ombudsman’s Office and the Australian Red Cross, to discuss matters relating to implementation of the legislative response to NZYQ, management of the NZYQ-affected cohort and to hear these organisations’ views on these and related matters.

1.53 The committee notes the minister’s advice that the department worked with a number of relevant Commonwealth agencies in developing and drafting the instrument and that, following its commencement, held roundtable discussions with the Australian Human Rights Commission, the Commonwealth Ombudsman’s Office and the Australian Red Cross. However, while the committee welcomes liaison with those organisations, it emphasises the obligation in paragraph 17(2)(b) of the Legislation Act 2003, as reflected in Senate standing order 23(3)(d), that the rule maker must be satisfied that appropriate consultation was undertaken and may have regard to the extent to which those likely to be affected by the proposed instrument had an opportunity to comment on it, prior to the instrument being made. The committee also notes that, in this instance, it appears that there may be a range of other organisations representing the interests of those who may be affected by the measures in the instrument and it is therefore unclear as to why a broader range of stakeholders were not consulted with or involved in the roundtable discussions. The committee’s concerns are heightened in this instance, as the scheme and the amendments made by the instrument have the potential to significantly impact the rights of the NZYQ-affected cohort.

1.54 In light of the above, the committee requests the minister’s advice as to:

1.55 In addition, the committee has resolved to place a 'protective' notice of motion to disallow the instrument to provide it with additional time to consider the matters outlined in relation to this instrument.

^[12] This entry can be cited as: Senate Standing Committee for the Scrutiny of Delegated Legislation, Migration Amendment (Bridging Visa Conditions) Regulations 2023; [2024] AUSStaCSDLM 20.

^[13] The Senate Standing Committee for the Scrutiny of Bills has commented on the Migration (Bridging Visa Conditions) Bill 2023, which became the Migration (Bridging Visa Conditions) Act 2023. See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2023 (29 November 2023) pp. 7-27.

^[15] This correspondence was tabled with this monitor and will be accessible via the Delegated Legislation Monitors page on the committee’s website.

^[18] Migration Amendment (Bridging Visa Conditions) Regulations 2023, item 18 in Part 1 of Schedule 1.

^[19] Migration Amendment (Bridging Visa Conditions) Regulations 2023, item 12 in Part 1 of Schedule 1.

^[20] This correspondence was tabled with this monitor and will be accessible via the Delegated Legislation Monitors page on the committee’s website.

^[23] Condition 8621 requires a BVR holder in the NZYQ-affected cohort to wear a monitoring device at all times; condition 8617 requires them to notify Immigration in relation to financial transactions; condition 8618 requires them to notify Immigration in relation to bankruptcy; and condition 8620 requires them to abide by a curfew.

^[25] That is, if the visa was granted under regulation 2.25AAA and at the time of grant, there was no real prospect of the removal of the holder from Australia becoming practicable in the reasonably foreseeable future or the visa was granted under regulation 2.25AB.

^[26] Explanatory statement p. 23. See also new subclause 070.612A(2) which requires the minister to decided whether or not to impose each condition in the following sequential order: 8621 (electronic monitoring), 8617 (financial transactions), 8618 (bankruptcy) and 8620 (curfews).

^[27] This correspondence was tabled with this monitor and will be accessible via the Delegated Legislation Monitors page on the committee’s website.

^[29] This correspondence was tabled with this monitor and will be accessible via the Delegated Legislation Monitors page on the committee’s website.

Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor

Migration Amendment (Bridging Visa Conditions) Regulations 2023 - new matters [2024] AUSStaCSDLM 20 (17 May 2024)