(2) Any variation of a residence determination must be such that the determination, as varied, will comply with subsections 197AB(1) and (2).
(3) A revocation or variation of a residence determination must be made by notice in writing to the person or persons covered by the determination.
197AE Minister not under duty to consider whether to exercise powers
The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.
197AF Minister to exercise powers personally
The power to make, vary or revoke a residence determination may only be exercised by the Minister personally.
197AG Tabling of information relating to the making of residence determinations
(1) If the Minister makes a residence determination, he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (2)):
(a) states that the Minister has made a determination under this section; and
(b) sets out the Minister’s reasons for making the determination, referring in particular to the Minister’s reasons for thinking that the determination is in the public interest.
(2) A statement under subsection (1) in relation to a residence determination is not to include:
(a) the name of any person covered by the determination; or
(b) any information that may identify any person covered by the determination; or
(c) the address, name or location of the place specified in the determination; or
(d) any information that may identify the address, name or location of the place specified in the determination; or
(e) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the determination—the name of that other person or any information that may identify that other person.
(3) A statement under subsection (1) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the residence determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the residence determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
Division 7A—Offences relating to immigration detention
197A Detainees must not escape from detention
A detainee must not escape from immigration detention.
Penalty: Imprisonment for 5 years.
197B Manufacture, possession etc. of weapons by detainees
(1) A detainee commits an offence if he or she manufactures, possesses, uses or distributes a weapon.
Penalty: Imprisonment for 5 years.
(2) In this section:
weapon includes:
(a) a thing made or adapted for use for inflicting bodily injury; or
(b) a thing where the detainee who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict bodily injury.
Division 8—Removal of unlawful non‑citizens etc.
Subdivision A—Removal
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) 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) 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) 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) 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.
197D Decision that protection finding would no longer be made
(1) This section applies in relation to a non‑citizen if:
(a) the non‑citizen is:
(i) an unlawful non‑citizen; or
(ii) a removal pathway non‑citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1); and
(b) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(c) in the course of considering the application, a protection finding, within the meaning of subsection 197C(4), (5), (6) or (7), was made for the non‑citizen with respect to a country (whether or not the protection visa was refused or was granted and has since been cancelled).
(2) If the Minister is satisfied that the non‑citizen is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.
(2A) A decision made under subsection (2) is a decision of a kind referred to in subparagraph 197C(3)(c)(ii), whether it is made in relation to:
(a) an unlawful non‑citizen; or
(b) a removal pathway non‑citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1).
(3) For the purposes of subsection (2), if a 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.
(4) If the Minister makes a decision under subsection (2) in relation to a non‑citizen, the Minister must, in writing, notify the non‑citizen of the following matters:
(a) the decision;
(b) the reasons (other than non‑disclosable information) for the decision;
(c) that the decision is reviewable by the ART;
(d) the period within which an application for review can be made;
(e) who can apply for review;
(f) where the application for review can be made.
Note: For the method by which the notification may be given, see section 494A.
(5) Failure to comply with subsection (4) in relation to a decision does not affect the validity of the decision.
(6) For the purposes of subparagraph 197C(3)(c)(ii), a decision under subsection (2) of this section is complete if any of the following apply:
(a) the period within which an application for review of the decision under Part 5 can be made has ended without an application for review having been properly made;
(b) an application for review of the decision under Part 5 was properly made within the period but has been withdrawn;
(c) the decision is affirmed (or taken to have been affirmed) on review by the ART.
(7) Section 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act does not apply in relation to a decision under subsection (2) of this section.
197E Relevance of Ministerial intervention powers to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non‑citizen.
(2) To avoid doubt:
(a) an officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unlawful non‑citizen; and
(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non‑citizen is irrelevant to whether or not the removal of the unlawful non‑citizen is reasonably practicable for the purposes of section 198.
(3) Subsection (1) applies whether a request is made by:
(a) the unlawful non‑citizen; or
(b) an officer of the Department; or
(c) any other person.
(4) Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.
Temporary suspension of duty to remove unlawful non‑citizens
(5) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unlawful non‑citizen, section 198 does not require or authorise an officer to remove the non‑citizen from Australia during the period covered by subsection (6).
Note: Despite this subsection, an unlawful non‑citizen who asks the Minister, in writing, to be removed, must be removed under subsection 198(1) (see subsection (11) of this section).
Period during which duty to remove is suspended
(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unlawful non‑citizen, unless:
(a) before the end of that 6 month period, the unlawful non‑citizen has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or
(b) the period ends earlier under subsection (7).
(7) For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:
(a) the end of the day the Minister decides not to exercise the Ministerial intervention power in relation to the unlawful non‑citizen;
(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non‑citizen;
(c) if the Minister exercises the power in relation to the non‑citizen, and subsection (8) specifies a day—the end of that day;
(d) if the Minister exercises the power in relation to the non‑citizen but the exercise does not result in the non‑citizen being able to make a visa application—the end of the day that the Minister exercises the power.
(8) For the purposes of paragraph (7)(c), this subsection specifies the following days:
(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the unlawful non‑citizen may make a visa application within a specified period—the last day of the period in which the non‑citizen could make the visa application;
(b) in any other case where, as a consequence of the exercise of the power, the non‑citizen may make a visa application—whichever of the following days occurs first:
(i) the last day of the period determined by the Minister in which the non‑citizen could make the visa application;
(ii) the day that is 3 months after the Minister exercises the power.
Working out start day for certain requests
(9) If the Minister decides to consider whether to exercise a Ministerial intervention power in relation to a particular category of requests for such exercise by unlawful non‑citizens, then, for the purposes of subsection (6), the start day, in relation to a particular unlawful non‑citizen, is the day that the non‑citizen’s request is received, in writing, by the Minister.
Scope of suspension of duty to remove unlawful non‑citizen
(10) To avoid doubt, subsection (5) of this section:
(a) prevents the removal of an unlawful non‑citizen during the period covered by subsection (6); but
(b) does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the eventual removal of the non‑citizen after the period ends.
Example: The Minister could give the unlawful non‑citizen a removal pathway direction under section 199C during the period covered by subsection (6).
Unlawful non‑citizen must be removed at non‑citizen’s request
(11) Despite subsection (5), an officer is required and authorised to remove an unlawful non‑citizen who asks the Minister, in writing, to be so removed under subsection 198(1).
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 or repealed section 198C 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 1: 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).
Note 2: Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).
(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 or repealed section 198C 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