YBFZ and Changes to Monitoring Conditions for BVR Holders
The recent High Court decision in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 (‘YBFZ’) continues the political saga following the decision in NZYQ to end indefinite detention where there are no prospects of removal from Australia. The High Court held that various mandatory conditions imposed on Bridging (Removal Pending) visa (BVR) holders were punitive in nature, violating the separation of powers under Chapter III of the Constitution.
Who are the ‘NZYQ Cohort’
After the decision in NZYQ, approximately 33 individuals were released from immigration detention on the basis that they could not reasonably be removed from the country. Some of these individuals had been convicted of serious criminal offences in Australia; however, not all of them had been convicted.
What are the mandatory conditions?
In the interests of public safety, four conditions were imposed on all BVR holders unless the Minister of Home Affairs was satisfied that they were not necessary for the protection of the community. An advisory body called The Community Protection Board would assist the minister in determining whether these conditions should be imposed. The four conditions were:
8617 – must notify if receiving or transferring $10,000 or more
8618 – must notify if bankrupt or incurring a debt of $10,000 or more
8620 – the curfew condition
8621 – the monitoring condition
The main conditions in dispute in YBFZ were 8620 and 8621, which were imposed upon the plaintiff’s BVR. However, the decision equally applied to the imposition of any of the four conditions. A breach of any of the visa conditions would result in a mandatory 12-month term of imprisonment.
Why were the conditions punitive?
A High Court majority found that the conditions were prima facie punitive – meaning that they were taken to be punitive unless a legitimate non-punitive reason existed.
The curfew condition severely restricted the mobility of individuals as they were required to remain at a specified address for 8 hours each day, usually between 10 pm and 6 am. This burden meant that a person could not reasonably travel without providing advance notice of a new address.
The monitoring condition required individuals to wear ankle monitors at all times, which affected their bodily integrity and placed a significant burden on their lives. Such a device would also be clearly visible in public and would likely bring shame to the wearer. For these reasons, the court found that these conditions were punitive.
Was there a legitimate reason?
Although the conditions were punitive, if there was a different legitimate purpose for their existence, then they could be justified. The protection of any part of the Australian community was the stated purpose. However, the court took issue with the generality and broadness of this purpose. As such, the majority held that there was no legitimate non-punitive purpose. Additionally, as the conditions were mandatory unless determined otherwise if the Minister didn’t have enough information to decide that they were not necessary, they would still be imposed even if they were not needed to protect the community.
What happens next?
Following the decision in YBFZ, the law was amended to require the Minister to impose these conditions only after being satisfied that they were necessary and adapted to the purpose of protecting the community from serious harm.
Recently, on the 16th of February this year, the Australian Government reached a deal to relocate three members of the NZYQ cohort to Nauru with 30-year resettlement visas. It is anticipated that this decision will be challenged in court.
How Can Agape Henry Crux Help You
If you are in a similar situation like this case, speak to an Accredited Specialist in Immigration Law for tailored advice to your case before it is too late. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-83105230 or email us to book a time at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.
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