DVRL v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 1540

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVRL v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1540

File number(s): SYG 3372 of 2024

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 19 September 2025

Catchwords:
MIGRATION – application for remedies in relation to decisions delegates of the Minister made on 14 November 2024 and 6 May 2025 purportedly pursuant to reg 2.25AB of the Migration Regulations 1994 (Cth) (Regulations) and cl 070.612A(1) of Schedule 2 to the Regulations to impose curfew and monitoring device conditions on the grant of a Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) – whether the delegates considered each of the prerequisites the delegates were required to consider before the delegates could be satisfied that the curfew and monitoring device conditions could be imposed – whether reg 2.25AB and reg 2.25AE are repugnant to the Migration Act 1958 (Cth) (Act)– whether those regulations are beyond the regulation making power conferred by s 504(1) of the Act – the delegates did not consider and therefore did not reach the requisite state of satisfaction in relation to an essential prerequisite to the granting of the curfew and monitoring device conditions – regulations 2.25AB and 2.25AE are not repugnant to the Act nor their making beyond s 504(1) of the Act – declaratory relief granted.

Legislation:
Constitution CHIII
Administrative Review Tribunal Act 2024 (Cth)
Criminal Code Act 1995 (Cth) Part 10.6
Migration Amendment Act 2024 (Cth)
Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), Item 5 of Schedule 1, Item 2, Item 3, Item 7, Item 8 of Part 1 of Schedule 2,
Migration Act 1958 (Cth) ss 31, 37, 41, 65, 68, 72, 73, 76E, 82, 189(1), 338(4)(c), 476(1), 501(2), 504(1)
Migration Amendment (Bridging Visa Conditions) Regulations 2023 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)
Migration Regulations 1994 (Cth), reg 2.01(2), reg 2.03(1)(a), reg 2.20, reg 2.25AA, reg 2.25AB, reg 2.25AD(1), reg 2.25AE, cl 070.612A, cl 070.111 of Sch 2, Division 070.6 of Part 070 of Sch 2, Sch 8

Trade Practices Act 1974 (Cth) s 82(1) (repealed)

Cases cited:
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729
Garlett v Western Australia [2022] HCA 30

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

McEldowney v Forder [1971] AC 632

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mineralogy Pty Ltd v Western Australia [2021] HCA 30
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M47-2012 v Director-General of Security [2012] HCA 46
Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50
Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No.2) [2008] FCA 1521
Sultan & Ors v Minister for Immigration and Multicultural Affairs [2025] HCASJ 17
Thomas v Mowbray [2007] HCA 33

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA

Division: General

Number of paragraphs: 143

Date of last submission/s: 29 August 2025

Date of hearing: 28 August 2025

Place: Sydney

Counsel for the Applicant: Mr D Hughes

Solicitor for the Applicant: Legal Aid

Counsel for the Respondent: Mr P Knowles SC with Mr T Liu

Solicitor for the Respondent: Australian Government Solicitor
ORDERS

SYG 3372 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DVRL

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

19 SEPTEMBER 2025

THE COURT DECLARES THAT:
1.The purported imposition of conditions 8620 and 8621 on the Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) a delegate of the respondent granted to the applicant on 14 November 2024 was and is of no legal effect, and the BVR was not at any time subject to conditions 8620 and 8621.
2.The purported imposition of condition 8621 on the BVR a delegate of the respondent granted to the applicant on 6 May 2025 was and is of no legal effect, and the BVR that was granted to the applicant on 6 May 2025 was not at any time, and is not subject to condition 8621.

THE COURT ORDERS THAT:
3.The parties have liberty to apply within 14 days after the date these orders are pronounced for any additional order or orders the parties submit ought to be made to give further or better effect to the reasons for judgment on the basis of which declarations 1 and 2 have been made.
4.The respondent pay the applicant’s costs as agreed or as assessed by such method of assessment as the Court considers appropriate after hearing further from the parties.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

On 19 December 2024 the applicant filed an application pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act) for remedies in relation to a decision (First Decision) a delegate of the respondent (Minister) made to impose visa condition 8620 (curfew condition) and visa condition 8621 (monitoring device condition) on a Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) the delegate granted to the applicant on 14 November 2024 pursuant to reg 2.25AB(2) of the Migration Regulations 1994 (Cth) (Regulations). The delegate purported to impose the visa conditions pursuant to cl 070.612A(1) of Schedule 2 to the Regulations. I heard the application on 1 May 2025, at the conclusion of which I listed the matter for judgment at 2.15 pm on 14 May 2025.
On 7 May 2025 the parties informed my Associate that in the afternoon of 6 May 2025 a delegate of the Minister granted the applicant a new BVR in relation to which the delegate, purportedly pursuant to cl 070.612A(1) of Schedule 2, imposed the monitoring device condition, but not the curfew condition (Second Decision). On 9 May 2025 I vacated the listing for judgment, and adjourned the matter for a directions hearing on 19 May 2025 to give the parties time to determine what further steps, if any, should occur in the proceeding. By 30 June 2025 the applicant provided to the Minister a draft further amended application.
On 30 June 2025 I directed the Minister to inform the applicant by 7 July 2025 whether he would consent to the applicant relying on the draft further amended application; and I made orders on the assumption the Minister would so consent, listing the matter for further hearing on 28 and 29 August 2025. The Minister consented, and on 24 July 2025 the applicant filed a further amended application. In the further amended application the applicant seeks remedies in relation to both the First Decision and the Second Decision. Additionally, the applicant challenges the validity of reg 2.25AB and reg 2.25AE of the Regulations on the grounds they are repugnant to the Act, and otherwise beyond the regulation making power conferred by s 504(1) of the Act or, alternatively, are contrary to Ch III of the Constitution. I heard the applicant’s additional grounds of application on 28 August 2025.
In these reasons for judgment I consider the applicant’s claims. Before I identify and consider the grounds on which the applicant relies, it will be necessary to set out the factual and statutory background that led to the making of the First and Second Decisions.
BACKGROUND
The applicant
The applicant is a citizen of Indonesia, having been born in January 1961. The applicant presented himself to what is now known as the Department of Home Affairs (Department) in 1985, claiming he had recently entered Australia by canoe from Papua New Guinea.[1] The applicant subsequently applied for, and on 14 August 1991 was granted, a protection visa.[2]
[1] CB64.
[2] CB64.
Conviction for manslaughter and consequent cancellation of protection visa
On 17 September 2001 the applicant was convicted of manslaughter in the Supreme Court of Queensland, and was sentenced to seven years imprisonment with a non-parole period of two and a half years.[3] The applicant’s victim was his de-facto wife, who was 15 weeks pregnant at the time the applicant killed her. The applicant has also been convicted of some 20 other criminal offences which he committed before and after the date of his conviction for manslaughter. These offences include assault.
[3] CB87.
On 5 March 2003 the Minister cancelled the applicant’s protection visa pursuant to s 501(2) of the Act; and, on his release from criminal custody, he was taken into immigration detention pursuant to s 189(1) of the Act. While in immigration detention, the applicant again applied for, but this time the Minister refused, the grant of a protection visa; and the applicant unsuccessfully exhausted his rights to merits and judicial review in relation to the Minister’s refusal. The applicant remained in immigration detention until 19 September 2024 when, in the circumstances I will describe shortly, he was released into the community.
17 November 2023 – legislative response to NZYQ
On 8 November 2023 the High Court pronounced orders in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, by which the High Court determined that each of s 189(1) and s 196(1) of the Act was beyond the legislative power of the Commonwealth to the extent they purported to authorise the detention of a non-citizen where there is no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future (NZYQ principle).[4] Parliament responded to the High Court’s orders in NZYQ on 17 November 2023 by enacting the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) (Amending Act), which amended both the Act and the Regulations.[5]
[4] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. The High Court published its reasons on 28 November 2023.
[5] The Amending Act came into effect on 18 November 2023.
Specification of the NZYQ class as a distinct class of “eligible non-citizens”
The legislative response to NZYQ effected by the Amending Act comprised a number of elements. The first was to render the persons who had been held in immigration detention but who, because of the NZYQ principle, could no longer be lawfully held in immigration detention (NZYQ class), a distinct class of “eligible non-citizens” for the purpose of s 72 of the Act.[6] This was done by adding the following new reg 2.20(18):[7]
This subregulation applies to a non‑citizen if there is no real prospect of the removal of the non‑citizen from Australia becoming practicable in the reasonably foreseeable future.
[6] Subsection 72(1)(b) of the Act defines “eligible non-citizen” to mean, among other things, a non-citizen who “is in a prescribed class of persons”.
[7] Item 2 of Part 1 of Schedule 2 to the Amending Act.
This meant that, by the operation of subreg 2.20(1) of the Regulations, members of the NZYQ class were prescribed for the purposes of the definition of “eligible non-citizens” in s 72 of the Act; and being so prescribed, they became a class of persons to whom the Minister could grant a bridging visa pursuant to s 73 of the Act. That section provides:[8]
If the Minister is satisfied that an eligible non‑citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non‑citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.
[8] Bridging visas is a class of visas for which s 37 of the Act provides.
Specification of conditions for the granting of BVRs to members of NZYQ class
The significance of the NZYQ class being prescribed as a distinct class of eligible non-citizens is that criteria specifically directed to the grant of bridging visas to members of the NZYQ class could be prescribed pursuant to s 31(3) of the Act;[9] and regulations could be made pursuant to s 41(1) of the Act to provide for the imposition of conditions to the grant of bridging visas to any member of the NZYQ class.[10] And this is the second element of the legislative response to NZYQ; the Amending Act specified conditions the Minister could or was required to impose on the grant of a BVR to a member of the NZYQ class. This was effected in two steps The first was to add the following reg 2.25AB to the Regulations:[11]
(1)      This regulation applies to a non‑citizen who:
(a)       is an eligible non‑citizen under subregulation 2.20(18); and
(b)       holds a Bridging R (Class WR) visa.
(2)Despite anything in Schedule 1 and Divisions 070.2 to 070.4 of Part 070 of Schedule 2, the Minister may grant the non‑citizen another Bridging R (Class WR) visa if the Minister is satisfied that, if the visa is granted, the non-citizen will abide by the conditions to which the visa will be subject under Division 070.6 of that Part.
[9] Subsection 31(3) of the Act relevantly provides that the “regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section . . . 37 . . . )”. Section 37 of the Act provides there “are classes of temporary visas, to be known as bridging visa, to be granted under Subdivision AF” of Divion 3 of Part 2 of the Act.
[10] Subsection 41(1) provides that the “regulations may provide that visas, or visas of a specified class, are subject to specified conditions”.
[11] Item 3 of Part 1 of Schedule 2 to the Amending Act. Immediately before the addition of reg 2.25AB there was in force, and the continues to be in force reg 2.25AA, which provides for the Minister to grant a BVR to eligible non-citizens eligible whose removal from Australia is not reasonably practicable at the time of issue of the visa.
“Bridging R (Class WR)” visas are one of the “classes of visa provided for by the Act that is identified by” item 12 of the table in subregulation 2.01(2). Item 12 of the table also identifies a subclass of the “Bridging R (Class WR)”, namely, “Subclass 070 (Bridging (Removal Pending))”; that is, a BVR.
The second step was to amend Part 070 of Schedule 2, which prescribes the criteria for the grant of a BVR. And here it is relevant to identify two amendments. The first was the substitution of cl 070.612(1) of Schedule 2 with the following:[12]
If the visa was granted under regulation 2.25AA or 2.25AB or is taken to have been granted under paragraph 76A(3)(a) of the Act, conditions 8550, 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8612, 8613, 8614, 8615, 8616, 8617, 8618, 8619, 8622 and 8623 must be imposed, in addition to any condition mentioned in clause 070.611.
[12] Item 7 of Part 1 of Schedule 2 to the Amending Act.
The Amending Act added the conditions referred to in the new cl 070.612(1), these being as follows:
(a)Condition 8612, which requires the holder to notify the Department of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder’s residential address, and of any changes.
(b)Condition 8613, which requires the holder to obtain the Minister’s approval before commencing work, or regular organized activity, involving more than incidental contact with a minor or any other vulnerable person.
(c)Condition 8614, which requires the holder to inform the Department of any travel interstate or overseas at least 7 working days before undertaking the travel.
(d)Condition 8615, which requires the holder to notify the Department of his or her association with or membership of any organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters).
(e)Condition 8616, which requires the holder to notify the Department of any contact with any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities; or any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities.
(f)Condition 8617, which requires the holder to disclose receiving or transferring $10,000 within any 30 day period.
(g)Condition 8618, which requires the holder to report the incurring of debts totalling debts of $10,000 or more, or becoming bankrupt.
(h)Condition 8624, which applies to a holder who has been convicted of an offence involving violence or sexual assault; it prohibits the holder from contacting, or attempting to contact, the victim of the offence or a member of the victim’s family.
The Amending Act also added the following cl 070.612A:[13]
(1)If subclause (3) applies to the visa, condition 8620 must be imposed unless the Minister is satisfied that the holder does not pose a risk to the community.
(2)If subclause (3) applies to the visa, condition 8621 must be imposed unless the Minister is satisfied that the holder does not pose a risk to the community.
(2A)A condition imposed under subclause (1) or (2) is in addition to any other condition imposed by another provision of this Division.
(3)This subclause applies to a visa if:
(a)the visa was granted under regulation 2.25AA 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
(b)the visa was granted under regulation 2.25AB.
[13] Item 8 of Part 1 of Schedule 2 to the Amending Act.
The Amending Act added the conditions referred to in cl 070.612A, namely, conditions 8620 (this being the curfew condition) and 8621 (this being the monitoring device condition). Condition 8620 provides:
(1)The holder must, between 10 pm on one day and 6 am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2)If the Minister specifies other times for the purposes of subclause (1), the times must not be more than 8 hours apart.
(3)In this clause:
“notified address” for a holder for a particular day or days means any of the following:
(a) the address notified by the holder under condition 8513 or 8550;
(b)an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;
(c)if, for the purposes of this paragraph, the holder notifies Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be)—that address.

