High Court Finds Bridging Visa R Conditions Unlawful

On 6 November 2024, the High Court of Australia handed down its decision in the matter of YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs. The decision found that two of the conditions imposed on the Applicant’s Bridging Visa R were invalid. The decision will affect over 100 other holders of Bridging Visa R. This page outlines the court’s decision.

Why was Bridging Visa R created?

The Bridging Visa R was introduced in 2023, after the High Court handed down its decision in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs. That decision found that it was unlawful for the Australian government to hold people in immigration detention for the purpose of removing them from the country in circumstances where their removal was not going to become practicable in the reasonably foreseeable future.

Around 300 detainees were released from detention as a consequence of the decision. The federal government subsequently passed legislation allowing the recently-released persons to be placed on a new class of Bridging Visa, the Bridging Visa R, which carried strict conditions designed to allay concerns about the risk posed to the community by these persons.

Bridging Visa R conditions

The conditions of Bridging Visa R included that the holder notify the Department of:

• the details of any person they were proposing to live with
• any work they proposed to undertake that involved contact with minors or vulnerable persons
• any interstate or overseas travel
• any membership of any organisation
• any contact with any individual or group involved in illegal activities
• any receipt or transfer of an amount of more than $10,000

A visa holder who had been convicted of offences involving minors or vulnerable persons was prohibited from working with minors or vulnerable persons. A visa holder who had been convicted of a violent or sexual offence was prohibited from having contact with victims or their families.

Unless the Minister was satisfied that a person was not a threat to the community, the following conditions were also automatically imposed:

• that the person must remain at home between 10pm and 6 am and at other specified times
• that the person must wear an electronic monitoring device at all times.

A breach of any of the above conditions was a criminal offence punishable by imprisonment.

The High Court challenge

A High Court challenge was initiated by a stateless man from Eritrea, who was released from immigration detention on 23 November 2023 on the basis that there was no real prospect of removing him from Australia in the foreseeable future. He was granted a Bridging Visa R with conditions that he abide by a curfew and be subject to electronic monitoring. He was subsequently arrested and charged with breaching these conditions.

A majority of the court found that the electronic monitoring condition and the curfew condition were fundamentally punitive in nature as they infringed on his liberty and bodily integrity. The curfew restricted the Applicant’s movement for eight hours every night and the electronic bracelet was ‘neither small nor discreet’ and was likely to lead to him being perceived as a dangerous criminal, when this was not the case. The device represented both a physical and an emotional burden as it required charging twice a day and necessitated the wearing of certain types of clothing.

The court found that there was no justification for either of the conditions and that they were not reasonably necessary for the protection of the Australian community. It found that the two conditions infringed on Chapter III of the Constitution and were invalid. More broadly, the court made it clear that the government may not punish an entire class of people because of their visa status, describing the conditions as “a form of extra-judicial collective punishment”.

What happens now?

Following the court’s decision, over 100 other Bridging Visa R holder will not longer be subject to curfews or electronic monitoring. However, the other conditions that attach to a Bridging Visa R will remain in force and breaches of those other conditions will remain criminal offences.

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