• Specific Year
    Any

MIGRATION ACT 1958 - SECT 197C Relevance of Australia's non - refoulement obligations to removal of unlawful non - citizens under section 198

MIGRATION ACT 1958 - SECT 197C

Relevance of Australia's non - refoulement obligations to removal of unlawful non - citizens under section 198

  (1)   For the purposes of section   198, it is irrelevant whether Australia has non - refoulement obligations in respect of an unlawful non - citizen.

  (2)   An officer's duty to remove as soon as reasonably practicable an unlawful non - citizen under section   198 arises irrespective of whether there has been an assessment, according to law, of Australia's non - refoulement obligations in respect of the non - citizen.

  (3)   Despite subsections   (1) and (2), section   198 does not require or authorise an officer to remove an unlawful non - citizen to a country if:

  (a)   the non - citizen has made a valid application for a protection visa that has been finally determined; and

  (b)   in the course of considering the application, a protection finding within the meaning of subsection   (4), (5), (6) or (7) was made for the non - citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

  (c)   none of the following apply:

  (i)   the decision in which the protection finding was made has been quashed or set aside;

  (ii)   a decision made under subsection   197D(2) in relation to the non - citizen is complete within the meaning of subsection   197D(6);

  (iii)   the non - citizen has asked the Minister, in writing, to be removed to the country.

  (4)   For the purposes of subsection   (3), a protection finding is made for a non - citizen with respect to a country if a record was made in relation to the non - citizen under section   36A that the Minister is satisfied as mentioned in paragraph   36A(1)(a), (b) or (c) with respect to the country.

  (5)   For the purposes of subsection   (3), a protection finding is also made for a non - citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):

  (a)   the non - citizen satisfied the criterion in paragraph   36(2)(a) with respect to the country and also satisfied the criterion in subsection   36(1C);

  (b)   the non - citizen satisfied the criterion in paragraph   36(2)(aa) with respect to the country;

  (c)   the non - citizen:

  (i)   would have satisfied the criterion in paragraph   36(2)(a) with respect to the country except that subsection   36(3) applied in respect of the non - citizen; and

  (ii)   satisfied the criterion in subsection   36(1C);

  (d)   the non - citizen:

  (i)   satisfied the criterion in paragraph   36(2)(a) with respect to the country but did not satisfy the criterion in subsection   36(1C); and

  (ii)   would have satisfied the criterion in paragraph   36(2)(aa) with respect to the country except that the non - citizen was a non - citizen mentioned in paragraph   36(2)(a);

  (e)   the non - citizen:

  (i)   satisfied the criterion in paragraph   36(2)(a) with respect to the country but did not satisfy the criterion in subsection   36(1C); and

  (ii)   would have satisfied the criterion in paragraph   36(2)(aa) with respect to the country except that the non - citizen was a non - citizen mentioned in paragraph   36(2)(a) and subsection   36(2C) or (3) applied in respect of the non - citizen;

  (f)   the non - citizen would have satisfied the criterion in paragraph   36(2)(aa) with respect to the country except that subsection   36(2C) or (3) applied in respect of the non - citizen.

  (6)   For the purposes of subsection   (3), a protection finding is also made for a non - citizen with respect to a country if:

  (a)   the Minister was satisfied (however expressed and including impliedly) that, because subsection   36(4), (5) or (5A) applied to the non - citizen in relation to the country, subsection   36(3) did not apply in relation to the country; and

  (b)   a protection finding within the meaning of subsection   (4) or (5) was made for the non - citizen with respect to another country.

  (7)   For the purposes of subsection   (3), a protection finding is also made for a non - citizen with respect to a country in circumstances prescribed by the regulations.

  (7A)   For the purposes of subsection   (3), if an unlawful non - citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.

  (8)   For the purposes of subsection   (5), it is irrelevant whether or not the non - citizen satisfied any other criteria for the grant of a protection visa.

  (9)   For the purposes of subparagraph   (3)(c)(iii), a non - citizen who withdraws their written request to be removed to a country is taken not to have made that request.

Download

No downloadable files available