Condition 8621 provides:
(1)      The holder must wear a monitoring device at all times.
(2)The holder must allow an authorised officer to fit, install, repair or remove the following:
(a)the holder’s monitoring device;
(b)any related monitoring equipment for the holder’s monitoring device.
(3)The holder must take any steps specified in writing by the Minister, and any other reasonable steps, to ensure that the following remain in good working order:
(a)       the holder’s monitoring device;
(b)       any related monitoring equipment for the holder’s monitoring device.
(4)If the holder becomes aware that either of the following is not in good working order:
(a)the holder’s monitoring device;
(b)any related monitoring equipment for the holder’s monitoring device;
the holder must notify an authorised officer of that as soon as practicable.
(5)      In this clause:
“monitoring device” means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
“related monitoring equipment”, for a monitoring device, means any electronic equipment necessary for operating the monitoring device.
Right to make representations
The third element of the legislative response to NZYQ effected by the Amending Act was to provide that the rules of natural justice do not apply to the making of a decision to grant a BVR subject to either or both of the curfew or monitoring device conditions, and instead to confer a right on a person to whom a BVR has been granted subject to such conditions to make representations to the Minister. This was provided for by the addition of s 76E of the Act, which was as follows:
Rules of natural justice do not apply to decision to grant certain bridging visas
(1)This section applies in relation to a decision to grant a non‑citizen a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) if:
(a)       the first visa is subject to one or more prescribed conditions; and
(b)at the time the first visa is granted, there is no real prospect of the removal of the non‑citizen from Australia becoming practicable in the reasonably foreseeable future.
(2)For the avoidance of doubt, the rules of natural justice do not apply to the making of the decision.
(3)As soon as practicable after making the decision, the Minister must:
(a)give the non‑citizen, in the way that the Minister considers appropriate in the circumstances:
(i)        a written notice that sets out the decision; and
(ii)       any other prescribed information; and
(b)invite the person to make representations to the Minister, within the period and in the manner specified by the Minister, as to why the first visa should not be subject to one or more of the conditions prescribed for the purposes of paragraph (1)(a).
(4)The Minister must grant the non‑citizen another Subclass 070 (Bridging (Removal Pending)) visa (the second visa), under a prescribed provision of the regulations, that is not subject to any one or more of the conditions prescribed for the purposes of paragraph (1)(a) if:
(a)the non‑citizen makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the non‑citizen does not pose a risk to the community.
(5)The Minister must give the non‑citizen written notice of the decision and the reasons for the decision.
The Amending Act further amended the Act by adding s 338(4)(c), which provides that the following is a Part 5 reviewable decision: [14]
a decision to not grant a non‑citizen a Subclass 070 (Bridging (Removal Pending)) visa under a provision of the regulations prescribed for the purposes of subsection 76E(4) that is not subject to any one or more of the conditions prescribed for the purposes of paragraph 76E(1)(a).
[14] Item 5 of Schedule 1 to the Amending Act.
This provision applies where a person to whom a BVR visa has been granted that is subject to the prescribed conditions (these being the conditions identified in the current 070.612A(1), which include the curfew and monitoring device conditions) makes representations to the Minister pursuant to an invitation given under s 76E(3), but the Minister decides not to grant a BVR visa that is not subject to any such conditions. In those circumstances, s 338(4)(c) confers on that person the right to apply to the Administrative Review Tribunal (ART) for a review of the Minister’s decision.
The Amending Act also added reg 2.25AD(1), which prescribes the curfew and monitoring device conditions as the “prescribed conditions” for the purposes of s 76E(1)(a); and reg 2.25AD(2), which prescribes reg 2.25AB as the prescribed provision for the purposes of s 76E(4).
Creation of offences
The fourth element of the legislative response to NZYQ was to create a number of offences for a failure to comply with the prescribed conditions.
8 December 2023 – further amendments to the Regulations
The Regulations were amended on 8 December 2023 by the Migration Amendment (Bridging Visa Conditions) Regulations 2023 (Cth) (December 2023 Amending Regulations).[15] According to the Explanatory Statement, the December 2023 Amending Regulations made, among other things, technical amendments to provisions enabling the Minister to grant a BVR without application, and to provide for the periodic review of the imposition of certain visa conditions, including the curfew and monitoring device conditions. The amendments included the substitution of the following subreg 2.25AB(2):
Despite anything in Schedule 1 and Divisions 070.2 to 070.4 of Part 070 of Schedule 2, the Minister may grant the non‑citizen a Bridging R (Class WR) visa if the Minister is satisfied that, at the time of decision, the non‑citizen continues to hold a Bridging R (Class WR) visa.
[15] Migration Amendment (Bridging Visa Conditions) Regulations 2023 (Cth).
The Explanatory Statement says that the purpose of amending subreg 2.25AB(2) was to ensure that the Minister could grant a BVR visa to a non-citizen, without application, even where the Minister is not satisfied that the non-citizen will abide by the conditions to which the visa will be subject under Division 070.6 of Part 070 of Schedule 2.
The December 2023 Amending Regulations introduced the following new reg 2.25AE:
(1)If one or more of the following conditions are imposed on a Subclass 070 (Bridging (Removal Pending)) visa granted to a non‑citizen, the visa is subject to those conditions for a period of 12 months from the day the visa is granted:
(a)       condition 8617;
(b)       condition 8618;
(c)       condition 8620;
(d)       condition 8621.
(2)Subregulation (1) does not prevent another Subclass 070 (Bridging (Removal Pending)) visa being granted to the non‑citizen, before or after the 12‑month period referred to in subregulation (1) ends, with any one or more of those conditions imposed on the visa.
(3)To avoid doubt, if another Subclass 070 (Bridging (Removal Pending)) visa is granted to the non‑citizen with any one or more of those conditions imposed on the visa, then the visa is subject to those conditions for a period of 12 months from the day the visa is granted.
The December 2023 Amending Regulations amended the Regulations by repealing and substituting new subclauses 070.612A(1), (2), and (2A) which with (the unamended) subclause (3) was as follows:
(1)      If subclause (3) applies to the visa, each of the following conditions must be imposed by the Minister unless the Minister is satisfied that it is not reasonably necessary to impose that condition for the protection of any part of the Australian community (including because of any other conditions imposed by or under another provision of this Division):
(a)       8621;
(b)       8617;
(c)       8618;
(d)       8620.
. . . .
(2)      The Minister must decide whether or not to impose each of the conditions listed in subclause (1) in the order in which those conditions are listed in that subclause.
(2A)     Conditions imposed by or under this clause are in addition to any other condition imposed by or under another provision of this Division.
(3)      This subclause applies to a visa if:
(a)       the visa was granted under regulation 2.25AA 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
(b)       the visa was granted under regulation 2.25AB.
19 September 2024 – applicant is released into the community on the basis of a BVR subject to curfew and monitoring device conditions
On 19 September 2024 the Department assessed the applicant “as being NZYQ affected”.[16] That led to a delegate of the Minister, on 19 September 2024, granting the applicant a BVR pursuant to reg 2.25AB(2) of the Regulations, subject to a number of conditions, including the curfew and monitoring device conditions.[17] The applicant was released into the community on 19 September 2024,[18] but subject to assistance provided by the “Settlement Services International” (SSI).[19]
[16] CB64.
[17] CB14.
[18] CB700.
[19] CB698.
Notes contained in an SSI “Case Plan” record interactions between an SSI case officer and the applicant from 19 September 2024 to 11 October 2024. For example, the Case Plan records the applicant, on 11 October 2024, making statements that included the following (errors in original): [20]
[20] CB702-703.
Client informed CM that he was still settling and adjust to live in the community. He stated that a lot of things changed since he went to into immigration detention.
Client talked about the time he spent immigration detention. He stated that when he was in detention he did art work and had about 50 Artwork but someone stole all his Art. He stated that he knows the person who stole his art and wanted to sue him. He stated that each of his Artwork cost over $100.000.00.
Client informed CM that he has been recording himself singing love songs and he wanted to put the songs in a CD. He stated that he was amazed about what the technology can do. He stated that everything seems easy with technology and you can easily connect a lot of things into one thing.
Client reported that he has not started receiving Centrelink payment but received SRSS payment last week.
CM or . . . to assist client go or call Centrelink and follow up on his Special Benefit Allowance application.
Today, CM and TL went to Villawood detention and collected client's remaining belonging.
Client stated that he has a lot of things that he will need to throw away. He stated that he still needs to go through his belonging and pick things that he needed most.
Client also mentioned that he had a Karaoke disco machine when he was Villawood detention and he sold the disco machine to someone inside Villawood but that person did not give him his money. He stated that he wanted the Karaoke Machine back unless that person pays him.
Client bought a belt puncher and asked CM to add more hole on his new belt. He stated that he lost weight and he has to keep pulling his pants up when he was walking.
Client mentioned that he has 22 children and16 grandchildren. He stated that he has nos [sic] spoken to any of his children since he came out detention.
There is also in evidence “Case Engagement Notes” maintained by the Department. These notes record the following:

