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MIGRATION ACT 1958 - SECT 198

Removal from Australia of unlawful non-citizens

Removal on request

             (1)  An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

Removal of transitory persons brought to Australia for a temporary purpose

          (1A)  In the case of an unlawful non-citizen who has been brought to Australia under section 198B for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

Note:          Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).

          (1B)  Subsection (1C) applies if:

                     (a)  an unlawful non-citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B for a temporary purpose; and

                     (b)  the non-citizen gives birth to a child while the non-citizen is in Australia; and

                     (c)  the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1).

          (1C)  An officer must remove the non-citizen and the child as soon as reasonably practicable after the non-citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).

Removal of unlawful non-citizens in other circumstances

             (2)  An officer must remove as soon as reasonably practicable an unlawful non-citizen:

                     (a)  who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

                     (b)  who has not subsequently been immigration cleared; and

                     (c)  who either:

                              (i)  has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

                             (ii)  has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

          (2A)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  the non-citizen is covered by subparagraph 193(1)(a)(iv); and

                     (b)  since the Minister's decision (the original decision ) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

                     (c)  in a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision--either:

                              (i)  the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

                             (ii)  the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.

Note:          The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.

          (2B)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

                     (b)  since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

                     (c)  in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision--either:

                              (i)  the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

                             (ii)  the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.

Note:          The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

             (3)  The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.

             (5)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

                     (a)  is a detainee; and

                     (b)  neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non-citizen has made a valid application for a bridging visa.

          (5A)  Despite subsection (5), an officer must not remove an unlawful non-citizen if:

                     (a)  the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and

                     (b)  either:

                              (i)  the grant of the visa has not been refused; or

                             (ii)  the application has not been finally determined.

             (6)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  the non-citizen is a detainee; and

                     (b)  the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

                     (c)  one of the following applies:

                              (i)  the grant of the visa has been refused and the application has been finally determined;

                             (ii)  the visa cannot be granted; and

                     (d)  the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

             (7)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  the non-citizen is a detainee; and

                     (b)  Subdivision AI of Division 3 of this Part applies to the non-citizen; and

                     (c)  either:

                              (i)  the non-citizen has not been immigration cleared; or

                             (ii)  the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

                     (d)  either:

                              (i)  the Minister has not given a notice under paragraph 91F(1)(a) to the non-citizen; or

                             (ii)  the Minister has given such a notice but the period mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

             (8)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  the non-citizen is a detainee; and

                     (b)  Subdivision AJ of Division 3 of this Part applies to the non-citizen; and

                     (c)  either:

                              (i)  the Minister has not given a notice under subsection 91L(1) to the non-citizen; or

                             (ii)  the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

             (9)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  the non-citizen is a detainee; and

                     (b)  Subdivision AK of Division 3 of this Part applies to the non-citizen; and

                     (c)  either:

                              (i)  the non-citizen has not been immigration cleared; or

                             (ii)  the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

                     (d)  either:

                              (i)  the Minister has not given a notice under subsection 91Q(1) to the non-citizen; or

                             (ii)  the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

           (10)  For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

           (11)  This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.



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