(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.
(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.
No civil liability for removal
(12) No civil liability is incurred by an officer or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer in good faith and in the exercise of the officer’s powers, or the performance of the officer’s functions or duties, under this section in relation to a person:
(a) in relation to whom a decision has been made under section 501, 501A, 501B or 501BA; or
(b) in relation to whom a decision has been made to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C); or
(c) whose visa has ceased to be in effect under section 76AAA.
(13) No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:
(a) by the officer or officer of the Commonwealth in good faith and:
(i) in the exercise of the officer’s or the officer of the Commonwealth’s powers; or
(ii) in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or
(b) by a foreign country; or
(c) by any person in a foreign country;
in relation to the acceptance or receipt by a foreign country, or ongoing presence in a foreign country, of a person removed from Australia under this section, including any act or thing done or omitted to be done:
(d) under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or
(e) in relation to the third country reception functions (within the meaning of that section) of the country.
198AAA Collection, use and disclosure of information to foreign countries
(1) The Minister or an officer of the Department may collect, use, or disclose to the government of a foreign country, for a purpose mentioned in subsection (2), information (including personal information) about:
(a) a removal pathway non‑citizen; or
(b) a former removal pathway non‑citizen who does not hold a substantive visa or criminal justice visa.
Note: To avoid doubt, personal information includes criminal history information.
(2) The purposes are as follows:
(a) determining whether there is a real prospect of the removal of the non‑citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future;
(b) facilitating the removal of the non‑citizen from Australia under that section;
(c) taking action or making payments in relation to:
(i) a third country reception arrangement (within the meaning of section 198AHB); or
(ii) the third country reception functions (within the meaning of that section) of a foreign country;
(d) doing a thing that is incidental or conducive to the taking of an action, or the making of a payment, mentioned in paragraph (c);
(e) purposes directly or indirectly connected with, or incidental to, any of the above.
Circumstances in which information must not be disclosed
(3) However, information about a non‑citizen must not be disclosed to the government of a foreign country under subsection (1) if:
(a) the non‑citizen has made a valid application for a protection visa that has not been finally determined; or
(b) in the case of an unlawful non‑citizen—the non‑citizen cannot be removed to that country because of subsection 197C(3); or
(c) in the case of a lawful non‑citizen—the non‑citizen could not be removed to that country because of subsection 197C(3) if the non‑citizen were an unlawful non‑citizen.
Certain existing prohibitions do not apply
(4) Despite Division 3 of Part VIIC of the Crimes Act 1914, any other law of the Commonwealth, or any law of a State or Territory, this section has effect in relation to information about any conviction of an individual that is spent (however described) under any of those laws.
No limitation on existing powers
(5) This section does not limit any other powers the Minister or an officer of the Department has to collect, use or disclose information under this Act, the regulations or any other law of the Commonwealth.
Note: For example, the Minister or an officer of the Department may also collect, use, or disclose to a person or body, criminal history information for the purpose of informing the performance of a function or the exercise of a power under this Act or the regulations (see section 501M).
Natural justice does not apply
(5A) The rules of natural justice do not apply to an exercise of power under this section.
Definitions
(6) In this section:
government of a foreign country means:
(a) the government of the foreign country or of part of the foreign country; or
(b) an agency or authority of the government of the foreign country; or
(c) an agency or authority of the government of part of the foreign country; or
(d) a local government body or regional government body of the foreign country.
Subdivision B—Regional processing
198AA Reason for Subdivision
This Subdivision is enacted because the Parliament considers that:
(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
(b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
198AB Regional processing country
(1) The Minister may, by legislative instrument, designate that a country is a regional processing country.
(1A) A legislative instrument under subsection (1):
(a) may designate only one country; and
(b) must not provide that the designation ceases to have effect.
(1B) Despite subsection 12(1) of the Legislation Act 2003, a legislative instrument under subsection (1) of this section commences at the earlier of the following times:
(a) immediately after both Houses of the Parliament have passed a resolution approving the designation;
(b) immediately after both of the following apply:
(i) a copy of the designation has been laid before each House of the Parliament under section 198AC;
(ii) 5 sitting days of each House have passed since the copy was laid before that House without it passing a resolution disapproving the designation.
(2) The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country.
(3) In considering the national interest for the purposes of subsection (2), the Minister:
(a) must have regard to whether or not the country has given Australia any assurances to the effect that:
(i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and
(ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; and
(b) may have regard to any other matter which, in the opinion of the Minister, relates to the national interest.
(4) The assurances referred to in paragraph (3)(a) need not be legally binding.
(5) The power under subsection (1) may only be exercised by the Minister personally.
(6) If the Minister designates a country under subsection (1), the Minister may, by legislative instrument, revoke the designation.
(7) The rules of natural justice do not apply to the exercise of the power under subsection (1) or (6).
(9) In this section, country includes:
(a) a colony, overseas territory or protectorate of a foreign country; and
(b) an overseas territory for the international relations of which a foreign country is responsible.
198AC Documents to be laid before Parliament
(1) This section applies if the Minister designates a country to be a regional processing country under subsection 198AB(1).
(2) The Minister must cause to be laid before each House of the Parliament:
(a) a copy of the designation; and
(b) a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be a regional processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by the country; and
(c) a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and
(d) a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; and
(e) a summary of any advice received from that Office in relation to the designation; and
(f) a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country.
(3) The Minister must comply with subsection (2) within 2 sitting days of each House of the Parliament after the day on which the designation is made.
(4) The sole purpose of laying the documents referred to in subsection (2) before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation.
(5) A failure to comply with this section does not affect the validity of the designation.
(6) In this section, agreement includes an agreement, arrangement or understanding:
(a) whether or not it is legally binding; and
(b) whether it is made before, on or after the commencement of this section.
198AD Taking unauthorised maritime arrivals to a regional processing country
(1) Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.
Note: For when this section applies to a transitory person, see section 198AH.
(2) An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
Note: For how this subsection operates if the Minister has been requested to exercise, or is considering exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival, see section 198AHC.
(2A) However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.
Note 1: Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.
Note 2: This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.
Powers of an officer
(3) For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:
(a) place the unauthorised maritime arrival on a vehicle or vessel;
(b) restrain the unauthorised maritime arrival on a vehicle or vessel;
(c) remove the unauthorised maritime arrival from:
(i) the place at which the unauthorised maritime arrival is detained; or
(ii) a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(4) If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia:
(a) subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and
(b) section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.
Ministerial direction
(5) If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.
(6) If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.
(7) The duty under subsection (5) may only be performed by the Minister personally.