25 September 2024

The meeting concluded without any significant issues or concerns raised by [the applicant]. He appears to be in good spirits, with a clear desire to reconnect with his family and a positive attitude toward transitioning to more stable accommodation. The regular calls that have been scheduled will provide ongoing support as he navigates this period of adjustment.[21]

27 September 2024

In conclusion, [the applicant] appears to be in good spirits and is taking proactive steps to manage both his health and personal responsibilities. The engagement did not reveal any immediate concerns, and he seems to be managing his situation well with the ongoing support of his caseworker . . . .[22]

30 September 2024

During the conversation, [the applicant] expressed his gratitude toward the Case Manager. He specifically mentioned how the CM’s approach and respectful treatment had made a significant impact on him, altering his perspective on the department and its services. This positive shift in his outlook is a promising indicator of the trust and rapport being established between [the applicant] and the team.

The meeting concluded on a positive note, with [the applicant] looking forward to his upcoming doctor’s appointment and continuing to feel supported by the team.[23]

[21] Affidavit of G McAleese 10.04.2025, [10], annexure D, page 50.
[22] Affidavit of G McAleese 10.04.2025, [10], annexure D, page 51.
[23] Affidavit of G McAleese 10.04.2025, [10], annexure D, page 51.

6 November 2024 – the High Court decides YBFZ

On 6 November 2024, in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court declared that paragraphs (a) and (d) of cl 070.612A(1) of Schedule 2 were invalid.[24] The declaration was based on the affirmative answers a majority of the High Court gave to the following two questions:[25]
(1)Is cl 070.612A(1)(a)[26] of Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”) invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(d)?
(2)Is cl 070.612A(1)(d) of Sch 2 to the Migration Regulations invalid because it infringes Ch III of the Constitution, either alone or in its operation with cl 070.612A(1)(a)?
[24] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40.
[25] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [1]. The majority consisted of Gageler CJ, and Gordon, Gleeson, and Jagot JJ who delivered joint reasons, and Edelman J, who gave separate reasons.
[26] As in force from 8 December 2023.
It would be convenient to set out the main elements of the reasoning of the plurality in YBFZ:
(a)Chapter III of the Constitution restricts “the legislative and executive power of the Commonwealth by insisting that the judicial power of the Commonwealth may be exercised only by the judiciary”. This restriction is “carefully guarded by the courts”.[27]
(b)The specific constitutional principle “restated and reinforced” in NZYQ is that “a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose”, such detention being “penal or punitive unless justified as otherwise”.[28]
(c)NZYQ, however, “represents a specific example of a broader stream of common law and constitutional principle based on the pre-eminent value the law of this country gives to the protection of human life (from arbitrary capital punishment), limb, now called bodily integrity (from arbitrary corporal punishment), and liberty (from arbitrary detention)” (Broad NZYQ Principle).[29] The Broad NZYQ Principle holds that, subject to two qualifications, a law enacted by the Commonwealth Parliament which authorises the interference with individual liberty or bodily integrity, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will also contravene Ch III of the Constitution.
(d)The first of the two qualifications to the Broad NZYQ Principle is that the law which authorises the interference with individual liberty or bodily integrity must properly be characterised as “prima facie” penal; and that is because there “are many interferences with bodily integrity and liberty authorised by the legislature, both significant and insignificant, which are non-punitive and therefore do not infringe on exclusively judicial power”.[30] Whether any given power that authorises interference with bodily integrity or liberty is prima facie penal is to be determined by addressing a “single question of characterisation: whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore as exclusively judicial”.[31] The “task of characterisation of the power begins by determining the meaning and scope of the law; the law’s practical and legal operation; and the end or object the law is designed to achieve (ascertained objectively from its whole text and context at a level of generality or specificity calibrated to the importance of the “constitutional value . . . at stake”)”.[32]
(e)The second qualification to the Broad NZYQ Principle is that, even though a law that authorises the interference with bodily integrity or liberty may be prima facie penal or punitive, it may nevertheless not have been enacted in contravention Ch III of the Constitution if the law can be justified. Here:[33]
Justification involves asking if the power having a prima facie punitive character (by default or otherwise) is reasonably capable of being seen to be necessary (in the relevant sense of “reasonably appropriate and adapted” rather than essential or indispensable) for a legitimate and non-punitive purpose in which event the power's constitutional character is non-punitive. By breaking the question of characterisation into these subsidiary steps, the method and structure of the required analysis accommodates the complexity that is inherent in the question of characterisation.
(f)Conditions 8620 and 8621 were both “prima facie punitive”.[34]
[27] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [6].
[28] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [8].
[29] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [12].
[30] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [15].
[31] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [16].
[32] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [16].
[33] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [18] (footnotes omitted).
[34] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [52], and [63]. “The words “prima facie” … have work to do. They convey that such a characterisation is not sufficient to establish that the power to impose [the relevant conditions] contravenes CHIII of the Constitution”: YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [64].
That, then, led the plurality to consider whether paragraphs (a) and (d) of cl 070.612A(1) of Schedule 2 were justified; that is, whether cl 070.612A(1)(a) and (d) were “reasonably capable of being seen to be necessary (in the relevant sense of “reasonably appropriate and adapted” rather than essential or indispensable) for a legitimate and non-punitive purpose”. The plurality held there was “no legitimate non-punitive purpose justifying the power” conferred by cl 070.612A(1)(a) and (d);[35] and the plurality relied on three matters. The first was the purpose as stated in cl 070.612A(1)(a) and (d) for which the Minister was required to impose conditions 8620 and 8621, namely, the “protection of any part of the Australian community”. The plurality held this stated purpose “must be taken to be designedly unparticularised and indeterminate”;[36] and that gave rise to the “fundamental difficulty”:[37]
that protection of every part of the Australian community from any harm at all, like the protection of the Australian community as a whole, is “a concept of such elasticity that it is not necessarily inconsistent with the imposition ... of a criminal punishment following an adjudication of criminal guilt – a function which lies in the heartland of judicial power”. Clause 070.612A(1) therefore casts its net over all members of the class in circumstances where escape from this net depends on the Minister forming an opinion which the Minister is legally entitled not to form in a broad and flexible, as well as uncertain and unpredictable, range of circumstances not necessarily connected to the existence of any real risk of physical or other harm to any member of the Australian community.
[35] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [83].
[36] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [76].
[37] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [81].

