New proposed criminal offense provisions for BVR holders

The BVR (Bridging Visa Conditions) allows eligible non-citizens, for whom removal is currently not reasonably practicable, to lawfully remain in Australia until removal becomes feasible. The Department of Home Affairs (the Department) may issue a BVR when a non-citizen in the NZYQ-affected cohort lacks entitlement to stay in Australia and is unlikely to qualify for any other visa.

The BVR comes with requirements for the individual to actively engage and cooperate with the Department, facilitating their eventual removal from Australia.

This Bill seeks to fortify the existing requirements for BVR holders, aligning them with the perceived current environment and what the government believes to be the expectations of the Australian community regarding the management of non-citizens holding BVRs, especially considering the implications of the orders in NZYQ.

The decision by the High Court that indefinite immigration detention is unconstitutional has resulted in the release of people who had already served sentences prior to being placed in immigration detention. Many people have spent years beyond their sentences being held in facilities which, unlike the criminal justice system, has no focus on rehabilitation, wellbeing, or education.

The Government and opposition have worked together to jointly conceive the Migration Amendment (Bridging Visa Conditions) Bill 2023 to strengthen the current requirements for BVR holders and includes the introduction of new criminal offense provisions addressing specific actions determined to amount to a “serious violation of visa conditions”. The introduction of new section to the Act establishes a criminal offense for BVR holders within the NZYQ-affected cohort who violate specific mandatory conditions—conditions that are imperative and ‘must be imposed’ for the visa. Mandatory conditions are proposed to include ‘monitoring condition.’

This newly created offense is not one of strict liability.

If you have any concerns about visa conditions and compliance, you should seek advice from us to ensure you understand your rights and obligations.