The second matter on which the plurality relied is the failure of cl 070.612A(1)(a) and (d) to identify the harm the risk of whose occurrence the clause was designed to reduce or avoid:[38]
…. What harm? Clause 070.612A(1) does not require the harm to be of a sufficient degree of seriousness to involve the commission of a serious criminal offence. In fact, the harm does not need to be of a sufficient degree of seriousness to involve the commission of any criminal offence. The purported non-punitive purpose does not refer to any harm associated with criminal conduct. Even if it did, where the Court has accepted that protection of the community from the harm of criminal offending is a legitimate non-punitive purpose for a Commonwealth law which authorises imprisonment, the harm to which those laws were directed was a more specific harm, such as the harm caused to the community by terrorism. If protection from any harm of any nature, degree, or extent were a legitimate non-punitive purpose, the very point of the legitimacy requirement would be undermined.
[38] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [82].
The third matter on which the plurality relied for concluding cl 070.612A(1)(a) and (d) were not justified is that the clause “involves a positive state of mind about a negative stipulation (“the Minister is satisfied that it is not reasonably necessary to impose that condition”)”. The difficulty the plurality perceived with this was that if the Minister could not be so satisfied, the conditions had to be imposed, “meaning that the provision resolves all doubt and uncertainty in favour of the imposition of the conditions”. That, in turn, meant that:[39]
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.
[39] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [85].
There are two other matters to note about the plurality’s reasons. The first is the plurality acknowledged the High Court has accepted that “protection of the community from the harm of criminal offending is a legitimate non-punitive purpose for a Commonwealth law which authorises imprisonment”.[40] This appears to be a reference to “preventive restraints on liberty by judicial order” the High Court considered in Thomas v Mowbray[41] to which the plurality referred.[42] The plurality may also have intended to refer to laws passed by State legislatures in relation to high risk offenders.[43] The second observation relates to the following passage from the plurality’s reasons:[44]
While it is not essential to so observe, even if protection of the Australian community from the risk of harm arising from future offending were accepted to be a legitimate and non-punitive purpose, cl 070.612A(1)(a) and (d) are not reasonably capable of being seen as necessary for that purpose.
[40] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [82].
[41] Thomas v Mowbray [2007] HCA 33, at [18].
[42] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [53].
[43] See, for example, Garlett v Western Australia [2022] HCA 30.
[44] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [84].
7 November 2024 – Regulations amended again
On 7 November 2024 the Regulations were amended by the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) (November 2024 amendments), which included the substitution of cl 070.612A(1) with the following (current cl 070.612A(1)):
For each of conditions 8621, 8617, 8618 and 8620, the Minister must impose the condition if:
(a)       subclause (3) applies to the visa; and
(b)despite the other conditions imposed on the visa by or under this subclause or another provision of this Division, the Minister is satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; and
(c)the Minister is satisfied on the balance of probabilities that the imposition of the condition (in addition to the other conditions imposed by or under this subclause or another provision of this Division) is:
(i)        reasonably necessary; and
(ii)       reasonably appropriate and adapted;
for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
The expression “serious offence” is defined in cl 070.111(a) to mean an offence against a law of the Commonwealth, a State, or Territory that is punishable by imprisonment for life or for a period of at least five years; and the conduct that constitutes the crime is conduct of the sort that is identified in cl 070.111(b). That conduct includes the loss of a person’s life, or serious risk of loss of a person’s life, serious personal injury or serious risk of personal injury, sexual assault, and the production, publication, supply, or sale of, or other dealing in, child abuse material within the meaning of Part 10.6 of the Criminal Code.
It would be convenient at this point to refer to the following passages from the Explanatory Statement which explain the purpose of the monitoring and curfew conditions, being passages on which the Minister relies:
Condition 8620 (curfew) limits the ability of visa holders to depart the place at which they are required to be during the curfew hours (which would ordinarily be the person’s residential address, but can also be the address of a person with whom the visa holder has a close personal relationship or another address nominated by the BVR holder on the relevant day, and could, for example, be a place of employment or the house of a friend or relative). The maximum duration of the curfew is 8 hours (10pm to 6am or as otherwise specified by the Minister, but not exceeding 8 hours) for the day or days specified by the Minister and no other additional controls on the behaviour of the BVR holder during the hours of curfew will be imposed by this condition. This ensures that the hours of the curfew are not unreasonably long and allow for normal daily activity, as well as ensuring the visa holder can still access community services, employment, and other relevant supports, and is consistent with the legitimate objective of community safety and the rights and interests of the public, especially vulnerable members of the public.
…
The purposes of electronic monitoring as a condition is to deter the individual from committing further offences whilst holding the BVR, knowing they are being monitored, and thereby keep the community safe. Electronic monitoring will also assist with the prevention of absconding behaviour, which is contrary to the obligation of the visa holder to engage in the Government’s efforts to facilitate their removal.
4 December 2024 – further amendments to Act
On 4 December 2024 s 76E was amended by the Migration Amendment Act 2024 (Cth),[45] which currently provides as follows:
[45] Migration Amendment Act 2024 (Cth), Schedule 6.
(1)This section applies in relation to a decision to grant a non‑citizen a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) if the first visa is subject to one or more prescribed conditions.
(2)To avoid doubt, the rules of natural justice do not apply to the making of the decision.
(3)As soon as practicable after making the decision, the Minister must:
(a)give the non‑citizen, in the way that the Minister considers appropriate in the circumstances:
(i)        a written notice that sets out the decision; and
(ii)       any other prescribed information; and
(b)invite the person to make representations to the Minister, within the period and in the manner specified by the Minister, as to why the first visa should not be subject to one or more of the conditions prescribed for the purposes of subsection (1).
(4)The Minister must grant the non‑citizen another Subclass 070 (Bridging (Removal Pending)) visa (the second visa), under a prescribed provision of the regulations, that is not subject to any one or more of the conditions prescribed for the purposes of subsection (1) if:
(a)the non‑citizen makes representations in accordance with the invitation; and
(b)either:
(i)the Minister is not satisfied, on the balance of probabilities, that the non‑citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; or
(ii)if the Minister is satisfied, on the balance of probabilities, that the non‑citizen poses the substantial risk mentioned in subparagraph (i)—the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition, or those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
Note: If the Minister grants the second visa, the first visa will cease to be in effect, and the visa period for the first visa will end, on the grant of the second visa (see subsections 68(4) and (5)).
(4A)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 subsection (1) in the same order as required by the regulations.
(5)The Minister must give the non‑citizen written notice of the decision and the reasons for the decision.
(6)To avoid doubt, nothing in this section prevents the grant, from time to time, of a Subclass 070 (Bridging (Removal Pending)) visa to the non‑citizen.
(7)      In this section:
serious offence has the same meaning as in Part 070 of Schedule 2 to the Migration Regulations 1994.
In addition, s 68(5) of the Act was amended, which is relevant to provisions that determine the time for which BVRs have effect. The substance of these provisions is as follows:
(a)A visa has effect as soon as it is granted (s 68(1)), although the visa may be stated to come into effect on a date after the date it is granted or on the happening of an event stated in the visa (s 68(2)).
(b)Once granted, the visa can only be in effect “during the visa period for the visa” (s 68(3)). The expression “visa period”, in relation to a visa, is defined in s 5(1) to mean the period:
(a) beginning when the visa is granted; and
(b) ending:
(i)in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii)in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
(c)A bridging visa ceases to have effect under s 82(3) if another visa (other than a special purpose visa or a maritime crew visa) for the non‑citizen comes into effect. Under s 68(4), however, the bridging visa that has ceased to have effect under s 82(3) of the Act will be reactivated in the circumstances stated in s 68(4).
(d)Subsection 68(5) provides that s 68(4) does not apply where a BVR (first BVR) ceases to have effect under s 82(3) of the Act because another BVR comes into effect (second BVR). Where that occurs, s 68(6) provides that “[f]or the purposes of subparagraph (b)(ii) of the definition of visa period in subsection 5(1), the first visa is to be taken to have ceased to be in effect otherwise than under subsection 82(3)”.
The effect of these provisions is that stated by the note to s 76E(4): “If the Minister grants the second visa, the first visa will cease to be in effect, and the visa period for the first visa will end, on the grant of the second visa (see subsections 68(4) and (5))”.
Construction of the current cl 070.612A(1)
It is apparent that the current cl 070.612A(1) was drafted with the intention of removing those aspects of the previous cl 070.612A(1) the plurality in YBFZ considered rendered it inconsistent with Ch III of the Constitution, and introducing elements on the basis of which the power the current cl 070.612A(1) confers on the Minister to impose the Prescribed Conditions may be justified as conforming with Ch III of the Constitution.
(a)First, the current cl 070.612A(1) defines more narrowly the purpose for which the Minister may impose any one or more of the conditions mentioned in the clause (Prescribed Conditions): the Minister may impose one or more of the conditions for the purpose of “protecting any part of the Australian community from serious harm”. The serious harm is the substantial risk of the person to whom the Minister intends to grant the BVR (BVR grantee) seriously harming the Australian community by committing a serious offence. The serious harm may be more directly stated as the substantial risk of the BVR grantee committing a serious offence; because it is through the substantial risk of the BVR grantee committing a serious offence that there is a substantial risk of the BVR grantee seriously harming any part of the Australian community.
(b)Second, the current cl 070.612A(1) provides that one or more of the Prescribed Conditions may be imposed only if the Minister is satisfied that the imposition of one or more of them would protect any part of the Australian community from the substantial risk of the BVR grantee reoffending, and that the imposition of such conditions would protect any part of the Australian community “by addressing that substantial risk”. The word “by” “clearly expresses the notion of causation without defining or elucidating it”.[46] The current cl 070.612A(1), therefore, requires the Minister to be satisfied that, if imposed, there could be a causal connection between the imposition of one or more of the Prescribed Conditions and the reduction of the substantial risk of reoffending the Minister is satisfied the BVR grantee poses.
(c)Third, the current cl 070.612A(1) requires the Minister to be satisfied that the imposition of one or more of the Prescribed Conditions is “reasonably necessary”, and “reasonably appropriate and adapted” to address the substantial risk the Minister is satisfied the BVR grantee poses. The words “reasonably necessary” require that the Minister be satisfied there are reasonable grounds for supposing that the imposition of one or more of the Prescribed Conditions will reduce the substantial risk of reoffending the Minister is satisfied the BVR grantee poses. The words “reasonably appropriate and adapted” require that the only matters the Minister may consider when determining whether the imposition of one or more of the Prescribed Conditions could reasonably be supposed to reduce the substantial risk of reoffending are matters that specifically relate to the particular circumstances of the BVR grantee. This precludes the Minister from relying on what the Minister may consider to be the general capacity of the Prescribed Conditions to reduce the risk of reoffending as the sole ground for imposing such conditions on a BVR grantee.
[46] Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, at page 525.The quoted passage discussed the word “by” as it appeared in s 82(1) of the Trade Practices Act 1974 (Cth).
The current cl 070.612A(1) of Schedule 2, therefore, confers on the Minister the power to impose one or more of the Prescribed Conditions on the granting of a BVR, but only if the Minister takes the following steps:
(a)First, the Minister must consider whether, despite the other conditions that are required to be imposed on the granting of the BVR (such as those provided for in cl 070.612A(1)), he or she is satisfied, on the balance of probabilities, that the BVR grantee poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence. That requires the Minister to bring to mind the offence or offences, or kind of offence or offences, the Minister considers there is a substantial risk the BVR grantee will commit; and the matters which the Minister considers give rise to the substantial risk of the BVR recipient committing an offence or offences, notwithstanding the imposition of the other conditions that are required to be imposed on the granting of the BVR.
(b)Second, if the Minister is satisfied the BVR grantee poses a substantial risk of committing a serious offence, the Minister must consider whether it is “reasonably necessary” and “reasonably appropriate and adapted” to impose one or more of the Prescribed Conditions for the purpose of protecting any part of the Australian community from serious harm “by addressing that substantial risk”. That requires the Minister to consider whether, in the particular circumstances of the BVR grantee, it could reasonably be supposed that, by imposing one or more of the Prescribed Conditions, the substantial risk the Minister is satisfied the BVR grantee poses to commit a serious offence or offenses would be reduced.
7 November 2024 – BVR granted to the applicant not subject to impugned conditions
On 7 November 2024 a delegate of the Minister notified the applicant that he had been granted a BVR that came into effect at 20:30 AEDT on 6 November 2024, noting that any other BVR the applicant held ceased to have any effect. The BVR was not subject to conditions 8620 and 8621.
12 November 2024 – Department Minute referring applicant for “a BVR consideration”
By 12 November 2024 an officer of the Department completed a submission (Department Minute) referring the applicant’s circumstances to a delegate of the Minister “for a BVR consideration”.[47] The officer did so because the applicant had been “assessed to be NZYQ affected”, he was the holder of a BVR “with nil prescribed conditions”, and the applicant was affected by the High Court’s orders in YBFZ. The Department Minute:
(a)provided a summary of the applicant’s migration history;
(b)stated that on 19 September 2024 the applicant had been assessed “as being NZYQ affected”; and that, as at the date of the document, it remained the case there was no real prospect of the applicant being removed from Australia in the reasonably foreseeable future;
(c)set out the applicant’s criminal history, and noted that, although the applicant has convictions for offences involving violence, he does not have convictions for offences involving sexual assault, or offences involving a minor or vulnerable person; and he is not subject to any court orders;
(d)referred to the applicant’s “current SRSS Case Plan from October 2024”; that the applicant “is engaging with his SSI case worker”; and that the applicant had been referred to a “Case Assessment Clinical Team (CACT) Forensic Psychologist for mental health treatment”;
(e)referred to a health discharge summary relating to the applicant;
(f)referred to the International Health and Medical Services report dated 19 April 2024 that the applicant has diabetes mellitus type 2, and other ailments, including chronic kidney disease, osteoarthritis of knees, narcissistic personality disorder, history of drug and alcohol use, and a history of abusive/aggressive behaviour; and
(g)noted that a “Level of Service/Risk, Need, Responsibility form has been completed for this client”.
[47] CB63.

The Department Minute attached a large number of documents, some of which it would be relevant to identify at this point. First, there are the remarks De Jersey CJ made when sentencing the applicant for manslaughter on 17 September 2001. His Honour said:[48]
Your victim was 28 years old. She was then your de facto wife.
. . . .
It is a terribly sad feature that she is dead but also that at the time she died, she was 15 weeks’ pregnant. You killed her during an argument by hitting her about her head with a child’s bicycle. It was a spontaneous act and you were drunk at the time.
. . . .
You are now 39 years old. You have a prior criminal history, and it includes a conviction for grievous bodily harm, but a long time ago, in 1989. . .
But in the end it is a dreadful thing to take someone else’s life through an act of violence and it is no excuse that you do it when you are drunk.
. . . .
I have considered whether I should declare the conviction to be a conviction in respect of a serious violent offence but, in the circumstances of this case, notwithstanding the violence of the offence, I decline to take that course.
[48] CB299.
Second, there is the Community Corrections Officer report (CCO Report) dated 5 July 2002 which was prepared by the Department of Corrective Services Assessment Unit for the Department of Immigration and Multicultural Affairs .[49] In a section headed “Has the applicant presented as having (i) regret, (ii) guilt, (iii) victim empathy?”, the report states (errors in original):[50]
[The applicant] had a very limited insight into his offending behaviour. When asked who was to blame for the death of his victim he blamed the Police (for allegedly instructing his return to her), the parents of the deceased (for coercing him to return to her) and reluctantly himself, as he said “it was an accident”. He blamed mostly external factors which bought them together for her death, minimising the agency he played in her death. He considered the victim morally wrong for her infidelity and considered her as a stupid and retarded individual who had to be told everything at least twice. He said that nothing like this will ever happen again because I’ve had it with Australian women, black or white, they all want to wear trousers and think they’re men, I’ve studied it from in here, they’re all stupid smart”. When asked what “stupid smart” meant he said “they act stupid, when you catch them fooling around, but they’re smart and know what they're doing”.
[The applicant] appeared to have little meaningful or in-depth understanding of his actions, thinking or behaviour surrounding the offence.
[49] CB415.
[50] CB421.
The CCO Report concluded that the risk of the applicant reoffending is high. That assessment was based on the applicant’s history of violent offending at a young age; limited expression of victim empathy; the applicant’s externalising blame for offending to other agencies; and reports from ‘block officers’ of the applicant being intimidating and using stand-over tactics to gain “his way”.[51]
[51] CB422.
Third, there is the report prepared by Dr W, a consultant psychiatrist, dated 27 October 2008.[52] The report is addressed to the Assistant Director of the Department’s Health and Community Services. The report notes Dr W interviewed the applicant for one hour on 25 September 2008 and, after setting out much of the applicant’s criminal history, concluded as follows:[53]
[The applicant] has a history of alcohol and cannabis abuse. He has a personality disorder, defined as a persistent pattern of abnormal emotions and behaviour. He has a history of violent offences. His denial of behaviour problems in Townsville Correctional Centre and in the Villawood Immigration Detention Centre is inconsistent with other sources of information. His account of the manslaughter is inconsistent with the sentencing remarks.
[The applicant] is at high risk of further violent offences. He continues to use threats to get what he wants. He has little insight into his problems with his temper. He will not benefit from psychiatric or psychological treatment. He has had a very limited education.
….
[52] CB392.
[53] CB396.
Fourth, there is a report dated 22 March 2010 prepared by Dr C, a clinical and forensic psychologist.[54] The report appears to be addressed to lawyers for the applicant for the purpose of assessing the risk of the applicant’s reoffending. Dr C concluded:[55]
It appears that aggression is a behaviour that [the applicant] uses to express himself due to his culture and the influence of machismo. He does not appear to have acculturated to Westernised lifestyle, and it seems his risk of recidivism wil1 be more easily managed if he is capable of sustained substance abstinence and treatment around impulse control. It is noted that with his advancing age, impulse control generally improves. [The applicant’s] recidivism risk is assessed as moderate based on his age; however, his risk could be reasonably managed if he were to be placed in a supportive environment that is pro-social and accepting of his cultural background and influences. He reports that he has such living opportunities in Brisbane, and he expresses a desire to remain substance free. Drug and alcohol counselling would also be helpful to ensure that he maintains such behaviour when he is potentially returned to the community. Additionally, if there is any prospect of [the applicant] reuniting with his children, this will probably only occur if he were to remain in Australia. He reports that he will be killed if he were to return to West Papua, and I note that immigration have already accepted this threat as genuine.
[54] CB401.
[55] CB413.
Fifth, there is a report from Dr W dated 18 May 2010, which responds to Dr C’s report.[56] Dr W concludes:
[The applicant] has a personality disorder and a history of substance abuse. His history of violence cannot be explained by cultural differences. He is at high risk of further violent offences. His criminal history, substance abuse history, and behaviour in custody and immigration detention support this assessment of his risk. When interviewed for my report from October 2008, he showed little insight into the problems with his temper.
. . . .
[The applicant’s] risk of recidivism in the Australian community cannot be managed by psychiatric and/or psychological treatment. Substance use will increase his risk. He is unlikely to benefit from specialist drug and alcohol services because, when seen for my earlier report, he did not want treatment.
….
[56] CB398.
Sixth, there is an email the Assistant Manager sent to the Department on 6 December 2013 in which he stated that the applicant had been involved in over 71 behaviour related incidents while in Villawood Immigration Detention Centre, which included “demonstrations of abusive/aggressive behaviour, threatened, attempted and actual self-harm, voluntary starvation, assault of two Detention Service Provider (DSP) officers, threatened use of a makeshift weapon (a broken broom handle) against a DSP officer and the assault of another client”.[57] It was further noted that the most recent incident occurred on 29 September 2013 when the applicant “was abusive and aggressive towards IHMS staff”.
[57] CB389.
Seventh, there is a report dated 16 April 2014 prepared by Mr C, a clinical psychologist, on instructions from the applicant’s lawyers.[58] Mr C concluded there appeared to be “at least a moderate-high risk of further aggressive or violent behaviour, which risk level would . . . be increased if [the applicant] were to be using/abusing alcohol in particular”. Mr C noted that the applicant maintained that he did not intend to use alcohol or drugs; but Mr C said it was “difficult to feel confidence in this, particularly as it is far from clear where he would go if released into the community, and what supports he would have, or more importantly what supports he would be willing to utilise”.[59]
[58] CB439.
[59] CB449-450.
Eighth, there are two sets of “Client Incident Reports”, apparently prepared by those responsible for managing the immigration detention facility in which the applicant was held. The first Client Incident Report records incidents from 24 April 2010 to 2 November 2016,[60] and the other from 2 November 2016 to 7 November 2020.[61] On 23 December 2016 the applicant’s lawyers made submissions in relation to the incidents recorded in the Client Incident Reports. These included the following:[62]
The Client Incident Report lists 209 incidents, of which 165 are described as “Minor”, 38 are described as “Major” and 6 are described as “Critical”. In respect of the period February 2015 to 2 November 2016, there are 58 “Minor” incidents and 18 “Major” incidents. None of the incidents are “Critical”.
. . . .
Of the eighteen incidents reported as “major”, five incidents reported concern food/fluid refusal or threatened self-harm. These are: 1-6DHW6ZR: 27/01/2016 - Food/fluid refusal; 1-73RPQRR: 14/04/2016 – Threatened self-harm; 1-746MK94: 16/04/2016 – Threatened self-harm; 1- 8CQ7532: 28/08/2016 – Threatened self-harm; 1-8IXNOD7; 16/09/2016 – Threatened self-harm.
These incidents are not relevant to [the applicant’s] risk to the Australian community and should be disregarded.
Another three incidents reported as “major” involve events occurred on the same day. The first is 1-7JRVR9V: 02/06/2016 – Client in possession. The second two concern the same subject matter, however have been recorded as two separate records of incident: 1-7JR33T1: 02/06/2016 – Damage – Serious; 1-7JR33RQ: 02/06/2016 – Use of fire equipment/false alarm. These three records should be viewed in the light that they are overlapping in subject matter and directly relate to [the applicant’s] concern for his personal space and property rather than a risk to the Australian community.
Another two incidents reported as “major” also occurred on the same day as three “minor” incidents which involved [the applicant’s] concern for his property. These are: 1-89UGKXI: 20/08/2016 – Use of Force; 1-89UGKVS: 20/08/2016 – Damage – Serious. These incidents reflect [the applicant’s] concern for his property rather than [the applicant’s] risk to the Australian community.
[60] CB464-479.
[61] CB480-587.
[62] CB588-589.
The LS/RNR Form
Finally, there is the “Level of Service/Risk, Need, Responsivity form” (LS/RNR Form) the Department Minute states had “been completed for the client”. That is a reference to a form which, at the left side of the first page, identifies itself as:[63]
LS/RNR^TM QuikScore^TM Form
Level of Services/Risk, Need, Responsivity
D.A. Andrews, Ph. D., James L. Bonta, Ph.D., & J. Stephen Wormith, Ph.D.
[63] CB778.
No evidence was led about the nature of the LS/RNR Form, and the purposes for which it is used. It is apparent from the LS/RNR Form, however, that the form has been developed through the work of Messrs D.A. Andrews, James L. Bonta, and J. Stephen Wormith.[64] Although it is not open to me to treat this as evidence, it would be useful to set out what two of these authors said about “Level of Service (LS) Instruments”:[65]
The Level of Service (LS) refers to a collection of offender risk/need assessment instruments that have evolved from its initial version more than 25 years ago. All versions share a number of essential common features. . . .
The LS instruments are fundamentally a quantitative tool, consisting of both static risk and dynamic (criminogenic) need items, all of which are scored in a dichotomous, 0-1 format. Items were selected for a combination of theoretical and empirical reasons . . . that apply across demographic characteristics, such as age, gender, race, and ethnicity.
. . . .
Applications of the LS are many and varied. The LS instruments were originally designed for sentenced offenders in prison and in the community on probation or parole, although increasingly they are being used in pre-sentence circumstances to inform the court about the suitability of community supervision and the accused’s treatment needs. They may be used to determine the level of institutional security, judicial sentencing conditions of probation, the amount of supervision in the community, whether to release an offender on parole and if so to where (halfway house or community) and under what conditions, and appropriate referral to treatment or programming for criminogenic needs. Although they were never designed, nor should they be used, to assist in the conviction process, the LS instruments may be used to assist in making bail or other pre-conviction decisions. The instruments must be administered by a trained assessor. With a combination of both static and dynamic items, they are designed to predict recidivism and other antisocial behaviour, such as institutional misconduct or breach of supervision, over both the short (less than six months) and long (more than two years) term.
[64] See J Bonta “Twenty-five Years of the Level of Service (LS) Instruments”, <https: // www. linkedin. com/pulse/twenty-five-years-level-service-ls-instruments-james-bonta/>, accessed on 5 May 2025; and J S Wordsmith and J Bonta “The Level of Service (LS) Instruments”, being Chapter 6 of J P Singh et al Handbook of Recidivism Risk/Need Assessment Tooks, Wiley (November 2017) which in turn refers to D A Andrews, J Bonta, and J S Worsmith (2008), The Level of Service/Risk, Need, Responsivity (LS/RNR). User’s manual, On. Multi-Health Systems.
[65] J S Wordsmith and J Bonta “The Level of Service (LS) Instruments”, being Chapter 6 of J P Singh et al Handbook of Recidivism Risk/Need Assessment Tooks, Wiley (November 2017), at page 117.
The LS/RNR Form records that copyright in the form is held by Multi-Health Systems Inc. Again, although it is not open to me to treat this as evidence, it would be useful to refer to the following statement which appears at the webpage of Multi-Health Systems Inc:[66]
The Level of Service/Risk, Need, Responsivity (LS/RNR) is designed for public safety organizations who want to use the most current research when conducting their level of service risk assessment but already have a case management process that suits their needs. The LS/RNR assesses the rehabilitation needs of justice-involved individuals, their risk of recidivism, and the most relevant factors related to supervision and programming.
[66]
The LS/RNR Form requires users to specify the name and other basic attributes of the “offender”, and to provide the information the form seeks. The opening part contemplates that the “offender” in relation to whom the form is to be completed would be interviewed; and the LS/RNR Form contains the handwriting “26/9/24” next to the printed words “Interview Date”, suggesting that the applicant was interviewed on 26 September 2024. It is common ground, however, that the applicant was not interviewed by the person who completed the LS/RNR Form, or by any other person for the purpose of the applicant providing information that was relevant to the completion of the LS/RNR Form. The opening part of LS/RNR Form also contemplates that the person completing the form would specify the “Referral Sources”, the “Reason for Referral”, the “Sentence”, and the “Present Offences”; but this information is not recorded.
The LS/RNR Form then provides the following guidance for its completion:
The LS/RNR^TM assessment is a quantitative survey of offender attributes and situations relevant to decision-making regarding level of service. Some items are in a No/Yes format, and some are in a 3-2-1-0 rating format, based on the following scale
3: A satisfactory situation with no need for improvement
2: A relatively satisfactory situation with some minor room for improvement
1: A relatively unsatisfactory situation with a need for improvement
0: A very unsatisfactory situation with a very clear and strong need for improvement.
Place an X over the appropriate response for each item, whether it is a Yes, No, or a rating number. Responses transfer through to the scoring sheet beneath for quick tallying of the subcomponent and total scores. If the section is a strength for the offender, place an X in the Strength Box. When there is insufficient information to respond, circle the item number. Complete and score Section 1 before completing Sections 2 to 8. Refer to the LS/RNR Scoring Guide for rating guidelines.
There then appears section 1, which is headed “General Risk/Need Factors”. This section lists 43 questions or matters in response to which the person completing the form is required to answer “yes” or “no” or assign a rating number from 0 - 3. The questions and matters appear under eight headings:
(a)“Criminal History” (CH), requiring the selection of “yes” or “no” to eight questions. “Yes” was selected for 5 of the questions.
(a)“Education/Employment” (EE), requiring the selection of “yes” or “no” to 6 questions, and the rating of three matters. “Yes” was assigned to 5 of the 6 questions; and “0” was assigned to three matters, these being “Participation/Performance”, “Peer interactions”, and “Authority interaction”.
(b)“Family/Marital” (FM), requiring the rating of three matters, and the selection of “yes” or “no” for another matter. The rating of “0” was assigned to all three matters, these being “Dissatisfaction with marital or equivalent situation”, “Nonrewarding, parental”, and “Nonrewarding, other relatives”.
(c)“Leisure/Recreation” (LR), requiring the selection of “yes” or “no” to one matter, and the rating of one matter. The rating of “0” was assigned to “Could make better use of time”.
(d)“Companions” (CO), requiring the selection of “yes” or “no” to two matters, and the rating of two matters. “Yes” was assigned to “Some criminal acquaintances”, and “No” was assigned to “Few anticriminal acquaintances” and the ratings of “1” and “0” were assigned to “Some criminal friends” and “Few anticriminal friends” respectively.
(e)“Alcohol/Drug Problem” (ADP), requiring the selection of “yes” or “no” to six matters. “Yes” was assigned to five of the matters, these being “Alcohol problem ever”, “Drug problem, ever”, , and, if “a current alcohol/drug problem exists”, to “Law violations”, “Marital/Family”, and “Medical or other clinical indicators” although, in relation to this last matter, the form required that those indicators be specified, but that part of the form is not completed, but the form does not do so. A rating of “1” was assigned to “Alcohol Problem, currently”, and a rating of “2” was assigned to “Drug problem, currently”. The form required the specification of the “type of drug(s)”, but that part of the form is not completed.
(f)“Procriminal Attitude/Orientation” (PA), requiring the selection of “yes” and “no” to two matters, and the assignment of a rating of two others. A rating of “0” is assigned to “Supportive of crime” and a “1” to “Unfavourable toward convention”. “Yes” was assigned to “Poor, toward sentence/offence”, and “Poor, toward supervision/treatment”.
(g)“Antisocial Pattern” (AP), requiring a “yes” or “no” response to four questions, and marking at least one of the particulars for each of those questions. “Yes” was assigned to each of the following:
(i)“Specialized assessment for antisocial pattern”.
(ii)“Early and diverse antisocial behaviour”, in support of which the following were circled: “Official record of assault/violence”, and “Charge laid, probation breached, or parole suspended during prior community supervision”.
(iii)“Criminal attitude”, in support of which the following were circled: “Supportive of Crime”, “Unfavourable toward convention”, and “Poor, toward supervision/treatment”.
(iv)“Pattern of generalized trouble”, in support of which the following are circled: “Financial problems”, “Never employed for a full year”, “Less than regular grade 10 or equivalent”, “Suspended or expelled at least once” (this appears to have been circled in error), “Nonrewarding, parental”, “Could make better use of time”, and “Few anticriminal friends”.

Before I consider the parties’ submissions, it would be convenient if I identify some of the legal principles that are relevant to this part of ground 4.
Some principles[145]
[145] In this section of my reasons, I substantially reproduce what I said in EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729, at [62]-[66].
Although Chapter 1 of the Constitution vests the legislative power of the Commonwealth in the Parliament, that does not deny Parliament the power to authorise subordinate legislation (regulations). In Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan, Dixon J identified the following rationale of reserving to Parliament the power to authorise the making of regulations:[146]
In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute . . . and the rule that upon the repeal of the statute, the regulation fails. . . . Major consequences are suggested by the emphasis laid . . . upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands.
[146] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, at page 102.
Given that the making of regulations must have as its source a statute, there are two essential conditions to the validity of any regulation. The first is the statute contains a provision (empowering provision) that authorises the making of regulations. The second is that the regulations fall within the terms of the empowering provision. The first question, and often the only question, that must be asked, therefore, when the validity of a regulation is in issue, is whether the regulation falls within the scope of the empowering provision. In determining that question:[147]
the court has a threefold task: first to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make, secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description.
[147] McEldowney v Forder [1971] AC 632, at page 658 (Lord Diplock).
In Esmonds Motors Pty Ltd v Commonwealth Barwick CJ described the approach a court should take when determining whether a regulation falls within an empowering provision as follows:[148]
The answer to the question whether the Minister is so authorized [under an ordinance to make the regulation in question] is to be found upon a full consideration of the Ordinance read as a whole with the object of finding in its expressions the intention with which it was made and, in particular, the intended extent of the regulation making-power given to the Minister: and an examination of the ambit of the regulations considered in relation to the scope and purpose of the Ordinance so ascertained: see Morton v. Union Steamship Co. of New Zealand Ltd [(1951) [1951] HCA 42; 83 CLR 402]
[148] Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463, at page 466 (Barwick CJ).
It will be seen that his Honour referred to Morton. That case concerned the validity of a regulation made pursuant to an enabling power that was expressed in very general terms,[149] and which contained “no provision in the Act prescribing any matter or expressly permitting any matter to be prescribed to which the regulation would be relevant”.[150] In that context, the High Court said (emphasis added):[151]
A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.
[149] “The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Excise” (Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at pages 409-410).
[150] Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at page 410.
[151] Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at page 410.
In Plaintiff M47-2012 v Director-General of Security, Hayne J referred to the emphasised portion of this passage and said:[152]
Thus the notion of inconsistency embraced by the common form of regulation making power — to make regulations “not inconsistent with this Act” — is not sufficiently described by reference only to the metaphor of “covering the field” which has in the past been used in connection with s 109 of the Constitution. Rather, as was said in the passage quoted from Morton, the question is whether the regulation in question varies or departs from (in other words alters, impairs or detracts from) the provisions of the Act.
[152] Plaintiff M47-2012 v Director-General of Security [2012] HCA 46, at [174] (footnotes omitted).
Also in Plaintiff M47-2012 v Director-General of Security, French CJ said as follows:[153]
Regulations made under s 504 must be “not inconsistent with” the Migration Act. Even without that expressed constraint delegated legislation cannot be repugnant to the Act which confers the power to make it. Repugnancy or inconsistency may be manifested in various ways. An important consideration in judging inconsistency for present purposes is “the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned”. A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will “extend the scope or general operation of the enactment but [are] strictly ancillary”. In considering whether there has been a valid exercise of the regulation-making power “[t]he true nature and purpose of the power must be determined”.
[153] Plaintiff M47-2012 v Director General of Security [2012] HCA 46, at [54] (footnotes omitted).
In this passage French CJ uses the word “repugnant”; and the applicant, in his submissions, characterises that which renders reg 2.25AB and reg 2.25AE their being “repugnant” to the Act. There does not seem to be any difference between the terms “inconsistent” and repugnant” when comparing the effect of one statutory provision with the effect of another statutory provision. It follows I will use the words “inconsistent” and “repugnant” interchangeably.
Parties’ submissions
In his counsel’s written submissions, the applicant submits as follows:
(a)To determine whether the impugned regulations are repugnant to the Act it is necessary to identify any intention or scheme evidence in the Act, and then enquire whether the impugned regulations depart from that intention or scheme.[154]
(b)The relevant scheme and intention of the Act are found in s 76E and s 338(4)(c) of the Act. Beech-Jones J, in YBFZ, identified s 76E as falling within a suite of “due process” provisions in connection with the grant of a BVR.[155]
(c)The scheme that emerges from these provisions is that the Act confers a power that is capable of exercise without any duty by the repository of the power to afford procedural fairness to the non-citizen who is affected by the exercise of the power, but then introduces a mechanism by which the affected person’s voice may be heard. That mechanism is the availability pursuant to s 76E of the Act of the right to make representations to the Minister and, if the Minister maintains the original position, the availability of review by the ART. The obvious purpose of this scheme is to allow the non-citizen to be heard on the question whether, among other things, the monitoring device condition should be imposed on the BVR visa granted to him or her.[156]
(d)The scheme referred to in (c) is undermined by the impugned regulations because they purport to permit the Minister to grant the non-citizen (without application) a fresh BVR (second BVR) that may be subject to the same conditions as a BVR the Minister may have previously granted to the non-citizen (first BVR), and in relation to which the non-citizen may have made representations pursuant to s 76E(4) of the Act. If the Minister chooses to grant a second BVR in these circumstances, that will result in the Minister not being required to consider the representations the non-citizen may have made in relation to the first BVR. Thus, if the impugned regulations are valid, there would be “nothing preventing further exercises of power under [reg] 2.25AB, again and again, to practically prevent” the consideration of the non-citizen’s representations against the imposition of one or more of the conditions.[157]
[154] Applicant’s Further Submissions, [36].
[155] Applicant’s Further Submissions, [37] and [38], in the latter paragraph referring to YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [292]-[293], [295].
[156] Applicant’s Further Submissions, [39].
[157] Applicant’s Further Submissions, [41]-[42].
The Minister, in his counsel’s written submissions, submits there is no repugnancy between reg 2.25AB and reg 2.25AE, on the one hand, and the Act, on the other. The Minister principally relies on s 76E(6) of the Act which provides that, “[t]o avoid doubt, nothing in this section prevents the grant, from time to time, of a Subclass 070 (Bridging (Removal Pending)) visa to the non-citizen”. The Minister further submits there is nothing in the Act or in the Administrative Review Tribunal Act 2024 (Cth) (ART Act) which provides that the applicant will never, or can never, have his representations considered under s 76E(4), or have a right to review any such decision. The Minister submits:[158]
[T]he proper construction of the Migration Act along with the ART Act confirm that, subject to the applicant engaging the Tribunal’s jurisdiction, the Tribunal can review (if necessary) both the 14 November 2024 decision and the 6 May 2025 decision. The Tribunal could then re-exercise the power in s 76E(4), if relevantly satisfied for the purposes of s 76E(4)(b), to “grant the non‑citizen another Subclass 070 (Bridging (Removal Pending)) visa … that is not subject to any one or more of the conditions prescribed for the purposes of subsection (1)”. Then, as the statutory note to s 76E(4) explains, “[i]f the Minister [or the Tribunal in its place] grants the second visa, the first visa will cease to be in effect, and the visa period for the first visa will end, on the grant of the second visa (see subsections 68(4) and (5)).”
[158] Respondent’s Further Outline of Submissions, [25].
In oral address counsel for the Minister submitted that the effect of s 76E of the Act is to allow for a rolling series of visas, and to allow for a merits review process in that context. Counsel emphasised the effect of the Minister and, on review, the ART, exercising the power conferred by s 76E(4) favourably to an applicant in relation to representations the applicant will have made pursuant to s 76E(3) in relation to the first BVR; the Minister, or the ART on review, would be required to grant the applicant who was granted the first BVR a fresh BVR without the conditions to which the first BVR was subject. That would lead to the cessation of effect of the second BVR.
Determination
It is the case, as the Minister submits, that s 76E(6) provides that nothing in s 76E “prevents the grant, from time to time” of a BVR to a non-citizen. But that by itself does not imply that the Minister has power to grant a second BVR for the period (Review Period) that begins on the date on which one or more of the Prescribed Conditions is or are imposed and ends on the latest of the following three dates:
(a)the time as prescribed by the Regulations by which the BVR grantee may make representations pursuant to s 76E(3) of the Act;
(b)the time by which the BVR grantee must apply to the ART in relation to a decision the Minister makes under 76E(4) not to grant a BVR that is not the subject of the Prescribed Conditions; or
(c)where the BVR grantee makes an application for review to the ART in relation to a decision referred to in (b), the date on which the ART decides the application for review.
Whether the Minister has such power turns on the proper construction of s 76E having regard to s 68(4) and s 68(5) of the Act. As I noted earlier in these reasons, and as the legislative note to s 76E(4) of the Act itself states, the effect of s 68(4) and s 68(5) is that a BVR (first BVR) ceases to have effect when a later BVR (second BVR) is granted.
Where the grantee of a first BVR makes representations to the Minister under s 76E(3) of the Act in relation to the imposition of one or more of the Prescribed Conditions, s 76E(4) imposes a duty on the Minister to consider the representations, and requires the Minister to grant a “second” BVR without one or more of the Prescribed Conditions to which the first BVR is subject if the Minister is not satisfied of the matters specified in s 76E(4). In these circumstances, it would be repugnant to the scheme established by s 76E of the Act, which includes the availability of merits review to the ART, if it were supposed that the Minister could grant a second BVD at any time during the Review Period. If such power existed, and the Minister exercised it, then, under s 68(5) of the Act, the first BVR would cease to have effect. That would render inoperative the rights conferred by s 76E(3) and s 338(4)(c) of the Act. That would be so because those rights are directed to the imposition of one or more of the Prescribed Conditions attached to a BVR; and those conditions are incapable of existing if the BVR in relation to which they were imposed ceased to have effect. If the conditions cease to exist because of the ceasing of effect of the BVRs to which they are attached, there would be nothing in relation to which the BVR grantee could make representations to the Minister pursuant to s 76E(3), or in relation to which the BVR grantee can make an application for review pursuant to s 338(4)(c) of the Act.
In truth, the Act does not confer power on the Minister to grant a fresh BVR during the Review Period. The avoidance of doubt to which s 76E(6) is directed is doubt that may arise in relation to the Minister’s power to grant a second BVR at any time outside the Review Period that may apply to the first BVR. In these circumstances, reg 2.25AB or reg 2.25E will be repugnant if they purport to authorise the Minister to grant a second BVR at any time during the Review Period that relates to a first BVR. Do they so purport to authorise the Minister? I am satisfied they do not.
Reg 2.25AB(2) goes not further than granting a discretionary power on the Minister to grant a BVR. It does not by its terms authorise the Minister to grant a BVR when there is on foot a BVR in relation to which the BVR grantee has made representations under s 76E(3) of the Act, or has applied for review to the ART under s 338(4)(c) of the Act. As for reg 2.25AE, subreg 2.25AE(1) provides that where a BVR has been subjected to any one or more of the Prescribed Conditions, the BVR is to be subject to those conditions for 12 months; and subreg 2.25AE(2) provides that reg 2.25AE(1) does not prevent the Minister from granting a BVR before or after the 12 month period provided for in that subregulation. Reg 2.25AE(2) is entirely permissive, and does not in terms authorise the Minister to grant a second BVR where the first BVR is subject to a Relevant Period.
Conclusion
Neither reg 2.25AB nor reg 2.25AE is repugnant to the scheme provided for by s 76E and s 338(4)(c) of the Act. If, however, contrary to what I have found, the First Decision was not infected by jurisdictional error, it would not have been open to the Minister to have granted another BVR before the expiration of the Review Period in relation to the BVR the delegate granted the applicant on 14 November 2024.
GROUND 5 – REGS 2.24AB AND 2.25AE BEYOND REGULATION MAKING POWER
Ground 5 is as follows:
Further and alternatively, each of the 14 November and 6 May decisions are void because regs 2.25AB and 2.25AE(2) and (3) of the Regulations exceed the regulation-making power in s 504(1) of the Act and are invalid.
Particulars
(a) Section 65(1) of the Act empowers the Minister to grant a visa, after considering a valid application for the visa, if satisfied that (inter alia) the prescribed criteria for the visa have been satisfied.
(b)Section 73 of the Act empowers the Minister to grant a bridging visa, without requiring a valid application, as follows: “If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa to the non-citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens”.
(c)Section 504(1) of the Act relevantly provides that “The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act”.
(d) Regulation 2.25AB of the Regulations purports to confer on the Minister a discretionary power to grant a BVR to a non-citizen who is an eligible non-citizen under subregulations 2.20(18) or (19) “[d]espite anything in Schedule 1 and Divisions 070.2 to 070.4 of Part 070 of Schedule 2”.
(e)Regulations 2.25AE(2) and (3) purport to confer on the Minister a discretionary power to impose conditions on the BVR grant before or after 12 months from the day the previous BVR grant was issued. The subsequent BVR is then subject to those conditions for a further 12 months from the day that visa was granted.
(f)Divisions 070.2 to 070.4 of Part 070 of Schedule 2 contain criteria for a Bridging R visa prescribed under s 31(3): reg 2.03(1).
(g)By purporting to empower the Minister to grant a BVR to an eligible non-citizen without application regardless of whether the non-citizen satisfies the criteria for the visa prescribed under s 31(2), regs 2.25AB and 2.25AE(2) and (3) are inconsistent with s 73 of the Act and are invalid.
(h) Further and alternatively, the conferral on the Minister of the power to grant a visa to an eligible non-citizen subject to conditions under regs 2.25AB and 2.25AE(2) and (3) is not a matter which is “required or permitted to be prescribed” or which is “necessary or convenient to be prescribed for carrying out or giving effect to this Act” and accordingly is beyond the regulation-making power conferred by s 504(1).
Parties’ submissions
In his counsel’s written submissions the applicant submits as follows:
(a)Subsection 504(1) of the Act grants a power to make regulations for “all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act”.
(b)What is “required or permitted to be prescribed” or what is “necessary or convenient to be prescribed” must be discerned from the rest of the Act.
(c)Unlike s 65(1) of the Act, which grants the Minister power to grant a visa “after considering a valid application for the visa”, s 73 does not require the Minister to grant a bridging visa after a valid application for such a visa is made; it empowers the Minister to grant to an eligible non-citizen a bridging visa if the eligible non-citizen “satisfies the criteria for a bridging visa as prescribed under subsection 31(3)”.
(d)The criteria for the grant of a BVR, however, is contained in Part 070.2 of Schedule 2 to the Regulations. The applicant does not meet the criteria; yet reg 2.25AB and reg 2.25AE purport to empower the Minister to grant a BVR in any event. For that reason, reg 2.25AB and reg 2.25AE cannot be characterised as being required or it being necessary or convenient to be prescribed for the purposes of the Act, and in particular s 73, because such criteria have been prescribed.

The Minister submits that, on the proper construction of reg 2.03(1)(a) of the Regulations, reg 2.25AB and reg 2.25AE are regulations prescribed for the purposes of s 31(3) of the Act. I do not need to set out the elements of the Minister’s submissions because I accept them.
Determination
The determination of ground 5 turns on the identification of the provisions that relate to the granting of bridging visas, the means by which the Regulations prescribe the criteria for the grant of classes of bridging visas, and the proper construction of the regulations by means of which the criteria for classes of bridging visas have been prescribed.
The starting point is s 37 of the Act which provides there “are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF”. Subsection 31(2) of the Act identifies bridging visas provided for by s 37 as being one of the classes of visa identified in that subsection, which are classes of visas in addition to the classes of visas that may be prescribed by s 31(1) of the Act. Subsection 31(3) then provides that the regulations may prescribe criteria for a visa or visas of a specified class which, without limiting the generality of this subsection, may be a class provided for by s 37.
Next, it is necessary to turn to the Regulations which prescribe the criteria for classes of visa; and that is contained in reg 2.03(1) of the Regulations (emphasis added):
For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to other provisions of these Regulations, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant Part of Schedule 2; or
(b)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
Reg 2.03(1) contemplates that the criteria set out in a relevant Part of Schedule 2 can be made subject to any other regulation. That is what reg 2.25AB and reg 2.25AE do; they make the operation of Part 070 of Schedule 2 subject to reg 2.25AB and reg 2.25AE in the circumstances in which those regulations apply.
For these reasons, ground 5 fails.
DISPOSITION
The applicant succeeds on grounds 1 and 3; he does not succeed on ground 4 to the extent the applicant claims reg 2.25AB and reg 2.25AE are repugnant to the Act; and the applicant fails on his claim that reg 2.25AB and reg 2.25AE are beyond the regulation making power conferred by s 504(1) of the Act. Given the applicant has succeed on ground 1, it is unnecessary to consider whether a writ of mandamus should issue in relation to the Minister’s obligation that would have accrued on the applicant’s having made the representations under s 76E(3) of the Act had the First Decision been validly made.
I next turn to the relief that should be granted to give effect to my conclusions. I have concluded that the delegate made a jurisdictional error on 14 November 2024 in deciding, purportedly pursuant to the current cl 070.612A(1), to impose the curfew and monitoring device conditions when deciding to grant a BVR to the applicant. The consequence of that conclusion is that the delegate’s purporting to have imposed the curfew and monitoring device conditions on the BVR the delegate granted to the applicant on 14 November 2024 was and is of no legal effect. That does not otherwise affect the validity of the delegate’s grant of the BVR. The appropriate remedy, therefore, is a declaration that the imposition of the curfew and monitoring device conditions on the BVR the delegate granted the applicant on 14 November 2024 was of no legal effect, and the BVR the delegate granted was not at any time subject to those conditions.
Given my finding that the imposition of the curfew and monitoring device conditions on the BVR granted on 14 November 2024 was of no legal effect, the representations the applicant made purportedly pursuant to s 76E(3) of the Act on the assumption that the delegate had validly imposed the curfew and monitoring device regulations are also of no legal effect. That means there was no Relevant Period that applied to the granting of the first BVR and, therefore, it was open to the delegate to grant a new BVR on 6 May 2025. Given, however, I have found that the delegate also made a jurisdictional error by having purported on 6 May 2025 to impose the monitoring device condition, the delegate’s imposition of the monitoring device is of no legal effect, although that does not otherwise affect the validity of the granting of the BVR to the applicant on 6 May 2025. The appropriate remedy, therefore, is a declaration that the imposition of the monitoring device condition on the BVR the delegate granted to the applicant on 6 May 2025 is of no legal effect, and the BVR that was granted is not subject to that condition.
I will therefore make declarations. Out of an abundance of caution, I will grant the parties liberty to apply within 14 days after I pronounce orders for any other order the parties may wish to submit will give further or better effect to these reasons. I also propose to order that the Minister pay the applicant’s costs, as agreed or as assessed.

I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 19 September 2025

[35] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40, at [83].

File number(s):	SYG 3372 of 2024
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	19 September 2025
Catchwords:	MIGRATION – application for remedies in relation to decisions delegates of the Minister made on 14 November 2024 and 6 May 2025 purportedly pursuant to reg 2.25AB of the Migration Regulations 1994 (Cth) (Regulations) and cl 070.612A(1) of Schedule 2 to the Regulations to impose curfew and monitoring device conditions on the grant of a Class WR Bridging R (Removal Pending) (subclass 070) visa (BVR) – whether the delegates considered each of the prerequisites the delegates were required to consider before the delegates could be satisfied that the curfew and monitoring device conditions could be imposed – whether reg 2.25AB and reg 2.25AE are repugnant to the Migration Act 1958 (Cth) (Act)– whether those regulations are beyond the regulation making power conferred by s 504(1) of the Act – the delegates did not consider and therefore did not reach the requisite state of satisfaction in relation to an essential prerequisite to the granting of the curfew and monitoring device conditions – regulations 2.25AB and 2.25AE are not repugnant to the Act nor their making beyond s 504(1) of the Act – declaratory relief granted.
Legislation:	Constitution CHIII Administrative Review Tribunal Act 2024 (Cth) Criminal Code Act 1995 (Cth) Part 10.6 Migration Amendment Act 2024 (Cth) Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), Item 5 of Schedule 1, Item 2, Item 3, Item 7, Item 8 of Part 1 of Schedule 2, Migration Act 1958 (Cth) ss 31, 37, 41, 65, 68, 72, 73, 76E, 82, 189(1), 338(4)(c), 476(1), 501(2), 504(1) Migration Amendment (Bridging Visa Conditions) Regulations 2023 (Cth) Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) Migration Regulations 1994 (Cth), reg 2.01(2), reg 2.03(1)(a), reg 2.20, reg 2.25AA, reg 2.25AB, reg 2.25AD(1), reg 2.25AE, cl 070.612A, cl 070.111 of Sch 2, Division 070.6 of Part 070 of Sch 2, Sch 8 Trade Practices Act 1974 (Cth) s 82(1) (repealed)
Cases cited:	BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463 EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729 Garlett v Western Australia [2022] HCA 30 Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 McEldowney v Forder [1971] AC 632 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mineralogy Pty Ltd v Western Australia [2021] HCA 30 Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Plaintiff M47-2012 v Director-General of Security [2012] HCA 46 Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50 Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No.2) [2008] FCA 1521 Sultan & Ors v Minister for Immigration and Multicultural Affairs [2025] HCASJ 17 Thomas v Mowbray [2007] HCA 33 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA
Division:	General
Number of paragraphs:	143
Date of last submission/s:	29 August 2025
Date of hearing:	28 August 2025
Place:	Sydney
Counsel for the Applicant:	Mr D Hughes
Solicitor for the Applicant:	Legal Aid
Counsel for the Respondent:	Mr P Knowles SC with Mr T Liu
Solicitor for the Respondent:	Australian Government Solicitor

SYG 3372 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DVRL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	19 SEPTEMBER 2025